DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.: 1 of 2010 Date of Inst: 07.01.2010. Date of Decision: 06.08.2010 1. Vinod Kathuria s/o Mr.Sunder Das Kathuria & 2. Ms.Anuradha Kathuria w/o Mr.Vinod Kathuria Both r/o Old Vicarage Ellenhall, Stafford, England-ST216JQ also r/o H.No.80-D, Sector 1, Parwanoo. ---Complainants V E R S U S 1] Parsvanath Developers Limited, Regd. & Corp. Office at 6th Floor Arunachal Building 19, Barakhamba Road, New Delhi-110001 2nd Address:- SCO No.1, First Floor, Sector 26, Madhya Marg, Chandigarh. 2] Chandigarh Housing Board, Office at 8 Janmarg, Sector 9, Chandigarh. ---Opposite Parties QUORUM SHRI LAKSHMAN SHARMA PRESIDENT SHRI ASHOK RAJ BHANDARI MEMBER SMT.MADHU MUTNEJA MEMBER PRESENT: Sh.Sanjiv Gupta, Adv. for complainant Sh.Ashwani Talwar, Adv. for OP-1 Sh.K.K.Gupta, Advocate for OP-2. --- PER LAKSHMAN SHARMA, PRESIDENT Sh.Vinod Kathuria and Ms.Anuradha Kathuria have filed this complaint under section 12 of the Consumer Protection Act, 1986 praying for the following reliefs:- i) To refund a sum of Rs.10,97,875/- along with interest @ 24% from the date of its receipt till realization. ii) Pay a sum of Rs.7 lacs as compensation for mental agony and harassment. iii) Costs of litigation. 2. In brief, the admitted facts of the case are as under:- The complainants applied for residential flat by depositing Rs.9,81,000/- along with the application form on 21.09.2007 (Annexure C-3). They were allotted three bedroom flat No.2, Ist floor in Block No.C-18, in the project of OP No.1 i.e. Parsvnath Prideasia at Rajiv Gandhi Chandigarh Technology Park, Chandigarh vide allotment letter dated 28.09.2007 (Annexure C-6). The balance amount was to be paid as per construction linked payment plan. As per the agreement dated 06.10.2006 executed between OPs No.1 & 2, the construction of the flats was to be completed by OPs No.1 & 2 within 36 months from 6.10.2006. Thereafter, the complainants paid Rs.33,50,000/- on 30.11.2007 vide receipt (Annexure C-8). Subsequently, the flat of the complainants was upgraded to C18-PH3 having super area 3150 sq. ft on their request through letter dated 02.06.2008 (Annexure C-9) by the OP-1 vide its letter dated 09.06.2008 (Annexure C-10) on receipt of additional amount of Rs.5,77,375/- . It has been pleaded that OP No.1 failed to make any development at the site. So dissatisfied with the act & conduct of OPs, the complainants sought cancellation of allotment and refund of the deposited vide letter dated 16.09.2008 (Annexure C-11) for the first time and thereafter repeated reminders (Annexure C-13 to C-17) were made through letters and e-mails but to no effect. Ultimately, the complainants served the OPs with a legal notice dated 11.05.2009 (C-18) demanding refund of Rs.58,98,375/- along with interest @ 24. OPs instead of refunding the whole amount along with interest, illegally deducted a sum of Rs.10,97,875/- from the total amount deposited by the complainants and refunded a sum of Rs.47,91,500/-. Despite their repeated requests, the whole amount has not been refunded by OPs. According to the complainants, the deduction of Rs.10,97,875/- from the amount deposited i.e. Rs.58,98,375 by the complainants amounts to deficiency in service and unfair trade practice on the part of OPs. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. On the other hand, the case of OP-1 is that the Chandigarh Administration was desirous of developing residential, commercial and other related infrastructure facilities as an integrated project at Rajiv Gandhi Chandigarh Technological Park in Chandigarh. A land measuring approximately 123.79 acres with private sector participation was earmarked for this purpose. It invited bids/proposals from private parties for this activity. OP-1 had submitted its proposal with the Chandigarh Administration which was accepted vide their letter of acceptance (No.HB/EE-II/2006/2437) dated 09.06.2006. Thereafter an agreement was signed between OP-1 and OP-2 which is known as the “Developers Agreement”. The relevant terms and conditions of the said agreement are as under:- “2.2.1 The "Development Period" shall be a total period of 36 Months (including 24 Months of construction period) starting from the Agreement Date. The Development Period includes (a) the period of 12 Months starting from Agreement Date within which the developer shall obtain all requisite Approvals including environmental clearance/s for the Project and (b) construction period of 24 Months starting from the said 12 Months period set out at (a) above within which the Project are to be completed by the Developer. 