PER  JAGROOP  SINGH   MAHAL, MEMBER

                        Succinctly put, allured by the representation of the OPs, the complainants booked a 4 Bed Room Flat Pent House in the project of the OPs vide application dated 20.9.2007 and deposited the cheque amounting to Rs.12,85,000/- as earnest money.  Accordingly allotment letter dated 28.9.2007 for Flat Pent House No.2 on the 3^rd floor in Block No.B-2, was issued which subsequently was changed on their request.  The construction of the residential units was to be completed within 36 months from 6.10.2006 i.e. when the development agreement was executed between the OPs.  On the asking of the OPs, the complainants further paid an amount of Rs.12,86,500/- vide cheque dated 4.2.2008.  Thereafter the OPs got the Flat Buyer Agreement dated 15.2.2008 executed with the complainants.  However, when the complainants personally visited the site, they were shocked to find that there was no development.  Per force, vide letter dated 22.8.2008 they requested the OPs to cancel the booking and refund the deposited amount of Rs.25,71,500/-, but they failed to do so. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2.                              OP No.1, in its written reply, admitted that the complainants applied for the flat in question in the aforesaid project.  It was also admitted that a flat buyer agreement was executed amongst the complainants and the OPs on 15.2.2008.  It was stated that the possession of the entire unencumbered land, required for developing the project, was not handed over to OP No.1, by the Chandigarh Housing Board OP No.2 and, as such, the construction could not be started.  It was further stated that a 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 stated that the complainants were only entitled to refund of the amount, after deduction of 5% of the basic price of the flat, in question (i.e.Rs.12,85,000/-), as per the provisions of clause 5(a) of the agreement and they have already received the amount of Rs.12,86,500/-. It was denied that OP No.1 was deficient, in rendering service, and indulged into unfair trade practice. The remaining averments were denied, being wrong.

3.                              OP No.2/Chandigarh Housing Board, in its reply, stated that the developer was solely responsible, for constructing the residential units, within the stipulated period, and delivering possession of the flat, to the complainant.  The payment of Rs.12,86,500/- and the execution of the Flat Buyer Agreement was admitted.  It was stated that an amount of Rs.12,86,500/- was refunded to the complainants vide demand draft dated 31.10.2008 in accordance with clause 5 of the Flat Buyer Agreement.  It was denied that OP No.2 was deficient, in rendering service, or it indulged into unfair trade practice.

4.                              Parties led evidence in support of their contentions. 

5.                              We have heard learned counsel for the parties and carefully gone through the record and material placed on the file.

6.                              The contention of the ld. Counsel for the OPs is that the deduction of Rs.12,85,000/- is perfectly legal and valid in view of clause 5(a) of the Flat Buyer Agreement (Annexure CW-1/5) in view of which they can forfeit the earnest money being 5% of the basic price i.e. Rs.2,57,15,500/-. Clause 5(a) of the Flat Buyer Agreement reads as follows :-

            “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 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.”

The above clause makes it clear that there are only two eventualities under which the earnest money, being 5% of the basic price, can be forfeited by the OPs.  The same are as follows :-

i) if the payment is not made within the stipulated period and/or

ii) if the buyer commits breach of any of the terms and conditions of the agreement

7.                     In the present case, there is no such averment, nor any proof adduced by the OPs, if the payment was not made within the period stipulated under the agreement, therefore, there was no question of application of this clause on the complainant. Similarly, there is neither any proof nor any allegation if the complainant committed any breach of any of the terms and conditions of the agreement.  The forfeiture of Rs.12,85,000/-, therefore, cannot be justified under clause 5(a) of the agreement

8.                     The learned counsel for the OP No.1 has referred to the letter Annexure OP-1/3 dated 22.8.2008 vide which, the complainant agreed that the OPs have a right to withhold 10% of the application money, which amounts to Rs.1,28,500/- and refund the rest of the amount to them. It is argued that in view of this admission, the total amount of Rs.12,85,000/- cannot be refunded to him. It is also argued that the complainants were wrong in projecting this fact in their letter Annexure OP-1/3 but the actual position is that in view of Clause 5 (a), the OPs are entitled to withhold 5% of the basic price of the flat. According to the learned Counsel for OP No.1 himself, the so-called admission made in the prayer clause of Annexure OP-1/3 is factually incorrect. The OP No.1 did not withhold the amount of Rs.1,28,500/- on its basis but withheld a total amount of Rs.12,85,000/-. The learned Counsel for the complainants also argued that this contention was wrongly mentioned by the complainants and they withdraw the same. Any admission, which is factually incorrect can be withdrawn by the complainant at any time and, therefore, the OPs cannot withhold even the amount of Rs.1,28,500/- on its basis.

9.                     It is not a case in which the OPs were ready with the construction and the complainant declined to get the flat.  In fact, till that date the OPs had not even started the preliminaries for raising construction.  Even till today, no construction has been raised.  It is admitted case that a dispute has arisen between the OPs inter se with respect to the ownership of the land, over which the flats are to be constructed, due to which the entire matter has gone into dispute.  The agreement was entered into between the OPs on 6.10.2006  and in view of clause 2.2.1 thereof, the OP-1 was to develop the site within 36 months therefrom.  The said period has since expired on 5.10.2009, however, as yet nothing has been done at the spot and, therefore, even if the complainants had not withdrawn the amount the OPs would not have been able to deliver possession of the premises to him within the period agreed between the parties.  The OPs, therefore, cannot be permitted to take benefit of their own wrongs in not raising construction at the spot and then withholding the amount without any basis.

10.                   The learned Counsel for the complainants has also argued that in view of Clause 9 (c) of the agreement Annexure CW-1/5, the complainants are entitled to receive from the developer, compensation @ Rs.107.60 per sq. mtr. (Rs.10/- per sq. ft.) of the super area of the unit per month, if the possession is not offered to them within a period of 36 months of the execution of the agreement. There is no dispute about it that no construction has been raised at the site and possession has not been offered by the OPs to the complainants. The complainants would be, therefore, entitled to the compensation of Rs.10/- per sq. ft. as per this clause. However, this request is opposed by the learned Counsel for the OPs on the ground that there is no such prayer made by the complainants in their complaint and, therefore, what is not demanded, cannot be granted. We do not find any merit in this argument. It was mentioned by the complainants in Clause (c) of the prayer to grant any other or further relief including penalty for harassment, which this Commission may deem fit, just and proper in the facts and circumstances of the case. There are a number of cases filed by the applicants/consumers against the OPs and many of which have since been disposed of. In those cases, the complainants have been allowed relief in view of Clause 9 (c) of the Flat Buyer Agreement and in order to maintain consistency, we are of the opinion that in this case also, the said relief to which, the complainants are otherwise entitled, should be granted in view of the prayer clause (c) of the complaint.

11.                   The complainants shall be, therefore, entitled a compensation @ 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 of the amount is made to them.

12.                   In view of the above discussion, we are of the opinion that the complaint must succeed and the same is accordingly allowed 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, 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 payment to complainants, as provided by Clause 9(d) of the  Flat Buyer Agreement ;

(ii)             Parsvnath Developers Limited shall also pay compensation, (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, 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.

(iv)            The OPs shall jointly and severally pay to the complainants Rs.5,000/- as costs of litigation.

13.                   Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.

Pronounced.

11^th August, 2011