Pushpa Builders Flat Buyers Association vs PUSHPA BUILDERS LTD

THIS Original Petition by Pushpa Builders Flat Buyers Association was originally directed against M/s. Pushpa Builders Ltd., LIC Housing Finance Ltd. and Housing Development Finance Corporation Ltd. During the pendency of the original petition the complainant made an application under Order XXIII Rule 1(3)(b) read with Section 151 of the Code of Civil Procedure to withdraw the complaint and the reliefs sought therein as against LIC -Housing Finance Ltd. and Housing Development Finance Corporation Ltd. and to proceed against only M/s. Pushpa Builders Ltd. M/s. Pushpa Builders Ltd. is the only opposite party and we will notice only the allegations against this opposite party. In the pleadings deficiency in service by the builder is alleged that the construction work carried out by the opposite party is full of defects, imperfections and shortcoming in the quality of construction and is woefully deficient and inadequate in the quality, nature and manner of performance that was promised by the opposite party at the property meals organised by it to sell the flats in the proposed residential complexes as well as in the advertisements in the national Dailies, magazines and the electronic media. All conceivable reliefs are claimed by the complainant in the petition.

WE will only notice the bare facts shorn of all unnecessary details, irrelevant pleadings, inferences, accusations and innuendoes. The complainant is an association which had filed its application for registration under the Societies Registration Act, 1860, signed by 11 members who were desirous of forming a Society and claims to be competent to file the complaint under the Consumer Protection Act, 1986, not only on behalf of all members of the Association but also on behalf of all flat buyers. The opposite party is engaged in providing services as builders by acquiring land, developing sites, construction of buildings thereon, booking flats/ houses for consideration and in case of self - financing schemes consideration is payable and linked with the progress of construction and the time bound schedule for delivery of possession. It is the common case of the complainant and the opposite party that opposite party released in November 1988 advertisements in various news papers and magazines about its proposed projects, including self -financing schemes Pushpa Vaishali Apartments and Pushpa Aakash Apartments with which this Original Petition is concerned and the organisation of two property melas in August 1989 and November, 1990. According to the allegations made in the complaint the applicants filled in necessary application forms for registration of allotment of residential apartments including particulars of the proposed space, number, floor, approved super area, agreed cost etc. and the applications are duly signed as token to their having accepted the allotment on terms and conditioned mentioned therein. At the time of bookings in melas, the registration amount and booking amount receipts were only issued to the applicants who had deposited the necessary earnest money as per terms of booking. The standard agreements, however, to sell were duly displayed and the receipts on record mentioned the booking on terms and conditions. It is the common case that the payments for the flats was to be made in instalments related to construction activity of the builders and the time schedule is mentioned in the terms and conditions. But in one case of Shri S.J.S. Chattwal, the booking was with lump - sum amount under Multi -Benefit Scheme which gave additional benefits such as buy -back guarantee worked out on the basis of 22% return per annum from the date of receipt of the last instalment completing 100% payment which comes to 150% after two years. The complainant alleged in the complaint that the opposite party had advertised extensively in relation to the proposed construction of Pushpa Vaishali and Pushpa Aakash complexes of apartments with most sophisticated amenities including amongst the following features : ''Highlights (1) Just 15% Ground coverage, all rest landscaped lush green, parkings and recreational areas. (2) Choice of Residential Deluxe Simplex, Duplex Apartments and Penthouses. (3) Types - MIG, High MIG and High categories. (4) Range - Two rooms, three rooms and four rooms Duplex Apartments with and without gardens/terraces. (5) White marble stone flooring in the lift lobby, common corridors, staircases, drawing & dining rooms, bath rooms & kitchens & glazed tiles upto roof height in the bathrooms and kitchens. (6) Balance entire flooring in white cement with white marble chips. (7) High Speed (13 passenger) modern elevators. (8) Most aesthetic, permanent external finish. (9) Payment in easy interest free instalments. Special Features : (1) Independent electric transformer in each apartment. (2) Stand by generator sets. (3) Most modern fire fighting system. (4) Central garbage/wastage chutes. (5) Central telephone exchange with a telephone extension in each apartment. (6) Central T.V. antenna. (7) Central video system. (8) International size swimming pool in the complex. (9) Independent club house and recreation centre in the complex with tennis and badminton Courts. (10) Community hall in the complex. (11) Parks & playgrounds for children. (12) Huge parking -areas all around the complexes/buildings.

