State Consumer Disputes Redressal Commission
Naresh Kumar Batra vs Parsvnath Developers Limited on 1 June, 2011
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Complaint Case No. 69 of 2010 Date of institution: 14.10.2010 Date of decision : 1.6.2011 Naresh Kumar Batra, aged 61 years S/o Late Shri R.P.Batra, permanent resident of House No.3067, Sector-21-D, Chandigarh, at present residing 19353, Pinnacle Court, Saratoga, California, USA-95070 through Umesh Batra being authorized representative. Complainant Versus 1. Parsvnath Developers Limited, through its Director, SCO NO.1, First Floor, Madhya Marg, Sector-26, Chandigarh-160026. 2. The Director, Parsvnath Developers Limited, Registered and Corporate Office,6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001. 3. The Chairman, Chandigarh Housing Board, 8, Jan Marg, Sector-9, Chandigarh-160009. Opposite Parties. Complaint U/s 17 of Consumer Protection Act,1986. Present: Sh.Kapil Kumar Bhardwaj,Advocate, for the complainant. Sh.Ashwani Talwar, Advocate, for OP Nos.1&2. Sh.Jagdish Marwaha,advocate for OP No.3. (Complaint No.73 of 2010 ) (Date of institution: 8.11.2010) 1.Tejpal Singh Dhillon son of Shri Harnand Singh Dhillon 2. Parminder Kaur Dhillon wife of Tejpal Singh Dhillon (Both presently residing at 7501, S.Tanglewild Drive, Raleight NC, USA 27613) Complainants Versus 1. Parsvnath Developers Limited, through its Director, SCO NO.1, First Floor, Madhya Marg, Sector-26, Chandigarh-160026. 2. The Director, Parsvnath Developers Limited, Registered and Corporate Office,6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001. 3. The Chairman, Chandigarh Housing Board, 8, Jan Marg, Sector-9, Chandigarh-160009. Opposite Parties. Complaint U/s 17 of Consumer Protection Act,1986. Present: Sh.Kapil Kumar Bhardwaj,Advocate, for the complainants. Sh.Ashwani Talwar, Advocate, for OP Nos.1&2. Sh.Jagdish Marwaha,advocate for OP No.3. (Complaint No.74 of 2010 ) (Date of institution: 8.11.2010) Ranjit Singh Shonpal S/o Late Shri Mehma Singh Shonpal, resident of 38 West Hill, Sanderstead, Surey, London, U.K- CR20SA. Complainant Versus 1. Parsvnath Developers Limited, through its Director, SCO NO.1, First Floor, Madhya Marg, Sector-26, Chandigarh-160026. 2. The Director, Parsvnath Developers Limited, Registered and Corporate Office,6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001. 3. The Chairman, Chandigarh Housing Board, 8, Jan Marg, Sector-9, Chandigarh-160009. Opposite Parties. Complaint U/s 17 of Consumer Protection Act,1986. Present: Sh.Kapil Kumar Bhardwaj,Advocate, for the complainant. Sh.Ashwani Talwar, Advocate, for OP Nos.1&2. Sh.Jagdish Marwaha,advocate for OP No.3. (Complaint No.76 of 2010 ) (Date of institution: 19.11.2010) M/s Isat Network Engineers Pvt. Ltd., D-24 & 25, Industrial Area-II, Haridwar-294-1, through its Director Sh.Sudhanshoo Aggarwal. Complainant Versus 1. Parsvnath Developers Limited, through its Director, SCO NO.1, First Floor, Madhya Marg, Sector-26, Chandigarh through its Branch Manager. 2. Chandigarh Housing Board, 8, Jan Marg, Sector-9, Chandigarh-through its Administrative Officer. 3. The Director, Parsvnath Developers Limited, Registered and Corporate Office,6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001. Opposite Parties. Complaint U/s 17 of Consumer Protection Act,1986. Present: Sh.Varun Chawla,Advocate, for the complainant. Sh.Ashwani Talwar, Advocate, for OP Nos.1&3. Sh.Jagdish Marwaha,advocate for OP No.2. (Complaint No.77 of 2010 ) (Date of institution: 26.11.2010) Ranjit Singh Amrit, S/o Shri Harbans Singh Amrit, E380, 2nd Floor, Greater Kailash II, New Delhi-110048 being represented by Sh.S.S.Gupta R/o H.No.143, Sector 8-A, Chandigarh being power of attorney holder. Complainant Versus 1. Parsvnath Developers Limited, through its Director, SCO NO.1, First Floor, Madhya Marg, Sector-26, Chandigarh through its Managing Direcotr/Principal Officer . 