Per Justice Sham Sunder , President This appeal is directed against the order dated 1.4.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint with costs of Rs.5000/- and directed the OPs 1 and 2 to refund the remaining amount of Rs.2,57,000/- to the complainant and pay interest @ 12% p.a on the entire amount, since the date of deposit till the date of its refund. 2. The complainant applied for one residential flat with OP Nos.1 & 2 for a total consideration of Rs.51,43,000/- and deposited a sum of Rs.2,57,000/- vide bank draft dated 1.9.2007. The balance amount was to be deposited in instalments, as per construction linked payment plan. The complainant became successful in the draw of lots, conducted by OP No.3, and was allotted one bedroom flat No.207, 2nd Floor, Block E-2, in the project of OP Nos.1 & 2 ‘Parsvnath Prideasia’ at Rajiv Gandhi Chandigarh Technology Park, Chandigarh. He again paid a sum of Rs.2,57,000/- to OP Nos.1 & 2. In total, the complainant paid a sum of Rs.5,14,000/-. It was further stated that a Flat Buyer Agreement dated 23.4.2008 was executed between the complainant and the OPs which constituted a valid contract. According to this agreement, the construction of the flat was to be completed within 36 months w.e.f. 6.10.2006, when the Development Agreement was executed between the OPs. It was stated that the complainant got loan sanctioned from ICICI Bank, in respect of the said flat, and an agreement dated 5.8.2008 was also executed amongst the complainant, OP Nos.1 & 3 and ICICI Bank Limited. It was further stated that the OPs, however, failed to make any development at the site, as was agreed to, vide the agreement, referred to above. Being dissatisfied with the act and conduct of the OPs, the complainant sought cancellation of allotment and refund of the amount of Rs.5,14,2000/- alongwith upto date interest. The complainant also got issued NOC from ICICI Bank. The complainant was surprised to receive a sum of Rs.2,57,000/- only, instead of Rs.5,14,000/- ,which was deposited by him. It was further stated that the OPs illegally deducted 50% of the amount, deposited by the complainant, and refunded the remaining amount, that too, after a lapse of 3 years. The OPs got the receipt signed from Radhey Sham, an employee of the complainant. It was further stated that the OPs were deficient, in rendering service. The complainant also suffered a lot of humiliation, mental and physical harassment and financial loss. A legal notice was issued to the OPs, calling upon them to refund the illegally deducted amount with interest, but to no avail. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act,1986(hereinafter to be called as the Act only) was filed by him. 3. OP No.1 & 2, in their written reply, admitted the factual matrix of the case. It was stated that the period of 36 months for the completion of project, committed with the complainant, in terms of the Flat Buyer Agreement, as per Article 2.2 of Development Agreement dated 6.10.2006, was to start from the date, when the possession of entire unencumbered project land was handed over to OP Nos.1 & 2, which stage had not yet arrived. It was further stated that after signing the Development Agreement on 6.10.2006, the Chandigarh Housing Board handed over 123.79 acres of land to the answering OPs claiming it to be unencumbered, but on erection of fencing around it, the Haryana Government claimed ownership over a part of it, due to which the OPs were stopped from carrying on its activities. It was further stated that the Chandigarh Housing Board informed the OPs on 9.2.2007, as well as on 12.4.2007, that the dispute had been resolved, with the Haryana Government, and handed over a revised demarcation plan of the land to the OPs, but they refused to deliver physical possession of the revised/changed area. It was further stated that the alternative and revised demarcated land which was offered to the OP, by the Chandigarh Housing Board, included the land belonging to the Forest Department. It was further stated that the dispute was pending with the Arbitrators, and the decision was still awaited. It was admitted that the amount, in question, was deposited by the complainant for the allotment of a flat. It was further stated that as per Clause 5(a) of the Flat Buyer Agreement, in case, the buyer wanted the refund of amount and cancellation of contract,5% of the basic price, was to be deducted and only the remaining amount was to be paid to him. It was further stated that it was, under these circumstances, that 5% amount of the basic price, was deducted, and the remaining amount was refunded to the complainant. It was further stated the amount was legally deducted. It was further stated that there was no deficiency, in service, on the part of OP NO.1 & 2. 4. OP NO.3, Chandigarh Housing Board, in its written statement admitted the factual matrix of the case.. It was stated that the Flat Buyer Agreement was signed amongst all the three parties i.e. complainant, Chandigarh Housing Board and the developer. It was further stated that as per clause 9 (a) of the said agreement, OP Nos.1 & 2 were required to complete the construction within 36 months of signing the development agreement dated 6.10.2006. It was further stated that it was the developer, which was responsible for non-completion of construction within the stipulated period. It was further stated that as per clause 5(a) of the Flat Buyer Agreement, in the event of allottee, seeking refund of the deposited amount, the same was to be refunded to him after deducting 5% of the basic price. It was further stated that accordingly OP Nos.1 & 2 after deducting 5% of the basic price, refunded the remaining amount. It was further stated that OP No.3, was not deficient, in rendering service, nor indulged into unfair trade practice. The remaining allegations, were denied, being wrong. 