IT is further alleged that when the prospective buyers demanded execution of the agreements they were told that printed agreement forms were out of stock, but those agreement would incorporate all the facilities and features guaranteed in the handouts, brochures and advertisements as also the builders covenants with regard to delivery of flat by December 1991 without any escalation of price and without any extra charges of any nature whatsoever. Agreements have been executed only in some cases and are on record. The date of handing over of the possession is given by December 1991 but in some cases later dates are also given. The complainants case is that the covenants of the opposite party in the sale agreements bore no resemblance to the commitments made by the opposite party at the time of registration through its various printed handouts as also the claims made orally and through the electronic media. It is pleaded that the proposed buyers pointed out that it was one sided agreement heavily loaded in favour of the opposite party, but the opposite party refused to pay any heed to the buyers request for a more equitable agreement. The complainant say that by the time the agreements were executed, all the buyers had paid more than 50% of the monies due from them for the flats and they virtually signed on the dotted lines as refusal to do so was at the risk of forfeiture of their investments made earlier.

THE complainant has filed a list of members of the association with details of their re - spective bookings. These members of the complainants association whose cases were considered and argued during the hearings were ultimately reduced to 10 although Mr. Arun Khosla learned Counsel for the complainant at - tempted but in vain, to enlarge the scope of this Original Petition. The list of flat buyers is as under : S. No. Name Flat No. Date of Booking AMT. Paid (Rs.) 1. Priya Kachroo and Sarena Kual, House No. 1968, Sector 28, Faridabad A -10, Saraswati Pushpa Aakash 28.5.89 2,47,000/ - 2. Lt. Col. C.S. Joshi, 142, Pratap Chowk Delhi Cantt. B -5, Block ''E'' 3rd Floor, Pushpa Vaishali 18.8.89 2,09,028/ - 3. Nandini Aggarwal, R -71,G. Kailash -I New Delhi -110049 B -2/G.F. Kaveri Pushpa Aakash 24.5.89 4,21,000/ - 4. Harish Goel, 221, Sukhdev Vihar, New Delhi A -06,3rd Floor Kaveri 5.6.89 4,00,220/ - 5. S.J.S. Chhatwal C/o U.P.S.C. Dholpur House, New Delhi A -1, 3rd Floor Saraswati Pushpa Aakash 15.1.91 6,99,000/ - Jalaj Sharma, 90/89B, Malviya Nagar, New Delhi -110017 Ganga Block Pushpa Aakash 27.5.89 2,33,200/ -

G .S. Chawla, 18/1, Kalkaji, New Delhi -110019 A -1, G. Floor, Kaveri Pushpa Aakash 25.5.89 6,15,322.40/ -

R .P. Paliwal Sharad Paliwal, A -3, 31A(MIC) Paschim Vihar, New Delhi A -1/F.F. J Block, Pushpa Vaishali Apartment 2,93,523/ - Dilip Daga 33, Sadhna Enclave, New Delhi -110017 A -01, 3rd Floor Kaveri Pushpa Aakash 2.6.89 4,00,220/ -

SURENDRA Singh, B -5, Third Floor Saraswati Pushpa Aakash 3,48,541/ - 6. It is further alleged that the opposite party has misrepresented to the flat buyers and committed fraud by giving the complainant the .promise of a sophisticated flat as per its brochures which bear no resemblance to the executed sale agreements, or the factual situation as it prevails at the site of the proposed residential complex. It is also pleaded that the opposite party wrote to some flat buyers in June 1993 offering to deliver possession of a small number of flats with limited facilities, and demanded final payment on the assurance of giving possession by September, 1993. The flat buyers on a visit found that Pushpa Aakash and Pushpa Vaishali Complexes were far from completion and in fact the construction activity had been totally suspended. They also found that a few storeys of the proposed Saraswati and Kaveri Blocks stood at the site in an unfinished state while the other proposed Blocks Ganga, Krishna and Yamuna had not even had their foundations laid. The complainant claims that even if some flats were completed and possession delivered, it would not be habitable because of the constant construction activity and movement of workers to the upper floor of the complex. There is also no arrangement for electricity, sewerage and other residential amenities and the opposite party has not obtained the necessary completion occupation certificate from the Competent authorities. The complainant alleged that the opposite party had resorted to notices of cancellation of bookings and forfeiture of earnest money in the event of flat buyers not paying their final instalment and taking possession. The complainant alleged that the construction work carried out by the opposite party is full of defects, imperfections and shortcomings in the quality of construction and is woefully deficient and inadequate in the quality, nature and manner of performance that was promised by the opposite party. The opposite party has indulged in innumerable unfair trade practices as mentioned in the complaint and have not completed and delivered the possession of the flats to the members of the complainant association within the agreed period. The complainant claimed the following reliefs : ''(a) complete the promised flats in the Pushpa Vaishali and the Pushpa Aakash Complexes in a specific time frame deemed reasonable by the Honble Commission and deliver possession thereof to the flat buyers, who, whereupon, of course would be ready and willing to pay the balance due from them as agreed at the time of booking. (b) pay interest to the flat buyers calculated at the rate of 24 per cent per annum with quarterly rests, on the moneys paid by them from December, 1991 when the flats