2nd address: M/s Parsvnath Developers Limited, 6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001. 2. Chandigarh Housing Board, 8, Jan Marg, Sector-9, Chandigarh-through its Principal Officer,/Estate Officer. Opposite Parties. Complaint U/s 17 of Consumer Protection Act,1986. Present: Sh.Vikas Gupta, Advocate, proxy for Sh.Atul Sharma, advocate for the complainant. Sh.Ashwani Talwar, Advocate, for OP Nos.1. Sh.Jagdish Marwaha, advocate for OP No.2. (Complaint No.78 of 2010 ) (Date of institution: 10.12.2010) 1. Harbans Kaur Brar wife of Shri Darshan Singh Brar, 2. Jaswinder Kaur Gill daughter of Mr.Darshan Singh Brar (Both residents of H.No.279, Sector-10, Chandigarh.) Complainants Versus 1. Parsvnath Developers Limited, Registered Office at 6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi-110001. 2. The Manager, Parsvnath Developers Limited, SCO NO.1, First Floor, Madhya Marg, Sector-26, Chandigarh- 3. The Chandigarh Housing Board, Sector-9, Chandigarh through its Chairman/Secretary. Opposite Parties. Complaint U/s 17 of Consumer Protection Act,1986. Present: Sh.Som Dutt Sharma ,Advocate, for the complainants. Sh.Ashwani Talwar, Advocate, for OP Nos.1&2. Sh.Jagdish Marwaha, advocate for OP No.3. CORAM; Justice Sham Sunder, President Mrs.Neena Sandhu, Member
Per Justice Sham Sunder , President This order, shall dispose of six aforesaid connected Consumer Complaints, in which the common questions of law, and fact are involved.
2. The facts are extracted, from Consumer Complaint No.69 of 2010, titled as Naresh Kumar Batra Vs Parsvnath Developers Ltd. and others, which proceed, in the manner, that the complainant applied for a residential flat, in the project of the OPs, to have his own flat, in the City Beautiful, Chandigarh. The total basic price of the flat was Rs.1,96,33,750/-. The complainant deposited a sum of Rs.10.00 lacs, as earnest money, alongwith application form vide cheque No.006586 dated 21.9.2007, drawn on UTI Bank Ltd. The balance price of the flat, was to be deposited in instalments, as per the construction linked payment plan. The draw of lots was held by OP No.3. The complainant was allotted a 3 Bedroom flat, on the Ground Floor, Type-1, category-C, bearing No.G03, in Block NO.C5 having approximate area of 2825 Sq. Ft.(equivalent to 262.442 Sq. mtrs.) in the project of Parsvnath Prideasia, Rajiv Gandhi Chandigarh Technology Park, Chandigarh, vide allotment letter No.PDL/CHB/07/C31 dated 10.10.2007. The complainant again paid a sum of Rs.9,63,375/- vide Cheque No.371964 dated 11.12.2007, drawn on UTI Bank Ltd. to the OPs to complete 10% cost of the total basic price. Thereafter, again he paid a sum of Rs.32,45,062.50, vide Cheque No.371966 dated 05.01.2008, drawn on UTI Bank Ltd. i.e. Rs.29,45,062.50 towards 15% cost of the total basic price, and Rs.3,00,000/- for the covered car parking charges. These payments, were duly acknowledged, by the OPs, vide receipt No.CH000449 dated 12.12.2007 and Receipt No.CH000512 dated 09.01.2008 respectively. In this manner, the total amount towards the price of the flat which was paid by the complainant came to be Rs.52,08,437.50paise.
