JUSTICE J. M. MALIK, PRESIDING MEMBER 1. Counsel for the parties are present. Evidence has been filed. 2. Arguments heard. 3. Shri Rajesh Kumar Agarwal, the complainant booked a residential flat and was initially allotted a flat in Tower No.T-17, Flat No.802 by the OP-Parsvnath Developers Ltd.. The complex was known as Parsvnath Village. Subsequently, the allotment was changed and both the parties agreed to get flat No.T8, 801. The agreement was entered into between the parties on 04-07-2007. It was agreed that the plot would be given within a period of 36 months. The counsel for the opposite party has also invited our attention towards clause 8(b) of the agreement which runs as follows: “(b) The area of the Flat agreed to be sold is provisional. If during the course of construction or otherwise the number of the Flat or its area or location changes, the final re-allocation will be done by the Developer whose decision shall be final and binding on the Buyer will have no claim on this account except that the price would be payable on the basis of the revised area of the Flat. In case for any reasons the whole or any part of the project is abandoned and/or the Flat agreed to be sold herein is deleted and by reasons thereof Developer is not in a position to give possession of the Flat, the Buyer shall have no claim of any kind, whatsoever, against the Developers except to the refund of the amount paid with simple interest at the rate of 12% per annum till the date of refund.” 4. This is an admitted fact that even after the elapse of nine years the flat is not ready. The counsel for the complainant has invited our attention towards the proposed site plan and the current position of the structure in question by showing the brochure and the latest photo. The counsel for the opposite party submits that she does not know whether the photographs submitted before us are the actual one of the current position. Thereafter, we asked the counsel for the opposite party when will they handover the possession to the complainant, she is unable to answer this knotty question and wants to seek instructions. The photo reveals that the construction is at the initial stage. 5. However, the complainant, who, is present in the Commission submits that at this stage he does not want to have this flat. According to him one decade has elapsed. He applied for the flat when he was aged about 50 years but now he is 60 years of age. He is still roaming in the rented houses one after the other. He further submits that he has suffered harassment, mental agony, disappointment, frustration and sadness at the hands of the opposite party. He prays that his amount should be returned with interest. 6. Counsel for the petitioner submits that the petitioner is bound by the terms and conditions of the agreement and as per Section 8 he should be granted interest at the rate of 12% per annum. 7. On the other hand the counsel for the complainant has cited our own judgment in case of Subhash Chander Mahajan Vs. Parsvanath Developers Ltd., CC No.144 of 2011, decided on 05-05-2014. Para No.10 of the said judgment runs as follows: “10. We find force in the arguments raised by the counsel for the OP, in a measure. The complainants cannot claim interest @ 24% p.a. They are bound by the agreement entered into between the complainants and the OP. It is to be assumed that the parties had signed the agreement with open eyes and after understanding its each and every covenant. However, we are aware of a case where the Apex Court had granted interest @ 18% p.a., wherein the money in respect of the flat was returned. This was so held by the Apex Court in the case of K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012. Even if the value is calculated at the rate of 18% p.a., it will be more than Rupees One Crore.” Para No.14 runs as follows: “Keeping in view the facts and circumstances of these cases, we accept both these complaints, partly, and direct the OP, in CC No.144/2011, to pay a sum of Rs.50,78,998/- with interest @ 18% p.a., from the date of deposit, till its realization. It is further directed to pay compensation in the sum of Rs. 7.00 lakhs, (@ Rs. 1,00,000/- per year, from 2007 onwards) within a period of 90 days from the date of this order, for harassment, mental agony, anguish, frustration, anger and sadness, otherwise, after the expiry of 90 days it will carry interest @ 24% p.a. till its realization. We also grant a sum of Rs.2,00,000/- towards costs of this case.” 8. The order passed in the case of Subhash Chandra Mahajan (supra) was upheld by the Supreme Court as per the arguments raised by the counsel for the complainant. The order has also been attached as Annexure C-8. 9. In the result we hereby direct the OP to pay the complainant Shri Rajesh Kumar Agarwal the total amount of Rs.47,41,967/- (subject to exact amount) along with interest at the rate of 18% per annum from the date of deposit till its realization. The complainant is also granted compensation in the sum of Rs.4,50,000/- i.e. Rs.50,000/- per annum from 2007 onwards. The amount should be paid within a period of 90 days from the date of this order. After expiry of 90 days it will carry interest at the rate of 18% per annum till its realization. We also impose costs of Rs.1,00,000/- towards costs and litigation charges of this case. 10. The complaint stands disposed of. A copy of this order be given dasti to the parties on 28-04-2016. |
