Complaint Case No. 169 of 2014. Case: Daljit Singh Saini and Ors. Vs Parsvnath Developers Limited and Ors.. Union Territory State Consumer Disputes Redressal Commission
| Case Number | Complaint Case No. 169 of 2014 |
| Counsel | For Appellant: Kapil Kumar, Advocate and For Respondents: Aftab Singh Khara, Advocate |
| Judges | Sham Sunder, J. (President), Dev Raj and Padma Pandey, Members |
| Issue | Consumer Protection Act, 1986 - Sections 17, 2(1)(o), 3 |
| Citation | I (2015) CPJ 87 (UT Chd.) |
| Judgement Date | January 19, 2015 |
| Court | Union Territory State Consumer Disputes Redressal Commission |
Order:
Sham Sunder, J. (President)
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The facts, in brief, are that the complainants applied for the allotment of a residential unit, consisting of 2 bedrooms, D Category, measuring 1700 square feet super area, in the project of Opposite Party Nos. 1 and 2, known as "Parsvnath Prideasia", Rajiv Gandhi Chandigarh Technology Park, Chandigarh, to be developed, and constructed by them, on the land of Opposite Party No. 3. An amount of Rs. 6,07,750 as earnest money, vide draft No. 185104 dated 24.12.2007, in respect of the said unit, was also paid by the complainants. The complainants opted for the construction linked payment plan. The total sale consideration of the said unit was to the tune of Rs. 1,21,55,000. It was stated that the complainants were allotted Flat No. 103, First Floor, Block No. D4, measuring 1,700 square feet, in Parsvnath Prideasia, Rajiv Gandhi Chandigarh Technology Park, Chandigarh, vide allotment letter bearing No. PDL/CHB/08/D3 dated 1/3.1.2008. By 13.2.2008, the complainants paid the total amount of Rs. 34,38,750, towards part price of the said unit, to the opposite parties. It was further stated that the Flat Buyer Agreement dated 23.4.2008, Annexure C-10, was executed amongst the parties, at Chandigarh. As per Clause 9(a) of the said Agreement (at page 28 of the file), the construction of the residential units and other related infrastructure, was likely to be completed, within a period of 36 months, from 6.10.2006, the date of signing the Development Agreement. It was further stated that after the stipulated date of handing over possession of the said unit, the complainants visited the site, where the flats were to be constructed, and came to know that the opposite parties failed to construct the same (flats).
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It was further stated that, however, the complainants visited the opposite parties, a number of times, and requested them to apprise them, with regard to delivery of possession of the said unit, but they failed to give any satisfactory reply. It was further stated that, left with no other alternative, the complainants got served legal notice dated 13.10.2014, upon the opposite parties, for redressal of their grievance.
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It was further stated that, on receipt of the legal notice, opposite party No. 3, refunded the amount of Rs. 10,31,625, towards 30% of his share of the principal amount, deposited by the complainants, and that too without any interest. It was further stated that legal notice dated 13.10.2014, sent to opposite party Nos. 1 and 2, by the complainants, for refund of the amount deposited by them, in respect of the unit, in question, remained unanswered. However, the balance amount of Rs. 24,07,125, had not been refunded to the complainants by opposite party Nos. 1 and 2.
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It was further stated that the aforesaid acts of the opposite parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, claiming refund of the amount of Rs. 24,07,125, along with interest @ 18% p.a., from the respective dates of deposits, till realization; interest @ 18% p.a., on the amount of Rs. 10,31,625, from the respective dates of deposits, till the same was refunded; compensation @ Rs. 107.60 per sq. mtr. (Rs. 10 per sq.ft.) of the super area of the unit, per month, as provided by Clause 9(c) of the Flat Buyer Agreement, for mental agony and physical harassment; and cost of litigation, to the tune of Rs. 33,000.
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Opposite party Nos. 1 and 2, in their joint written version, pleaded that the complaint was barred by time. It was further pleaded that the consumer complaint was not maintainable, and only a suit for specific performance, in the Civil Court, for the enforcement of the Agreement, could be instituted. It was further pleaded that even the instant complaint under the Act, was barred, on account of the reason that the remedy for settlement of dispute, by way of, arbitration, had already been availed of, by the opposite parties. It was further stated that the award dated 9.1.2015 had already been made by the Arbitrator. The factum that the complainants were allotted the unit, in question, with super area of 1700 square feet, in the aforesaid project, was admitted. It was also admitted that the Flat Buyer Agreement dated 23.4.2008, Annexure C-10, was executed amongst the complainants, and the opposite parties. It was also admitted that the complainants deposited a sum of Rs. 34,38,750, towards part price of the unit, in question. It was, however, stated that after execution of the Development Agreement dated 6.10.2006, unencumbered land, was not handed over to opposite party Nos. 1 and 2, by the Chandigarh Housing Board/opposite party No. 3. It was further stated that, as per Article 2.2.2 of the Development Agreement, period of 36 months, for the completion of project, could only be counted, from the date of delivery of possession of the entire unencumbered land, and not earlier to the same. It was further stated that, as per Article 4.2.1 of the Development Agreement dated 6.10.2006, executed between the Developer and the Chandigarh Housing Board, it was agreed to between them that 30% of the revenues received in the Escrow Account, were to be transferred to a designated bank of opposite party No. 3, and correspondingly the balance 70% was to be transferred to the account of the Developers. Consequently, the liability of the Developers and the Chandigarh Housing Board, in case of refund, was corresponding to the above agreed to arrangement of receipts also. It was further stated that the Hon'ble Supreme Court, vide its order dated 10.5.2013, passed in Special Leave Petition No. 17133-134 of 2013, in the case titled as Parsvnath Developers Ltd. & Another v. Harsohin Kaur & Another, stayed the operation of the judgment, insofar as the payment of compensation under Clause 9(c) of the Flat Buyers Agreement was concerned. It was further stated that the complainants did not deposit all the installments, and, as such, violated the provisions of Clause 5(a) of the Flat Buyer Agreement. It was further stated that still in the event of cancellation of allotment, Rs. 6,07,750, being 5% of the basic price was to be forfeited. It was further stated that after deducting the said amount of Rs. 6,07,750, from the deposited amount of Rs. 34,38,750, the remaining amount out of 70% share of the Developers came to be Rs. 19,81,700. It was further stated that, as such, the balance amount of Rs. 19,81,700 shall be refunded to the complainants, as per the provisions of Clause 5(a) of the Flat Buyer Agreement dated 23.4.2008, Annexure C-10. It was further stated that since the complainants never paid the entire sale consideration of the unit, in question, there was no question of payment of compensation, on account of non-construction, to them. It was further stated that the project was held up due to various encumbrances. It was denied that opposite party Nos. 1 and 2, were deficient, in rendering service, and indulged into unfair trade practice. The remaining averments, were denied, being wrong.
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Opposite party No. 3, in his written version, pleaded that the complaint was barred by time. It was admitted that the complainants were allotted the unit, in question...
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