3. The complainant came to know, from the Allotment Letter and Flat Buyer Agreement dated 15.02.2008, executed between him and the authorized representatives of the OPs, that as per Clause 9(a) of the same (Agreement), the construction of the flats, was to be completed by OP Nos.1 & 2, within 36 months, from 06.10.2006. Thereafter, the complainant came to know that OP Nos. 1 & 2, had not even laid foundation of the flat at the site. There was no development, at the site, as agreed to by OP Nos.1 & 2, in the Flat Buyer Agreement dated 15.02.2008. It was further stated that OP Nos.1 & 2, violated the provisions of Clause 9(a) of the Flat Buyer Agreement dated 15.02.2008. It was further stated that the OPs took money towards the price of the flats from various customers, as well as from the complainant, and did not start the construction work. The complainant, being not satisfied, with the project of the OPs, as already a long delay had occurred, and the construction had not been started by them, was not in a position to wait for an indefinite period, for the construction of the said flat. A legal notice dated 27.09.2010, after waiting for a sufficiently long time, for the possession of the flat, was issued to the OPs, for refund of the entire amount, referred to above, as he was no more interested in the project. It was further stated that the OPs intentionally, deliberately and with mala-fide intention did not construct the flat and used his hard earned money, which was deposited by him, as referred to above, by way of instalments, and earned interest thereon. It was further stated these acts of the OPs, amounted to deficiency, in rendering service. It was further stated that on account of these acts of the OPs, a great mental torture and harassment was caused to the complainant. It was further stated that despite receipt of the legal notice, neither the amount was refunded by the OPs, to the complainant, nor the compensation was paid.
When the grievance of the complainant, 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 the refund of Rs. 52,08,437.50 deposited by him, with interest @ 18% p.a. from the date of receipt of the amount of respective instalments till realization; a sum of Rs.10.00 lakh as compensation for causing mental torture, harassment, agony and pain and Rs.33,000/- as litigation expenses.
4. OP Nos.1 & 2, in their joint written reply, admitted that a Flat Buyer Agreement between the complainant and the OPs was executed which constituted a binding contract dated 15.2.2008. It was also admitted that a sum of Rs.52,08,437.50 by way of instalments, towards the part price of the flat, in question, was deposited by the complainant, from time to time. It was further stated that as per the Development Agreement dated 6.10.2006 Annexure R-1/1, which was originally executed between OP Nos.1&2 and OP No.3, development of the project was handed over to OP Nos.1 & 2.
It was further stated that the development period, according to Clause 2.2.1 of the Development Agreement dated 6.10.2006 Annexure R-1/1 was 36 months (including 24 months of construction period) starting from the date of agreement. It was further stated that this Clause provided that the development period included (a)the period of 12 months, starting from the date of agreement within which the developer shall obtain all the requisite approvals, including environmental clearances, 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 was to be completed by the developer. It was further stated that the timely payment of the instalments/amounts due to the OPs, against the complainant, was the essence of the Agreement dated 15.2.2008, referred to above. It was further stated that there was breach of Clause 5(a) of the Flat buyer Agreement executed between the complainant and the OPs, as the remaining amount towards the price of the flat was not deposited. It was further stated that the project could not take off, as the entire land, as mentioned in the Agreement dated 6.10.2006 R1/1, was not handed over to OP Nos.1 &2, by OP No.3. It was further stated that a dispute arose between the OPs, as a result whereof, the matter was referred to the Arbitrators and their decision was still awaited. It was further stated that, in case, the complainant wanted the refund of the amount, he had to apply for cancellation of the flat, and thereafter, the matter could be dealt with according to Clause 5(a) of the Flat Buyer Agreement, and 5% of the basic price was to be forfeited, and the balance amount was to be returned, without any other charges. It was further stated that the project was still on, and OP Nos.1 & 2, had not abandoned the same. It was further stated that, since unencumbered possession of the entire land earmarked for the project, had not been handed over to OP Nos.1 & 2, by OP No.3, there was no deficiency, in rendering service, on the part of OP Nos.1 & 2, nor they indulged into unfair trade practice. The remaining allegations, were denied, being wrong.