were promised to be delivered till the date of delivery of possession of flats. (c) pay compensation for the mental agony and torture suffered by the flat buyers as a result of the various nefarious deeds of the Company from the date of booking, enumerated hereinbefore, as deemed proper by the Honble Commission. (d) pay compensation for the rental paid by the flat buyers in alternate accommodation taken by them in the absence of the flats that they were scheduled to occupy in December, 1991, for the entire period from December, 1991 till the date of delivery of the promised flats to be calculated on the basis of the prevailing rentals for accommodation as sophisticated as that promised to be delivered by the Company. (e) pay the entire interest liability accruing to the flat buyers on the loans taken by them through the Company or otherwise from either LIC or HDFC or such other financial institutions. (f) stop soliciting and collecting any further moneys from the flat buyers till the disposal of this complaint. (g) not to cancel any bookings of flats and forfeit any of the flat buyers payments on account of the latters refusal to pay further dues till construction work is deemed commensurate with the payments made earlier. (h) not to sell, alienate or in any other manner dispose of or have any encumbrance placed on the Pushpa Vaishali and Pushpa Aakash Complexes till the final disposal of this complaint on such terms and conditions which this Honble Commission may deem just, and fair. 7. A very detailed written version has been filed by the opposite party. The opposite party has raised several preliminary objections namely : (i) that the present complaint as framed and filed is not maintainable, (ii) that this Commission has no pecuniary jurisdiction to try the present original complaint, (iii) that the complainant has not come to this Commission with clean hands and material particulars have been concealed as the booking of various applicants have been cancelled for breach of terms of booking and default with respect to terms of booking, (iv) that the present complaint in view of serious allegations of fraud etc. as is apparent from the bare perusal of the complaint cannot be gone into by this Commission; and (v) that the flat buyers have purchased the flats for commercial purposes and thus are not consumers within the scope of the Act. 8. The opposite party has denied in the corresponding paragraphs of their written version the allegations, accusations and inferences drawn by the complainant. They have also given additional pleas in which version of the opposite party is in these words. It is pleaded that after procuring lands for both of its projects namely Pushpa Vaishali Apartments and Pushpa Aakash Apartments, the opposite party informed the public at large and booked residential apartments proposed to be constructed in both the schemes. Usual publicity was carried and property mela/exhibitions were conducted in the years 1989 and 1990. News papers publicity was also carried out. The two projects were in the nature of self -financing schemes and the construction proposed ,to be carried out by the opposite party was subject to payment of regular monthly instalments stipulated in the agreements. The copies of the printed standard application form required by the applicant for allotment and copies of standards sale agreements of Puhspa Aakash and Pushpa Vaishali Schemes have been filed. The opposite party applied for sanction of building plans with the concerned Ghaziabad Development Authority. The external developments around the plots allotted to the opposite party as well as other builders were only to be developed by the Ghaziabad Development Authority. However, in the meanwhile the State Government of Uttar Pradesh issued circular/notification stalling all private group housing development schemes in 1990 practically for one year. The construction activity could only be commenced after the opposite party initiated proceedings before the High Court of Uttar Pradesh and got the illegal orders quashed. The opposite party got the plans sanctioned and started construction in 1991. It is pleaded that during 1991 and onwards the real estate business witnessed a recession and there was all over slump in the property business. The member of the complainant association who are not consumers but only investors felt that there may not be much appreciation in the apartments booked by them and were hesitant in paying the instalments/or even stopped the payments on one pretext or the other. The failure on the part of defaulter allottees in making the payment of instalments as per the schedule of payments resulted in a slow -down of the pace of construction and had adverse effect on the overall progress of the project. The opposite party states that despite non -cooperation from defaulting allottees the opposite party continued with the construction activities by investing funds of its own sources as also funds arranged from the financial institut;ons. It is pleaded that delay in clearing huge out standings by the allottees to the opposite party and the interest on the borrowings has resulted in further increase in the cost of the project and overheads. It is claimed that the opposite party has always been ready to perform its part of agreement with the allottees subject to their making payment of balance amounts. It is claimed that by now more than 80% of the construction work out of the total apartments booked by the opposite party in Pushpa Aakash Apartments and 45% of construction work out of total apartments booked in Pushpa Vaishali Apartments have been carried out