Chandigarh

StateCommission

CC/192/2015

Shri Jaskaran Singh - Complainant(s)

Versus

Parsvnath Developers Ltd & anr. - Opp.Party(s)

NP Sharma & Gaurav Bhardwaj

05 Nov 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	192 of 2015
Date of Institution	:	28.08.2015
Date of Decision	:	05.11.2015

 

Shri Jaskaran Singh, aged about 35 years, son of Shri Harvinder Singh, permanent resident of House No.3056, Sector 20-D, Chandigarh and presently residing at 8457, 137^th PL NE, Redmond, WA 98052, United States of America: through his authorized Agent/Father Shri Harvinder Singh aged about 66 years son of Sh.Harbans Singh, resident of House No.3056, Sector 20-D, Chandigarh-160020

 

……Complainant

V e r s u s

1. Parsvnath Developers Limited,  through its Managing Director, Regional Office: Parsvnath Royale, Behind Society No.105, Sector 20, Panchkula, Haryana.
2. Chandigarh Housing Board, through its Chairman, No.8, Jan Marg, Sector 9, Chandigarh,

             

 .... Opposite Parties

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:          JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                        MR. DEV RAJ, MEMBER

                        MRS. PADMA PANDEY, MEMBER

 

Argued by:        Sh. Neeraj Pal Sharma, Advocate for the complainant.

                        Sh. Kush Makkar, Advocate Proxy for Sh.Aftab Singh                      Khara, Advocate Proxy for Opposite Party No.1.

                        Sh.Vishal Sodi, Advocate for Opposite Party No.2.

 

JUSTICE JASBIR SINGH (RETD.), PRESIDENT

           

            The complainant through his father (authorized agent) has filed this complaint, under Section 17 [(1)] (a) read with Section 18 of the Consumer Protection Act, 1986 (in short the Act), against the Opposite Parties, claiming relief, for providing deficient service.

            As per admitted facts on record, the complainant moved an application for allotment of a built-up unit, measuring 1700 square feet area, in a project launched by the Opposite Parties, named as “Parsvnath Prideasia”, which was situated in Rajiv  Gandhi  Chandigarh Technology  Park, Chandigarh. Total cost of the said unit was fixed at Rs.1,21,55,000/-. Alongwith the said application, the complainant deposited an amount of Rs.6,07,750/- through a cheque, on 26.12.2007. For payment towards the said unit, the complainant opted for construction linked plan. Flat Buyer’s Agreement (Annexure C-3) was signed between the parties, on 26.03.2008. Before signing the above Agreement, the complainant had already paid an amount of Rs.34,38,750/-, with the Opposite Parties, towards part price of the unit, in question.

            Project failed to take off. The complainant sought refund of the money paid by him. Opposite Party No.2, refunded an amount of Rs.10,31,625/- on 15.11.2011 towards its share, to the extent of 30%. In the same manner, Opposite Party No.2 refunded an amount of Rs.24,07,125/- on 20.02.2015, towards its share, to the extent of 70%. It is grievance of the complainant that the Opposite Parties had used his money, for sufficient long period, however, when refund was made, the amount of interest was not paid by them, as was stipulated in Clause 9 (d) of the Agreement. It was further claimed that the complainant was also entitled to get compensation for delay caused, in terms of Clause 9 (c) of the Agreement, but the said amount was also not paid by the Opposite Parties. It was further stated that lot of mental fatigue and physical harassment has been caused to the complainant, by the Opposite Parties, with their unreasonable attitude. By stating as above, following reliefs were claimed by the complainant, against the Opposite Parties:-