5. OP No.3, in its written statement, admitted the execution of the Development Agreement dated 6.10.2006 R-1/1 between it, and OP Nos.1 & 2. The execution of Flat Buyer Agreement dated 15.2.2008,between the complainant and the OPs was also admitted. It was also admitted that the basic price of the flat, which was allotted to the complainant, was Rs.1,96,33,750/-. It was also admitted that a sum of Rs.52,08,437.50 was deposited by the complainant through OP Nos.1 & 2. It was further stated that a big chunk of land, for the project, was handed over to OP Nos.1 & 2, where the residential complex was to come up. It was denied that no development took place, on account of not handing over the land, for the development project to OP Nos.1 & 2. It was denied that no development at the site had started. It was further stated that, as per the terms and conditions of the Agreement dated 15.2.2008,it was the entire responsibility of OP Nos.1 & 2, to refund the deposited amount, by the complainant. It was further stated that the Chandigarh Housing Board was willing to refund 30% of the principal sum, deposited by the complainant, in the Escrow account. It was admitted that on account of dispute, the matter was referred to the arbitrators and their decision was still pending. It was further stated that, as per the Escrow Agreement between OP Nos.1 & 2 and OP No.3, the liability of Chandigarh Housing Board was to the extent of 30% only, whereas the liability of the developer was 70%. It was further stated that there was no deficiency, in rendering service, on the part of OP NO.3.
6. The complainant, in support of his case, filed an affidavit of Sh.Umesh Batra his attorney, by way of evidence, who proved allotment letter C-2 dated 10.10.2007, C-3 payment plan for apartments, C-4 receipt acknowledging the amount of Rs.10.00 lacs dated 21.9.2007, C-5 letter dated 12.12.2007 acknowledging the receipt of Rs.9,63,375/- vide receipt C-6 against the booking of the flat, aforesaid, by the authorized signatory of OP Nos.1 & 2, C-7 receipt acknowledging the receipt of Rs.32,45,062/-, C8 copy of the Flat Buyer Agreement dated 15.2.2008, executed between the complainant and the OPs, C9 copy of the legal notice dated 27.9.2010 and C10 to C13 copies of the UPCs C-10 to C-13.
7. OP Nos.1 & 2, in support of their case, submitted the affidavit of Sh.V.Mohan, Senior Vice President (Legal) of OP No.1 who proved R-1/1 the Development Agreement dated 6.10.2006, executed between OP Nos.1 & 2 and OP NO.3, Annexure R-1/2 the Escrow Agreement executed amongst the Chandigarh Housing Board, M/s Parsvath Developers Limited and State Bank of India, R-1/3 a letter written by OP Nos.1 & 2 to the Chief Executive Officer of Chandigarh Housing Board.
8. OP No.3, in support of its case, submitted the affidavit of Sh.M.M. Sabharwal, Secretary, Chandigarh Housing Board, by way of evidence who proved OP-2/1 copy of the document,relating to land handing over/taking over, OP-2/2 the Escrow Agreement, and OP2/3 copy of the application filed by OP NO.2 U/s 17 of the Arbitration and Conciliation Act,1996, before the Arbitration tribunal.
9. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
10. The Counsel for the complainant, submitted that, though the complainant, being allured by the advertisements of OP Nos.1 & 2, applied for a flat, with a view to fulfill his dream, to have the same, in the city beautiful, Chandigarh. He further submitted that as per Agreement C-2 dated 15.2.2008, the construction of the residential units was likely to be completed within 36 months of the signing of the Development Agreement R-1/1 dated 6.10.2006, between the developer and the Chandigarh Housing Board. He further submitted that though a sum of Rs.52,08,437.50p was deposited by the complainant, on the basis of construction linked plan, by way of instalments, with the OPs, yet not even a brick was laid at the spot, what to speak of construction of the flats.