and that possession has been given to 15 allottees who have cleared their full dues and 32 other apartments are ready for possession to be given to those allottees who have already made a substantial payment. It is further pleaded that on the request of few allottees the opposite party has also given alternative accommodation to those allottees who have cleared their dues and some of these changes/transfers are from Pushpa Vaishali to Pushpa Aakash Apartments in Ghaziabad, Pushpa Tower, Ghaziabad, Pushpa Apartments Sahibabad and in Harbans Bha wan -II and Pushpa Deep at New Delhi schemes of the opposite party. The opposite party alleged that they have also offered possession in phases to all 108 allottees of Puspha Aakash Apartments and Puspha Vaishali Apartment and the opposite party is in a position to give possession to balance 190 allottees of both projects, in Pushpa Aakash apartments where two towers Saraswati & Kaveri having 200 apartments are being completed in phases. It is again pleaded that most of the allottees being investors are not bonafide consumers within the provisions of the Act and there is no deficiency in providing services on the part of the opposite party. It is pleaded that the opposite party has invested huge amount of its funds in the said two projects and from the amounts collected from the various allottees but the success or the failure of the projects depends on the timely payments of the instalments by the allottees who have failed to honour their commitments in accordance with the terms of the contract. The opposite party prays for dismissal of the complaint. 9. The complainants filed their rejoinder as also the documents. The parties filed their affidavits in support of the averments in their pleadings as well as in proof of the documents on the record. The case came up for hearing before this Commission on 19.1.95. This Commission explored the possibilities of an amicable settlement of the entire dispute between the parties and there was discussion of various proposals during the hearing. Mr. Yogesh Kumar Jain, Senior Advocate appearing on behalf of the opposite party as well as Mr. V.K. Soin., Managing Director of the opposite party who was present in person referred to us to the copies of the photographs of the construction that had been completed. We felt satisfied with the production of photographs that sufficient number of flats have been built and are ready for allotment in Pushpa Aakash wherein all members of the complainant Association could be provided with accommodation in accordance with the contract. It was, however, stated that the work of final finishing had not been completed in those flats and that it would have to be done by expending substantial amounts. The Counsel for the opposite party stated before this Commission that substantial amounts are due from the members of the complainant Association by way of unpaid instalments and unless those amounts were also paid it would not be just to expect the builder to expend money from his pocket and attend to the finishing work. At that time we considered that there was some force in the aforesaid submission. We directed the members of the complainant Association to pay to the opposite party within four weeks from that date the amount representing 75% of the balance instalments which was outstanding along with other charges payable as per agreement such a electricity and water supply installation charges. In respect of all the purchasers who made such payments within the time limit specified above, the builder was required to proceed to carry out the work of finishing and to make the flats ready in every respect for occupation within a period of six weeks from the date on which the payments were made. It was also made clear that it would be open to the builder to allot the flats to the members of the complainants Association in Pushpa Aakash Complex even if the original booking was in respect of Pushpa Vaishali Complex. After completing the work of finishing within the period of six weeks as specified, the builder was called upon to issue intimation to those amongst the members of the association who had complied with the order that they would be given possession on specified date on payment of entire balance amount due from each allottee under the terms of the agreement between the parties. 10. It appears that the complainants Counsel wrote a letter dated 25.1.95 to opposite party suggesting a meeting with the Secretary of the complainant Association at a mutually convenient time in order to sort out the details of the amicable settlement and sought a confirmation. In reply to letter dated 25.1.95 the opposite party wrote back that C.M.D. was not available and was out of town on important official work and therefore it was not possible to hold the meeting. The Counsel for the complainant who informed that the opposite party had already sent letters to the members of the association given in the complaint requesting them to comply with the orders dated 19.1.95 of this Commission. It was reiterated that the opposite party would in turn fulfill its obligation to complete the flats and give possession thereof. Some of the flat buyers asked for detailed statement from the opposite party as to what amount was due to enable them to make payments. Yet other raised some queries. The fact remained that no additional payments were made and the work was not commenced by the opposite party. Mention was made by the Counsel for the parties on different dates before this Commission making certain allegations against each other but as it was only a ''mention'' no record was maintained.