1. Allow the present consumer complaint and direct the Opposite Party No.1 to pay interest @9.50% per annum (Simple) to the Complainant on the sums of (aa) Rs.4,25,425/- (Being 70% of the 1^st Payment) w.e.f. 26/12/2007-20/02/2015; (ab) Rs.4,25,425/- (Being 70% of the 2^nd Payment) w.e.f. 14/01/2008 -20/02/2015; (ac) Rs.15,14,800/- (Being 70% of the 3^rd Payment) w.e.f. 15/02/2008-20/02/2015 and (ad) Rs.41,475/- (Being 70% of the 4^th Payment) w.e.f. 15/02/2008 -20/02/2015 being a total sum of Rs.16,13,059/-.
2. Allow the present consumer complaint and direct the Opposite Party No.2 to pay interest @9.50% per annum (Simple) to the Complainant on the sums of (ba) Rs.1,82,325/- (Being 30% of the 1^st Payment) w.e.f. 26/12/2007 -15/11/2011; (ab) Rs.1,82,325/- (Being 30% of the 2^nd  Payment) w.e.f. 14/01/2008 -15/11/2011; (bc) Rs.6,49,200/- (Being 30% of the 3^rd Payment) w.e.f. 15/02/2008 -15/11/2011 and (bd) Rs.17,775/- (Being 30% of the 4^th Payment) w.e.f 15/02/2008 -15/11/2011 being a total sum of Rs.3,71,252/-.
3. Allow the present consumer complaint and direct the Opposite Party No.1 to pay to the Complainant a Monthly Compensation @ Rs.17,000/- per month for the period commencing on 05/10/2009 till 05/09/2015 (71 Months) quantified at Rs.12,07,000/- and thereon till actual realization of the same;
4. Allow the present consumer complaint and direct the Opposite Party No.1 to pay to the Complainant Interest on the Amount Per Clause (c) as above @ 18% per annum, w.e.f. each date of accrual of the monthly compensation; till its actual realization by the complainant;
5. Allow the present consumer complaint and direct the Opposite Parties to pay a lump-sum compensation of Rs.2,00,000/- to the complainant for causing avoidable mental agony and physical harassment;
6. Grant Costs of this Litigation assessed at Rs.55,000/-

2.       At the time of arguments, it transpires that as a matter of fact, in the above-said project, large number of people/buyers/consumers had invested by depositing money, to purchase built-up units. Project failed to take off. Dispute also arose interse between the Opposite Parties. Facing with above said situation, large number of buyers/ consumers came to this Commission, as also the District Forums, and filed consumer complaints, claiming refund of amount deposited by them, alongwith compensation and litigation charges. Large number of complaints were disposed off. The main judgment was passed by this Commission, in consumer complaint bearing No.82 of 2014, titled as Jyoti Sood @ Jyotish Lata Sood and another Vs. Parsvnath Developers Limited and another, decided on 12.09.2014.

            This Commission in the said complaint, ordered the Opposite Parties to refund amount deposited by the buyers, with interest @SBI Term deposit, from the respective dates of deposits. It was further ordered that Opposite Party No.1 i.e. the Developer shall be liable to pay compensation @ Rs.107.60 per square meter of the super area of the unit, per month whereof 06.10.2009, till actual payment is not made to the complainants, in that case. It was further held that if the amount awarded is not paid within the stipulated period, the entire amount shall carry interest @12% P.A. Rs.5,000/- was awarded towards litigation charges. At the time of arguments, it was also brought to the notice of this Commission, that in some cases, upon the amount deposited, interest was granted ranging between 9% P.A. to 12% P.A.

3.       The Opposite Parties went in Revision, before the National Consumer Disputes Redressal Commission, New Delhi (in short the National Commission). In Revision Petition Nos.396 and 1358 of 2011 filed by Opposite Parties No.1 and 2 respectively, order passed by this Commission was upheld, with a modification, qua rate of interest. It was said that let the amount be refunded to the buyers/consumers, with interest @ 9% P.A., from the respective dates of deposits. It was further ordered that the said amount be paid, in the ratio of 70:30 respectively, by Opposite Parties No.1 and 2. Qua the payment of compensation, in terms of Clause 9 (c) of the Agreement, it was ordered that the said amount @ Rs.107.60 per square meter of the super area of the unit, per month, be paid by Opposite Party No.1 i.e. the Developer.

            Thereafter, Opposite Party No.1, went to the Hon'ble Supreme Court of India. Special Leave to Appeal (C) Nos.17133-17134/2013 were dismissed on 21.04.2015. The matter was again taken up before the National Commission in First Appeal No.130 of 2014 titled as Parsvnath Developers Limited Vs. Avtar Singh Hundal and 3 Ors. (alongwith 06 connected cases). That appeals were also disposed of, by the National Commission, vide common order dated 08.05.2015. Relevant portion of the said order reads thus:-

“Learned counsel appearing for the Appellant/ Developer has placed before us a copy of the order, dated 21.4.2015, passed by the Hon’ble Supreme Court dismissing a bunch of Special Leave Petition (C) No.17133-17134/2013 preferred by the Developer against the order, dated 5.3.2013, passed by this Commission in Revision Petition No.396/2011 and connected Revision Petitions.