2.2.2 Provided further that in the event of any delay attributable to the CHB in handing over possession of the CHB's Asset to the Developer, the said period of 36 Months shall commence from the date the CHB's Asset are actually handed over to the Developer. For the avoidance of doubts, the Developer shall be obliged to procure from CHB a letter recording the date on which such hand over of assets would have been, effectuated by CHB, which date shall be the "start" date for calculation of the said period) of 36 Months." The case of the OP-1 is that soon after taking possession of the land measuring 123.79 acres, OP-1 started erection of fencing around the said land. However, the Government of Haryana claimed ownership over a portion of the said land. OP-1 was thus stopped from carrying out its activities. Despite the fact that OP-1 had taken up the matter with Chandigarh Administration a number of times and a number of meetings were held between OPs No.1 and 2 and the State of Haryana; the matter regarding the ownership of the land allotted to OP-1 still remains unsettled. In these circumstances according to OP-1,the construction work could obviously not be started, and the possession of the flat could not be delivered to the complainants within the stipulated period of 12months. The said period of 36 months, according to OP-1, shall commence from the date of delivery of the possession of the total land to it by OP-2 as per agreement clause 2.2.2. In these circumstances, according to OP-1, the delay in construction of the flats and delivery of the possession is not because of the fault of OP-1. It has further been pleaded that the complainants were rightly refunded Rs.47,91,500/- after deducting 5% of basic price of the flat i.e. Rs.10,97,875/- as per the clause 5(a) of the Flat Buyers Agreement. In these circumstances, according to OP-1, there is no deficiency in service or unfair trade practice on its part and the complaint qua it deserves dismissal. 4. In the reply filed by OP No.2-C.H.B., it has been pleaded that Flat Buyer Agreement was signed between all the three parties i.e. complainants, CHB and Developer. As per clause 9(a) of the said agreement, OPs No.1 was required to complete the construction within 36 months of the signing of the agreement and under clause 9(e) of the said agreement. It is the Developer who was responsible for non-completion of the construction within the stipulated period. According to OP-2, as per Clause 5(a) of the Flat Buyer Agreement, in the event of the allottee’s seeking the refund of the deposited amount, the same was to be refunded to the allottee after deducting 5% of the basic price of the flat from the deposited amount and accordingly the amount refunded to the complainants was correct. In these circumstances, according to OP-2, there is no deficiency in service on its part and the complaint deserves to be dismissed. 6. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc and the written arguments filed by the parties. 7. Admittedly, the complainants deposited a sum of Rs.58,89,375/- with OPs No.1 towards the cost of the said flat and this fact has also been admitted by the OPs No.1 in para No.8 of their written statement. It is also admitted case of the parties that the OPs have failed to construct the flats so far. It has also been admitted that a sum of Rs.47,91,500/- was refunded to the complainants after deducting 5% of the basic price of the flat from the total deposited amount of Rs.58,89,375/-. 8. In the present case, the only question which needs determination is that whether OPs are justified in deducting a sum of Rs.10,97,875/- i.e. 5% of the basic price as per clause 5(a) of the Flat Buyer Agreement or not. 9. It has been argued by the learned counsel for the complainants that OPs have illegally deducted a sum of Rs.10,97,875/- and the complainants are entitled to the said amount. Admittedly, the complainants had deposited a total sum of Rs.15,85,750/- from time to time as per construction linked payment plan but the construction has not commenced so far. So the complainants moved an application for refund of the total amount as they could not wait for an unlimited period for delivery of possession of the flat. The said application was received by OPs No.1 on 16.09.2008 (Annexure C-11). On the basis of the said application, OPs refunded a sum of Rs. Rs.47,91,500/- after deducting Rs.10,97,875/- as per clause 5 of the Flat Buyers Agreement. 10. Clause 5 of the Flat Buyers Agreement reads as under:- “5(a) Timely payment of the installments/amounts due shall be of the essence of this agreement. If payment is not made within the period stipulated and/or the Buyer commits breach of any of the terms and conditions of this agreement, then this agreement shall be liable to be cancelled. In the eventuality or cancellation, earnest money being 5% of the basic price would be forfeited and the balance, if any, would be refundable without interest. However, the sellers may allow the revival of the allotment of the unit (subject to its availability) in the name of the buyer on payment of revival charges amounting to 10% of earnest money.” 