5. The parties led evidence, in support of their case. 6. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 7. Feeling aggrieved, the instant appeal was filed, by the appellants/OP No.1&2. 8. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 9. The Counsel for appellant, submitted that, the written statement on behalf of OP Nos.1 & 2 was filed alongwith evidence by way of affidavit of Sh.V.Mohan,Sr.Vice President (Legal) and Company Secretary of OP NO.1. It was further submitted that OP Nos.1&2, no doubt, submitted an affidavit of Sh.V.Mohan, in support of the written statement, but it was a short affidavit. It was further submitted that the Counsel who was engaged by the appellants, inadvertently took the short affidavit, which was filed alongwith the written reply, as evidence, on behalf of the appellants and without filing the detailed affidavit of Mr.V.Mohan, thought that the pleadings were complete. It was further submitted that, under the impression that the evidence had been produced, arguments in the complaint were addressed by the Counsel. It was further submitted that, on account of non- filing of the detailed affidavit of Sh.V.Mohan, on behalf of OP NOs.1 & 2, a great prejudice was caused to them. It was further submitted that the parties are not required to suffer for the fault or negligence of their Counsel. Accordingly, it was submitted that the appellants/OPs be allowed to submit the detailed affidavit of Sh.V.Mohan by way of evidence, so as to adjudicate the controversy completely and effectively. It was further submitted that the District Forum was wrong, in coming to the conclusion, that the appellant was not entitled to, forfeit 5% of the basic price of the flat, at the time of refund of the amount, deposited by the complainant. It was further submitted that 5% of the basic price of the flat was legally deducted by the appellant, in accordance with clause 5(a) of the Flat Buyer Agreement dated 23.4.2008. It was further submitted that time for the completion of construction within 36 months was to run from the date, when the possession of entire unencumbered land over which the project was to be developed, had been delivered to OP Nos.1 &2, but the same was never delivered. It was further submitted that the order of the District Forum, being illegal, is liable to be set aside. 10. The Counsel for respondent No.2 i.e. Chandigarh Housing Board submitted that it was not responsible for non-delivery of possession of the flat, in time, to the complainant, nor it was liable to pay/refund any amount or to pay any interest. It was further submitted that it was the responsibility of the developer to refund the amount. 11. The Counsel for the respondent/complainant submitted that the District Forum, after due appreciation of evidence, various clauses of the Flat Buyer Agreement, and the Development Agreement, as also law on the point, was right, in coming to the conclusion, that the deduction of 5% of the basic price, at the time of refund, was illegal on the part of the OPs. It was further submitted that, no ground, was made out, to grant further opportunity to OP NOs.1&2, to lead evidence, by way of filing a detailed affidavit of V.Mohan. It was further submitted that the order of the District Forum, being legal and valid, is liable to be upheld. 12. The first question, that arises for consideration, is, as to within which period the construction of the residential units was likely to be completed. There is, no dispute, about the factum, that the complainant applied for the allotment of a flat. He was allotted a flat. He deposited Rs.5,14,000 in two instalments, towards the price of flat, which was allotted to him, as admitted by the OPs. Clause 9(a) of the Flat Buyer Agreement , referred to above, which is relevant, for answering the question, posed at the outset of this paragraph, reads as under ; “Construction of the residential units is likely to be completed within a period of thirty six (36) months of the signing of the Development Agreement i.e. 06.10.2006 between the Developer and CHB and/or as may be extended in terms of the Development Agreement shall be subject to force majeure and circumstances beyond the control of the Developer, and any restrains, restrictions from any Courts/authorities. The delay in grant of environmental clearances beyond 12 months of the signing of the Development Agreement shall not be counted towards the said period of 36 months.” 13. The plain reading of Clause 9(a) of the Flat Buyer Agreement, extracted above, clearly goes to reveal, that the construction of the residential units, was to be completed, within a period of thirty six months of the signing of the Development Agreement dated 06.10.2006. The time could be extended, in terms of the Development Agreement dated 6.10.2006, subject to force majeure, and the circumstances beyond the control of the Developer. OP Nos.1 & 2 admitted in their written reply that, in the first instance, the possession of entire project land was handed over to them by OP No.3, and when the fencing was being done, the Haryana Govt. raised dispute with regard to the ownership of a portion of the land. It was also admitted by them that when that dispute was resolved, and in lieu of the disputed portion of the land, possession of some other land was given to them, the same was discovered to be that of the Forest Department. No evidence was, however, produced, by OP Nos.1&2 in this regard. Even if, it is assumed for the sake of arguments, that the ownership of a small portion of the land was disputed, that did not mean that the construction of residential units, could not be undertaken, on the remaining land, which constituted the major