In view of the said order, learned counsel submits that the Appellant/Developer would not like to pursue these Appeals and the same may be disposed of in terms of the said decision of the Hon’ble Supreme Court.  Learned counsel, however, prays for clarification on certain findings of the Learned Arbitrator in the award made in Arbitration proceedings between the Chandigarh Housing Board and the Appellant.  We are of the view that having regard to the nature of the controversy, subject matter of these Appeals, it would not be proper for this Commission to make any observation on the applicability of the said award, particularly in light of the view already expressed by the Hon’ble Supreme Court in the said order on this aspect of the matter.

Accordingly, as prayed, the Appeals are dismissed as not pressed.

We direct that the balance amount due to be paid by the Appellant to the Complainants under Clause 9(c) of the Flat Buyers’ Agreement shall be paid within 6 weeks from the date of receipt of a copy of this order.

We clarify that if any other amount(s), as awarded by the State Commission, still remains to be paid by the Appellant to the Complainants, subject to reconciliation of the accounts between the parties, the same shall also be paid within the same period.

However, the statutory amount deposited by the Appellant in each of the Appeals shall stand transferred to the Consumer Welfare Fund.”

4.       It was made clear that compensation as per Clause 9 (c) of the Agreement, is payable by Opposite Party No.1 i.e. the Developer. Matter again came to this Commission, in Jyoti Sood @ Jyotish Lata Sood and another Vs. Parsvnath Developers Limited and another, Execution Application No.53 of 2015 (alongwith 04 connected cases), qua payment of compensation, under above said Clause of the Agreement, in a Bunch of Execution Applications, which were disposed off, on 14.10.2015. By noting findings given by the National Commission and also the Hon'ble Supreme Court of India, referred to in earlier part of this order, it was ordered by this Commission, that liability to pay compensation, in terms of Clause 9 (c) of the Agreement, rests upon Opposite Party No.1 i.e. the Developer.
5.       At the time of arguments, Counsel for Opposite Party No.1 and 2 have made an attempt to defeat right of the complainant, on technical grounds. They have failed to rebut that qua the same project, orders to make refund to the complainant/buyers have only been passed and those orders have become final, upto the Supreme Court of India. Counsel for the Opposite Parties have failed to show, as to why, the judgments referred to in earlier part of this order, are not applicable to the present case.

            It is an admitted fact that Opposite Party No.2, refunded an amount of Rs.10,31,625/- on 15.11.2011 towards its share, to the extent of 30%, and in the same manner, Opposite Party No.2 refunded an amount of Rs.24,07,125/- on 20.02.2015, towards its share, to the extent of 70%. However interest and compensation amount, referred to above, was not paid. To claim above mentioned benefits, the complainant has a continuous cause of action, as his money was kept for a period between 4 to 8 years and now at this stage, it is not open to the Opposite Parties to say that interest and compensation be not awarded to him. The attitude adopted by the Opposite Parties deserves to be deprecated.

6.       In view of the above facts, this complaint is  partly  accepted,  with costs, as under:-
   1. Opposite Parties No.1 and 2 shall pay, simple interest @ 9% P.A., on the respective amounts aforesaid, retained with them, in the proportionate of 70:30, as per prayer made by the complainant, in Clauses (a) and (b) of the complaint. Interest will be calculated from the respective dates of deposit.
   2. Opposite Party No.1 shall pay compensation @ Rs.107.60 per sq. mtr (Rs.10/- per sq.ft) of the super area of the unit, per month, from the last date of completion of the project, till actual payment to the complainant is made, in terms of Clause 9 (c) of the Agreement, in view of the findings given by the National Commission.
   3. Opposite Parties No.1 and 2 shall jointly and severally pay compensation for causing mental agony and physical harassment, to the tune of Rs.1 lac, and cost of litigation to the tune of Rs.30,000/-, to the complainant.
   4. The Opposite Parties are directed to pay the aforesaid ordered amounts, to the complainant,  within a period of two months, from the date of  receipt of  a certified copy of this  order, failing which, they shall be liable  to pay penal interest @ 12% P.A, on the aforesaid payable amounts, from the date of default, till realization.
7.       However, it is made clear that if in terms of Arbitration Agreement, any benefit had accrued to Opposite Party No.1 against Opposite Party No.2, it will be open to Opposite Party No.1 to claim it, as per Law. However the said observation will not be a ground, not to make payment to the complainant, of the amount, as directed above.
8.       Certified Copies of this order be sent to the parties, free of charge.
9.       The file be consigned to Record Room, after completion

Pronounced.

05.11.2015                                                                                                  

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

 (PADMA PANDEY)

        MEMBER

Rg.