WHEN the matter came up for hearing before this Commission again allegations and counter allegations were made by the partys Counsel. In order to find out whether sufficient number of flats had been built and are ready for allotment to the members of the complainants Association as was projected in the photographs shown to us, we considered it best to appoint a technical expert. By order dated 26th April, 1995 of this Commission, Mr. D.P. Gupta, Retd. Director General (Road Development), Ministry of Surface Transport, Government of India, B -198, Sector 31, NOIDA (U.P) was appointed as an expert to conduct an inspection of the two buildings namely Kaveri and Saraswati in Pushpa Aakash Apartments, Vaishali, Ghaziabad and to make a report to this Commission as to whether the flats in those buildings which were being offered by the builders to the complainants were in a habitable condition or could be made habitable within a period of six weeks from the date of commencement of the finishing work to be carried out therein and also the nature of the works remaining to be carried out in the flats in order to make them habitable. The designated expert was required to mention in the report whether the sewerage system, electricity connections, water supply connections etc. had been duly installed and made functional. He was also required further to report to this Commission whether the environmental conditions relating to hygiene and security were congenial to the flats in question being safely occupied and used by persons to whom they would be allotted. The inspection was required to be conducted by Shri D.P. Gupta after giving notice to Mr. Arun Khosla, Counsel appearing for the complainant Mr. P.K. Jain, Counsel for the opposite party whose addresses were also furnished. 10. 10.The expert was given a list of flats proposed to be allotted to the members of the complainants Association by the opposite party and the list is as follows : Name Flat Allotted Block 1. Lt. Co. C.S. Joshi C -3U Upper First Floor kaveri 2. Shri G.S. Chawla A -1 Ground Floor Duplex Kaveri 3. Smt. Nandini Agarwala B -2 Ground Floor Duplex Kaveri 4. Smt. Priya Kachroo C -8 Ground Floor Duplex Kaveri 5. Shri S.J.S. Chhatwal A -1 Third Floor Saraswati 6. Shri Surendra Singh B -2 Third Floor Saraswati 7. Shri Jalaj Sharma C -3 Third Floor Saraswati 8. Shri R.P. Paliwal C -3U Upper First Floor Saraswati 9. Shri Dilip Daga C -3 Ground Floor Duplex Saraswati 10. Shri Harish Goel E -6 Ground Floor Duplex Saraswati 13. Shri D.P. Gupta submitted his detailed report dated May 18, 1995. He examined the facilities for the said two blocks during the inspection relating to the electricity connections, water supply and sewage disposal. He opined that the flats in question have been fitted with electric cables and once the electrical fittings are installed, no problem on that account is anticipated. Water main with one inch ferule connection had been taken from GDA. Tubewells and the pumps are functional. Sewer lines are laid around both Kaveri and Saraswati blocks but those have not been connected. In the mean - while the builder has provided a septic tank/ soak pit which was considered reasonably satisfactory while the builder pursued the matter with the GDA for early installation of trunk sewer lines. The expert however, reported in his report about the crucial stages of completion of work in the following words : ''10. As regards the stage of completion of the work in the flats allotted to the complainants, it is found that none of the flats are at present in habitable condition. 11. The work remaining to be done in these flats consists mainly of finishing the floors, installation of wooden shutters, panels for doors/windows, installation of sanitary fittings like w.c, electrical switches and white washing/distemper work. In three flats on Third floor of Saraswati Block, the work of plastering of walls was in progress on the day of inspection. It is assessed that the remaining work in the flats can be completed in six weeks by the builders by proper planning and scheduling of resources. The undersigned observed that in the few flats, some bathrooms and kitchen did not have any windows for natural light and ventilation and it will not be hygienic. This is not a good design feature. In one flat (allotted to Mrs. Nandini Agarwal) even one of the bed rooms does not have a proper window. A small window is provided which opens towards a shaft opening. It would be difficult for anyone to live in such a flat unless the design is reviewed and corrective steps taken by the Builders.