He further submitted that there was no breach of Clause5(a) of the Agreement dated 15.2.2008 relating to the payment of instalments, yet the complainant was deprived of the possession of flat, as the same was not constructed, as also of his hard earned money. He further submitted that the complainant, therefore, could not wait for an indefinite period, and was entitled to the refund of the amount deposited by him with interest, as also compensation for physical harassment, mental agony and torture. He further submitted that OP Nos.1&2 could not, deduct 5% of the basic price, from the amount deposited by the complainant, in the event of refund of the same as there was no default in making payment of any instalment, in time, by him. He further submitted that the complainant was also entitled to compensation, as per the terms and conditions of the said agreement. He further submitted that the OPs were certainly, deficient, in rendering service to the complainant, by neither refunding the amount, deposited by him, nor paying him the compensation.
11. On the other hand, the Counsel for OP Nos.1 & 2, submitted that, no doubt the , Development Agreement R-1/1 dated 6.10.06, was executed between OP Nos.1&2 and OP NO.3, as a result whereof, unencumbered land for the project was to be provided by OP No.3. He further submitted that since OP No.3 did not handover the possession of the entire chunk of land, required for the development of project, the construction could not be undertaken. He further submitted that there was, thus, dispute between the parties, as a result whereof, the matter was referred to the arbitrators and their final decision was awaited. He further submitted that, since there was default on the part of the complainant, in depositing the remaining instalments, towards the price of the flat, he was only entitled to the refund of the amount, if he applied for the cancellation of allotment, after deduction of 5% of the basic price, as per Clause 5(a) of the Agreement dated 15.2.2008. He further submitted that though a period of 36 months was provided under Clause 2.2.1 of the Agreement R-1/1 dated 6.10.2006, and under Clause 9(a) of the Agreement dated 15.2.2008, for the completion of construction, yet the same was to commence, only after the possession of entire of unencumbered land, had been handed over to OP Nos.1 & 2, for the development of project by OP NO.3, but it (OP NO.3) failed to do so. He further submitted that, under these circumstances, OP Nos.1 & 2, were not at all deficient, in rendering service, nor they were liable to pay any compensation.
12. The Counsel for OP No.3 submitted that it was the responsibility of OP Nos.1 & 2 to complete the construction in 36 months, commencing from 6.10.2006 as per Agreement R-1/1. He further submitted that a big chunk of unencumbered land i.e.112 acres on which the residential complex was to be developed, had already been handed over to OP Nos.1 & 2, according to the Agreement, executed between the OPs. He further submitted that the construction of residential flats could certainly be started by OP Nos.1 & 2, on that land, but they did not do so intentionally and, as such, they were liable to pay the amount deposited by the complainant.
13. 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.52,08,437.50, in instalments, towards the price of the 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.
14. 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 R-1/1. 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. In the instant case, the possession of 112 acres of land which was unencumbered was admittedly handed over to OP Nos.1 & 2 for the development of project. On this land, construction of the residential units could certainly be undertaken, if OP Nos.1 & 2 wanted to do it. The mere fact that it was an integrated project, does not mean, that if a few acres of land (measuring about 11/12 acres) was not given to the developer, due to some dispute, the construction could not be undertaken. Therefore, it was not on account of the circumstances, beyond the control of the developer, that delay was caused in the construction of the residential units . The developer also could not take shelter of force maejure 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. 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.
15. The next question, that arises for consideration, is, as to whether the complainant is entitled to the refund of the amount deposited by him with interest or not ? Clause 9(d) of the Flat Buyer Agreement, which is relevant, to answer this question 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.
16. The complainant deposited the instalments, in time, with the hope of getting possession of the flat allotted to him, within a period of 36 months from 10.6.2006, but all his hopes were dashed to the ground when he found that even by the year 2010, not a single brick had been laid, at the spot, what to speak of construction of flats, and delivery of possession thereof to the buyers. In these circumstances, the complainant could not wait for an indefinite period. The only option with the complainant, in such circumstances, was to ask for the refund of the amount. He, thus, issued a legal notice dated 27.9.2010 Annexure C-9 for the refund of amount with interest, but the OPs failed to do so. The plain reading of Clause 9(d) extracted above, reveals that if the Developer, for whatever the reasons may be, fails to deliver the residential unit to the buyer, the Developer and the Chandigarh Housing Board shall be liable to refund the amounts received from the buyer, with interest, at the SBI Term Deposit Rate, as applicable on the date of refund. It is, therefore, held that the complainant was entitled to the refund of the amount with interest, as per Clause 9(d) of the Flat Buyer Agreement. The OPs were, thus, deficient, in rendering service by neither delivering the possession of the flat, within the stipulated time, nor refunding the amount with interest as provided under Clause 9(d) of the Agreement, referred to above. The complainant is, thus, held entitled to the refund of the amount of Rs.52,08,437.50p with interest at the SBI term deposit rate, as per Clause 9(d) of the Agreement, referred to above.
