IMPORTANT POINT
If there is an ambiguity or overlapping in the terms of the FBA, the benefit should go to the consumer and not to the service provider.

ORDER

V.K. Jain, Presiding Member—The complainant is a society formed by the members of the Para Military Forces, and is registered under the provisions of Society Registration Act. One of the aims and objectives of the complainant society is to sue and file cases in any legal Forum or Consumer Court on behalf of its members. Other aims and objectives of the complainant include, to arrange loan for its members for acquiring, dwelling houses and to construct and develop or get constructed and developed schools, hospital, community centres etc. The complainant entered into a Memorandum of Understanding (MoU) with Pashupati Buildwell Pvt. Ltd. Predecessor of Sidhartha Buildhome Pvt. Ltd., the name by which the opposite party was known at the relevant time, on 05.11.2008, for booking residential flats on behalf of its members, in Sector – 95 of Gurgaon.

Some of the terms of the MoU executed between the parties read as under:

“(3) That, the prices of the flats and other charges as agreed between the parties are as under:

1. Basic Sale Price – Rs. 1701 per sqft.

2. EDC / IDC – As applicable

3. PLC – NIL

4. Covered car parking (a) – 1,50,000/- for basement stilt car parking (b) 1,10,000/-

5. Power back up – 15,000/kv

6. I.B.M.S. – Rs. 50 per sqft.

7. Club membership – Rs. 25,000/-

8. Firefighting – Rs. 30 per sqft.

(4) That the paramilitary forces welfare society have proposed to book 200 assorted flats of 2, 3, 3+S and 4+S at the initial stage at the agreed rates for a period of 02 months from the date of MoU.

(5) That the builder may increase the basic sale price of the flat by Rs.150/- per sqft at his sole discretion after the expiry of initial period of 2 months. The increase in the basic sale price agreed with a view to accommodate the prospective members of society.

(6) ..................The builder shall have the obligation to handover the flat on completion to the allottee after obtaining occupation / completion and NOC from the competent authority in all respects for transfer of flat. (emphasis supplied)

(8) That the payment of instalment shall be linked with the progress of construction as per the schedule attached at Appex-‘E’. In case of delay in the payment of instalment, the allottee shall be liable to pay interest @ 12% per annum for the delayed period. Similarly, if the builder does not hand over the possession of the flat to the allottees within the agreed period, he shall be liable to pay an interest of 12% per annum for the delayed period except the circumstances which are beyond control.

9. That, all the flats with complete specification, as agreed and accepted will be constructed and completed in all respects by the builder within a period of three years and the possession will be handed over to the allottee members through society by builder within the period from the date of MOU with a grace period of two months. (emphasis supplied)

10. That, it has been mutually agreed and accepted that the builder will construct 200 dwelling units for the members of the society at one place / tower………..”

12. ..................Final list of members will be handed over to the builder within the time of 3 months from the date of MoU or earlier ………

15. ..................Any change or modification in plans shall be mutually agreed between the parties subject to the cost payable by the allottee members for their allotted units. The carpet area covered area and super area of the flats shall be strictly in accordance with the Government policies.” (emphasis supplied)

16. ..................The possession of the flat shall be handed over to the allottee complete in all respect within three years from the date of booking of the flat..................”

2. The complainant, its members who booked apartments in the above referred project and the opposite party then executed individual flat buyers’ agreement (FBA). Some of the terms of the FBA read as under:

“D. and whereas the developer has specifically made it clear th