AS regards provision of lifts in the two Blocks Kaveri and Saraswati, the Builders mentioned that provision has been kept for installation of three lifts in each block. The work of constructing the flats is being completed in first phase, as reported by the Builders, only for flats upto Third Floor and it is understood that these Blocks would be of Twelve Floors ultimately i.e., nine more floors are to be added in the second phase. As indicated in para 4 of this Report, the Third Floor designated by the Builder would relate to sixth level from basement and fifth level from ground. It is difficult to expect the owners of flats in the Third floor to be residing without the availability of lift. The provision of lift is necessary for them even in the first phase.

IT is further noted that the Builders would continue with the work of construction of flats from 4th Floor to 12th floor later on. This would imply that the allottees of flats upto third floor in the two blocks Kaveri and Saraswati would be expected to be residing there, when the construction work is in hand. Such a situation would bring in some problems to these occupants. These would be in the nature of dust nuisance, entry of labour and construction staff in the blocks and hazards of accidents to occupants which in actual practice would be difficult to avoid. From these considerations, it would be imperative that the blocks are completed to the final floor level in one go before expecting the occupants of flats in the partially complete blocks to start residing. Objections have been filed by the opposite party in the affidavit of Shri V.K. Soin dated 20th July, 1995 against the report of the expert Shri Gupta. 14. The first question is whether the present complaint as framed and filed is not maintainable. The complainant association is registered under the Societies Registration Act - XXI of 1860 on 28.9.94 and the photo copy of the Certificate of registration is on record. The memorandum and articles of association is also on record. The association has authorised the President to institute and conduct legal proceedings on behalf of the association and for the benefit of its members. The objects of the association, inter alia, is to look after the interest and welfare of all the persons who have booked/bought flats in Pushpa Aakash and Pushpa Vaishali apartments built by Pushpa Builders. The complaint, in our view is clearly maintainable. The next question whether the said members of the association are consumers within the meaning of the Act, need not detain us in view of the law laid down by the Supreme Court in ''Lucknow Development Authority v. M.K. Gupta,'' III (1993) CPJ 7 (SC). The building activity carried on by the opposite party is service within the meaning of Section 2(o) of the Act. Construction of a flat or house is for the benefit of the person for whom it is constructed and when he hires services of a builder for construction, he is within the ambit and scope of the definition of consumer. Where possession of the property is not delivered after completion of the building within the stipulated period, the delay so caused is denial of service. Any defect in the construction would be denial of comfort and service to the consumer. Any shortcoming in the provisions of essential services such as water, sewerage, electricity supply etc. would be deficiency in service. These projects have been undertaken by the opposite party under self financing scheme with the result that the intending flat buyers have paid for the construction activity as and when it progressed linked to the stages of construction completed. These is no merit in the objection that members of the complainant association are not consumers within the scope and ambit of the Act.

IT is writ large on the record that the opposite party has been deficient in its service as a builder. We have reproduced the list of 10 members of the complainant association with the flat numbers which they had originally booked and the flat numbers which are now being offered by the opposite party. It is obvious that the opposite party has not at all built/ completed and is not in a position to offer possession to 7 out of 10 allottees of their original bookings. Some of the flat buyers had made their booking in opposite partys Vaishali Complex which is admittedly abandoned and one flat buyer had booked in Ganga Block the construction of which has not even commenced. The new price which is being demanded by the opposite party is much higher to the price originally contracted. Shri P.N. Aggarwal in his affidavit dated 18/21.8.95 has annexed an Annexure III a tabulation which shows that these prices are varying between 13% and 108% higher than the original price agreed at the time of booking. The opposite partys affidavit is that the contracted price of the flat is the same as per the original agreement, but the difference in the rate in respect of allotments shifted from Pushpa Vaishali to Pushpa Aakash Complex is because of the difference in rates of free hold land of Pushpa Aakash in comparison to the lease hold of the Pushpa Vaishali. Apart from the fact that there is no corroborative material on record in support of assertion, there is no valid ground or basis or justification for the opposite party to demand additional charges for the simple reason that the default is on the part of the opposite party in not completing and offering possession of the contracted flats and offering in lieu of the other flats. Even in the case of Shri G.S. Chawla, Ms. Nandni Aggarwal and Shri S.J.S. Chhatwal who are being offered the same flats, new price is being demanded by the opposite party. The increase in these three cases @ 28%, 16% and 13% respectively. The extra demand in these cases according to the opposite party is due to the difference in Super Area and Garden Area as originally booked to that which is now being offered. As to how these allottees are bound to accept new area and pay for it is not shown from the record. The opposite party had laid emphasis that substantial amounts are due from the allottees by way of unpaid instalments. As we have already noticed that these projects are Self Financing Schemes and the payments are linked with the stage/ progress of construction. Shri G.S. Chawla has admittedly paid Rs. 6,15,322/ - as against the original contracted price of Rs. 7,85,080/ -, Ms. Nandni Aggarwal has paid Rs. 4,20,555/ - as against original contracted price of Rs. 6,08,725/ - and Shri S.J.S. Chhatwal has paid Rs. 6,99,000/ - as against the original contracted price of Rs. 7,59,000/ -. By no stretch of imagination it can be argued that these allottees have defaulted in making payment, linked with the construction activity/stages as has been found by Shri Gupta, the expert appointed by this Commission that none of the flats are complete or in a habitable condition.