17. 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 15.2.2008, 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.
18. The plain reading of Clause 5(a) extracted above, clearly goes to show that admittedly payment of the 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 the payment of instalments, or 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 instalments was made by the complainant, from time to time, as and when the same fell due. There was no delay, in making payment of the price of the flat through instalments, on the part of the complainant. Since, after the expiry of the period of 36 months from 6.10.2006, not even a single brick had been laid, the complainant had 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, as held above. The submission of the Counsel for the OPs ,in this regard, being without merit, must fail, and the same stands rejected.
19. The next question, that arises for consideration, is, as to whether, the complainant was entitled to compensation for not handing over possession to him, as per the terms and conditions of the Agreement referred to above and for causing him physical harassment and mental agony, or not ? Clause 9 ( C ) of the Agreement, referred to above, which is relevant for answering the question, reads as under :
9(c) In case of possession of the built up area is not offered to the Buyer within a period of 36 months or extended period as stipulated in sub-clause (a) above the Buyer shall be entitled to receive from Developer compensation @ Rs.107.60 per sq.mtr (Rs.10/- per sq.ft) of the super area of the unit per month and to no other compensation of any kind. In case the Buyer fails to clear his account and take possession of the unit within30 days of offer, the Buyer shall be liable to pay to the Developer holding charges @ 107.60 per sq.mtr. (Rs.10/- per sq.ft) of the super area of the unit per month in addition to the liability to pay interest to the sellers and other consequences of default in payment.
20. The possession of the flat was not offered to the buyer within a period of 36 months from 6.10.2006. As stated above, even till date not even a single brick has been laid at the spot. In these circumstances, as per Clause 9( c) of the aforesaid agreement, the complainant only became entitled to compensation @107.60 per sq.mtr(Rs.10/- per sq.ft. ) of the super area of the unit, per month. The language of Clause 9(c) is unambiguous and clear. The parties executed the Agreement aforesaid with eyes wide open, and thus, they are bound by the terms and conditions of the same. No compensation beyond the terms and conditions contained in Clause 9( c) of the aforesaid agreement could be claimed by the complainant. It is, thus, held that the complainant is entitled to compensation @ Rs107.60 per sq. mtr (Rs.10/- per sq. ft.) of the super area of the unit per month, from 5.10.2009 the last date of completion of the project till actual payment was made to him.
21. For the reasons, recorded above, all the six complaints, referred to above, are accepted with costs of Rs.5000/- each, in the following terms ;
(i) Parsvnath Developers Limited and the Chandigarh Housing Board are held liable jointly and severally to refund the amount deposited by the complainants, in each complaint case, alongwith interest at the SBI Term Deposit rate as applicable on the date of refund, with effect from the respective dates of deposits, till actual realization, as provided by Clause 9(d) of the Flat Buyer Agreement ;
(ii) Parsvnath Developers Limited shall also pay compensation, in each complaint case, for not offering the built up flat within 36 months @ Rs.107.60 per sq. mtr (Rs.10/- per sq.ft) of the super area of the unit, per month, from 5.10.2009, the last date of completion of the project, till actual payment to the complainants is made, as provided by Clause 9( C) of the Flat Buyer Agreement.
(iii) The aforesaid directions shall be complied with, by the OPs, in all these complaints, within 30 days, from the date of receipt of a copy of the order, failing which they shall be liable to pay penal interest @ 12% p.a, on the aforesaid payable amounts.
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to record room.
Announced June 1,2011 sd/-
(JUSTICE SHAM SUNDER) President Sd/-
( NEENA SANDHU) Member js