11. To our mind, clause 5(a) of the Flat Buyers Agreement relied upon by OPs No.1 and 2 is not applicable in the present set of circumstances. As per this clause, timely payment is the essence of the agreement and if the payment is not made within the period stipulated and buyer commits breach of any of the terms and conditions of this agreement, the developer has a right to cancel the allotment and in that eventuality the developer has the right to forfeit 5% of the basic price. 12. In the present case, the complainants have not made any breach of the terms and conditions of the agreement. There is no default in payment of any installment. Rather the complainants have paid a sum of Rs.58,89,375/- before time. So, Clause 5(a) of the Flat Buyers Agreement is not applicable to the facts and circumstances of the present case. Therefore, OPs have no right to deduct 5% of the basic price i.e. Rs.10,97,875/- in the present set of circumstances. (Even the allotment has not been cancelled for any alleged breach of contract from the side of the complainants). Thus, the amount of Rs.10,97,875/- has been wrongly and illegally deducted. 13. To our mind, in the circumstances of the case in hand, the refund should have been made as per clause 9(d) of the Flat Buyers Agreement which reads as under: “9(d) If as a result of any rules or directions of the Government or if any competent authority delays, withholds, denies the grant of necessary approvals for the project, or if due to any force majeure conditions, the developer is unable to deliver the unit to the buyer, the developer and CHB shall be liable to refund to the buyer the amounts received from the buyer with interest at the SBI term deposit rate as applicable on the date of refund.” In the present case, OPs have failed to deliver the possession within the period prescribed in the Flat Buyers Agreement due to some dispute over a portion of land. So both M/s Parasvnath Developers Ltd. and Chandigarh Housing Board are liable to refund the amount to the complainants with interest at the current SBI term deposit rate as per the agreement. Failure on the part of OPs to refund the entire amount along with interest amounts to deficiency in service. 14. Faced with this situation, it was argued by the learned counsel for the OPs that as the project has not been abandoned. So, the developer has not become unable to deliver the unit to the buyer. Therefore, clause 9(d) is not applicable in the present case. To our mind, the argument advanced by the learned counsel for the OPs has no force. As per the flat buyer agreement, the OPs were required to deliver the possession within 36 months from 06.10.2006. Admittedly, the OPs have failed to do so . The complainants cannot be forced to wait for indefinite period for the possession of the flat. So even if the project is still continuing, the failure to deliver the possession within reasonable time amounts to inability in delivery of possession. 15. Thus, the complainants are entitled for the refund of the remaining amount of Rs.10,97,875/-. They are also entitled to receive interest at the current SBI term deposit rate on the total paid up amount i.e. Rs.58,89,375/- from the dates of respective deposits till the dates of its realization. In addition to this, the complainants are also entitled to a compensation of Rs.50,000/- for mental agony and harassment besides Rs.5000/- as costs of litigation. 16. In view of the above findings, this complaint is allowed with following directions to OPs to:- i) Refund the remaining amount of Rs.10,97,875/- to the complainants. ii) Pay interest on the total amount paid to OPs by the complainants from the respective dates of deposits till dates of its return at the current SBI maximum term deposit rate on the date of refund. iii) Pay Rs.50,000/- to the complainants as compensation for causing mental agony and harassment iv) Pay Rs.5,000/- to the complainants as costs of litigation. 17. This order be complied with by OPs jointly and severally within 45 days from the date of receipt of its certified copy, failing which OPs shall be liable to pay Rs.11,47,875/- along with interest on the total amount paid by the complainants from the respective dates of deposits till its realization @ 18% p.a. besides Rs.5000/- as costs of litigation. 18. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 06.08.2010 Sd/- (LAKSHMAN SHARMA) PRESIDENT cm sd/- (ASHOK RAJ BHANDARI) MEMBER Sd/- (MADHU MUTNEJA) MEMBER
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MRS. MADHU MUTNEJA, MEMBER | | 