portion of the project land, and with regard whereto, there was no dispute whatsoever. Therefore, it was not on account of the circumstances, beyond the control of the developer, that delay was caused, in the construction of residential units . The developer also could not take shelter of force majeure clause. No document was produced by OP Nos.1 & 2 that any restriction was imposed by any Court or Authority upon them, as a result whereof they could not raise construction of residential units, in time. Even, it was not proved that there was delay in the grant of environmental clearance. OP Nos.1 & 2, without first confirming the clear title of the land, over which the project was to be developed, started booking the flats and allotting the same to the prospective buyers, by fleecing them of huge amounts and making misleading statement that the construction of residential units will be completed within 36 months w.e.f. 6.10.2006. Even long after the expiry of the stipulated period, not even a brick was laid, at the site, what to speak of raising construction. OP Nos.1 & 2, thus indulged into unfair trade practice. . It is, therefore, held that the construction of the residential units was to be completed within 36 months from 6.10.2006 i.e. by 5.10.2009. 14. Coming to the submission of the Counsel for OP Nos.1 & 2, that since there was breach of Clause5(a) of the Flat Buyer Agreement, by the complainant, he was only entitled to the refund of the remaining amount deposited by him, after deduction of 5% of the basic price of the flat, it may be stated here, that such an argument advanced by the Counsel for OP Nos.1 & 2, is misconceived. Clause 5(a) of the aforesaid Agreement dated 23.4.2008, reads as under ; “5(a)Timely payment of the instalments/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 of 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.” 15. The plain reading of Clause 5(a) extracted above, clearly goes to show that admittedly the payment of instalments/amounts due, shall be the essence of the Agreement and if the payment was not made, within the stipulated period, or the buyer committed breach of any of the terms and conditions of the Agreement, the Agreement shall be liable to be cancelled and the amount would be refunded, after deduction of 5% of the basic price. The question arises, as to whether, there was default, in making the payment of instalments, or violation of any other term and condition of the Agreement aforesaid, on the part of the complainant, or not ? It was proved, as also admitted by the OPs, that the payment of two instalments was made by the complainant, as and when the same fell due. There was no delay, in making payment of two instalments towards the price of the flat, on the part of the complainant. Since, after the payment of the aforesaid amount and expiry of the period of 36 months from 6.10.2006, not even a single brick had been laid, the complainant was left with no alternative than to ask for the refund of the amount. There was also no breach of any other term and condition of the Agreement, referred to above, on the part of the complainant. As such, the provisions of Clause 5(a), extracted above, relating to the deduction of 5% amount of the basic price, could not be invoked. The complainant was, thus, entitled to the refund of the entire amount, deposited by him, with interest. The District Forum was right in coming to the conclusion that by not refunding the full amount, the OPs were deficient, in rendering service. The submission of the Counsel for the OPs ,in this regard, being without merit, must fail, and the same stands rejected. 16. Sub clause (b) of clause 5 of the Flat Buyer Agreement, referred to above, provided that in case of delay in payment, the buyer was liable to pay interest @ 24% per annum on the amount due for the period of default. In case, the OPs were entitled to charge interest @ 24% per annum on the delayed payments, on the same parity, they were also required to pay interest at this rate to the complainant, refund of whose amount was delayed. In the instant case, the complainant had taken loan from the ICICI Bank for paying the amount and, as such, was liable to pay interest thereon. The District Forum, however, taking into consideration the facts and circumstances of the case and the prevailing rate of interest on fixed deposits was, thus, right in coming to the conclusion that interest @ 12% p.a., if granted, shall be fair, reasonable and just. The findings of the District Forum, in this regard, being correct, are affirmed. 17. When the written statement was filed by OP Nos.1 & 2, an affidavit of one V.Mohan, by way of evidence was also filed. After the evidence of the parties was complete, a number of opportunities were granted for arguments. If the Counsel for OP Nos.1 & 2 did not go through the file properly , and never asked for producing the detailed affidavit of V.Mohan, by way of evidence, in the District Forum, then he cannot blame anybody for this lapse. The complaint was filed on 10.11.2009 and was decided on 1.4.2010. On account of his own inaction, the counsel for OP Nos.1&2, cannot be granted any indulgence. No ground, whatsoever, is, therefore, made out for the grant of an opportunity to the appellants/OP Nos.1&2 to file the detailed affidavit of V.Mohan, by way of evidence. The submission of the counsel for the appellants, in this regard, being devoid of merit is rejected. 18. The order rendered by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission . 19. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs, quantified at Rs.3000/- . 20. Certified Copies of this order be sent to the parties, free of charge. 21. The file be consigned to record room.
| HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |