JUSTICE V.K.JAIN (ORAL) The complainant, namely, Arup Kanti Pait and his wife Kakali Pait booked a residential flat with the opposite party in a project, namely, ‘Parsvnath Exotica’ which the opposite party was to develop in Ghaziabad. Unit No.B5-101 in the aforesaid project was allotted to them vide letter dated 16.6.2012. They executed a Flat Buyer Agreement with the OP Parsvnath Buildwell Pvt. Ltd. on 17.7.2012. Clause 10(a) of the agreement relating to construction of the flat reads as under:- “10 (a) Construction of the flat shall commence within six (6) months from the date of signing of the agreement between the parties, on receipt of sanction of building/plans/revised building plans and approvals of all concerned authorities including the Fire Service Department, Civil Aviation Department, Traffic Department, Pollution Control Department, as may be required for commencing and carrying on construction subject to force majeure, restrains or restrictions from any courts/authorities, non-availability of building materials, disputes with contractors/work force etc. and circumstances beyond the control of the Developer and subject to timely payments by the Flat Buyers. The construction shall be completed within a period of thirty six (36) months from the date of Execution of this Agreement(ü) Commencement of construction of the particular Tower in which the flat is located (tick whichever is applicable) No claim by way of damage/compensation shall lie against the Developer in case of delay in handing over possession on account of the said reasons. If the construction of the particular tower in which the flat is located could not be completed within Thirty Six (36) months of the date of execution of this Agreement/start of construction thereon, (whichever is applicable) the Buyer acknowledges that the Developer shall be entitled to a grace period of six (6) months to complete construction.”
2. It would thus be seen that the construction was to be completed within 36 months of 17.7.2012 when the agreement between the parties was executed, though the opposite party was also entitled to a grace period of six months for this purpose. The construction, therefore, ought to have been completed by 17.1.2016. The grievance of the complainants is that the construction is not complete despite they having paid Rs.7043974/- to the developer. The complainant is, therefore, this Commission with the following prayers:- (i) Direct the Opposite Parties to deliver possession of the flat, viz., No.B-5/101, Parsvnath Exotica, Ghaziabad, complete in all respect, immediately to the Complainants; (ii) also pay interest at the rate of 24% per annum on the amount paid by the Complainants, i.e., Rs.70,43,974/- for period of delay in delivery of the flat, i.e., from 17.07.2015 till the date the physical possession is handed over to the Complainants; (iii) in the alternative, direct the Opposite Parties to refund the amount deposited by the Complainants (Rs.70,43,974/-) With interest at the rate of 24% per annum thereupon from the date of deposit till the date of payment thereof; (iv) direct the Opposite Parties to pay compensation of Rs.10.00 lakhs to the Complainants for the harassment and agony caused to them; (v) direct the Opposite Parties to pay litigation cost of Rs.1.00 lakh to the Complainants” 3. The complaint has been resisted by the opposite party on several grounds which, however, need not be considered since the matter is state to be covered by the decision of this Commission dated 6.5.2016 in CC/45/2015 - Parsvnath Exotica Ghaziabad Resident’s Association Vs. Parsvnath Buildwell Pvt. Ltd. as modified by the Hon’ble Supreme Court vide its order dated 29.11.2019 in Civil Appeal No.5336 of 2016. 4. The learned counsel for the complainant submits that this complaint may also be disposed of in terms of the above-referred order of the Hon’ble Supreme Court. The OP also has no objection to such an order. The order of the Hon’ble Supreme Court to the extent it is relevant, reads as under:- “The order passed by the NCDRC reads as follows: “(i) The opposite party No.1 in Consumer Complaint No.45 of 2015 namely Parsvnath Developers Ltd. is directed to refund, within four weeks, the entire amount paid by the 39 allottees in Towers B-D who are the members of the complainant Association, along with compensation in the form of simple interest calculated @ 12% per annum with effect from the date of each payment till the date the said refund is paid, along with entire compensation in terms of this order; (ii) The opposite party No.2 in Consumer Complaint No.46 of 2015 namely Parsvnath Buildwell Ltd. is directed to refund, within four weeks, the entire amount paid by the 31 allottees in Towers E & F who are the members of the complainant Association, along with compensation in the form of simple interest calculated @ 12% per annum with effect from the date of each payment till the date the said refund is paid, along with entire compensation in terms of this order; (iii) The opposite party No.1 in Consumer Complaint No.45 of 2015 namely Parsvnath Developers Ltd. and opposite party No.2 in Consumer Complaint No.46 of 2015 namely Parsvnath Buildwell Pvt. Ltd. are also directed to pay within four weeks, Rs.3,00,000/- as compensation to each of their respective allottees, who are members of the complainant Association, failing which the said amount shall carry interest @ 12% from the date of this order till the date of payment / recovery; (iv) The opposite party No.1 namely Parsvnath Developers Ltd. in Consumer Complaint No. 45 of 2015, shall pay Rs.25,000/- as the cost of litigation to the complainant; (v) The opposite party No.2 in Consumer Complaint No. 46 of 2015 namely Parsvnath Buildwell Pvt. Ltd. shall pay Rs.25,000/- as the cost of litigation to the complainant.” That leaves with the Court with adjudicating on the direction of the NCDRC for the payment of compensation of Rupees Three Lakhs to each of the home buyers. We are of the view that the aforesaid amount must be deposited and paid. We accordingly direct the appellant to deposit an amount sufficient to cover the payment of Rupees Three Lakhs each to the respondents within four weeks. However, if a surplus is lying with the Registry, the balance to make up the total amount payable at the rate of Rupees Three Lakhs each shall be deposited within a period of four weeks after taking due credit of the amount which is lying in the Registry of this Court. An amount of Rupees Three Lakhs shall be disbursed to each of the home buyers against proper identification and following the same pattern as was indicated in the earlier orders of this Court. We are of the view that the appeals should now be closed in terms of the above directions. The award of interest at the rate of ten per cent per annum instead and in place of twelve per cent per annum to each of the buyers would provide a reasonable compensation to the buyers for the delay which was caused in handing over of the possession and in lieu whereof the refunds have been made. We accordingly modify the order passed by the NCDRC in the above terms.” 5. The learned counsel for the complainant also states on instructions that the complainants do not want to wait any more for the possession of the allotted flat and want refund of the amount paid by them to the opposite party alongwith appropriate compensation etc. 6. The complaint is, therefore, disposed of with the following directions:- The opposite party shall refund the entire principal amount of Rs.7043974/- to the complainants alongwith interest @ 10% p.a. from the date of each payment till the date of refund. The opposite partyshall also pay a compensation quantified at Rs.3 lakhs to the complainants in addition to the compensation by way of interest. The payment in terms of this order shall be made within three months from today.
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