WE have reproduced the relevant part of the report of Shri Gupta with a purpose to highlight the deficiencies in the construction of the complex instead of expressing it in our own words. We accept the report of the expert in toto and hold that the building/flats offered are not habitable. The features of construction and facilities spelled out by the complainant, reproduced above, have been taken out with a coloured tinge from the hand -outs issued by the opposite party at the time of original booking. The exclusive highlights given are modern security system, modern fire fighting system, standby generator sets, central garbage/wastage chutes, high speed modern elevators besides marble stone flooring in the lift lobby, common corridors, stair case, toilets, kitchens and glazed tiles upto roof height in the bathrooms and kitchens, balance entire flooring with white marble chips, most aesthetic permanent external finish, community hall in the complex and play grounds for children are assured. These exclusive features and highlights which were projected to be completed by December, 1991, do not exist at all at the site as per the report of the export. The necessary essential services like water, electricity and sewerage in the Kaveri and Saraswati complexes have not been completed as per the report of the expert. The expert has also pointed out several defects and deficiencies in the construction of the flats offered to the complainant. The expert has also noticed that the builders would continue with the work of construction of flats from 4th floor to 12th floor later on and for the reasons recorded the expert felt that it would be imperative that the complex are completed to the final floor in one go before expecting the occupants of flats in the partially completed blocks to start residing. The expert is right as there are great hazards to the life and property to the occupants and their families if the construction activities goes on the other top floors! The opposite party has filed the affidavit of Shri V.K. Soin dated 4th of October, 1995 asserting that the construction of the upper floors of Kaveri and/or Saraswati block in Pushpa Aakash Apartment can be raised by the opposite party without causing much inconvenience to the residents of lower floors of the said blocks by taking appropriate safety measures as now a days highly advanced technology, equipments are available to ensure safety for further construction on the upper floors of the building. We may also notice an argument in frustration was made by the Counsel for the opposite party that they would abandon the construction of the upper floors of Kaveri and Saraswati blocks. No affidavit to that effect has been filed in support of that statement. The fact remains that the opposite party had contracted to complete the construction of the projects by December, 1991 and has miserably failed in providing services as held above, to the complainant. We have no hesitation in coming to the conclusion that the opposite party has been deficient in service. We have considered the relief which should in the facts and circumstances of the case be granted. It will be most appropriate to direct refund of the amount paid by the said 10 members of the complainant association. There is no dispute as to the quantum of the amount paid as the figures of such payments furnished by the complainant as well as the opposite party, tally with each other. The respective dates of payments are also not in dispute. We have also considered the rate of interest which should be granted to the complainant. It is no doubt true that in case of Shri S.J.S. Chhatwal the booking was with lump sum amount under multi -benefit scheme such as buy -back guarantee worked out on the basis of 22% return per annum. We are, however, inclined to grant a uniform rate of interest of 18% per annum on the respective amounts paid by the said 10 members of the complainant Association till payment. Accordingly the complaint is allowed. The opposite party is directed to refund the amounts paid by the said 10 members of the Association along with interest at the rate of 18% per annum on those amount calculated from the respective dates of payment till the repayment is made. The opposite party is granted three months time from the date of receipt of this order to make the payment to each of the said 10 members of the complainant Association failing which it will be open to the complainant to invoke jurisdiction under Section 27 of the Act. The complainant is also awarded costs assessed at Rs. 10,000/ - against the opposite party. Complaint allowed with costs.