National Consumer Disputes Redressal
Vimlesh Sharma & Anr. vs Cosmos Builders And Promoters Limited on 10 April, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2699 OF 2015 (Against the Order dated 13/05/2015 in Appeal No. 268/2014 of the State Commission Haryana) 1. VIMLESH SHARMA & ANR. S/O SH R M SHARMA, R/O H.NO. 424-C, 2ND FLOOR, ANSAL'S PALAM VIHAR, GURGAON-122017 HARYANA 2. RICHA SHARMA W/O VIMLESH SHARMA R/O H.NO. 424-C, 2ND FLOOR, ANSAL'S PALAM VIHAR, GURGAON-122017 HARYANA ...........Petitioner(s) Versus 1. COSMOS BUILDERS AND PROMOTERS LIMITED THROUGH ITS MANAGING DIRECTOR 4, BATTERY LANE, RAJPUR ROAD, CIVIL LINES, NEW DELHI-110054 ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Subrat Deb, Advocate For the Respondent : Mr. Vikas Tomar, Advocate
Dated : 10 Apr 2018 ORDER
This revision petition has been filed by the petitioners against the order dated 13.05.2015 of the State Consumer Disputes Redressal Commission, Haryana, (in short 'the State Commission') passed in First Appeal No.268 of 2014.
2. Brief facts of the case are that the petitioners/complainants booked flat with Respondent/ Opposite party and an agreement was executed in between them on 27.02.2006. Triparite agreement was executed on 04.03.2006 amongst them and the third party. They deposited Rs.2,73,200/- at the time of the booking and Rs.23,09000/- vide cheque dated 11.03.2006. As per agreement the possession was to be delivered within 24 months from the date of signing of agreement after completing the provision of all the amenities including road, parks etc. As per letter dated 07.12.2007 opposite party admitted delay in starting the project. Vide letter dated 30.09.2008 opposite party demanded Rs.1,63,000/- without giving possession of the flat. The petitioners again requested through letter dated 02.05.2011 to handover possession. On 02.08.2011 opposite party issued letter for offer of possession and asked to deposit Rs.3,25,800/- which were deposited by them on 11.08.2011. When they visited site on 17.10.2011 it was found by them that the flat was not complete and there were following short comings:-
"There was door installed inside the flat connecting from the said flat to EWS/adjacent flat (There should have been a wall there), the electric MCB Board was open/not installed properly, electrical fittings were falling apart/not working, there was seepage in drawing room, the wood work, glass work and sanitary work was incomplete, the electrical fittings in the kitchen was open and not working. The other switches in the bedroom next to kitchen were also not working, the attached bathroom was not having glasses in the windows and sanitary fittings were incomplete. The wooden cup board was incomplete and the glass and finishing work was to be done. All these deficiencies were brought into the notice of opposite party vide letter dated 16.11.2011."
3. The above shortcomings were brought to notice of opposite party vide letter dated 16.11.2011. Instead of removing defects opposite party offered possession on 21.12.2011 and compelled to sign printed indemnity bond which was totally in opposite party's favour. Aggrieved by the acts of the opposite party, the petitioners filed a consumer complaint before the District Forum. Opposite party filed the reply admitting the execution of agreement on 27.02.2006 and tripartite agreement dated 04.03.2006. Deposit of amount and agreement to deliver possession within 24 months was also admitted. But, it was alleged that the possession could not be delivered in time due to injunction order dated 30.03.2009 passed by Hon'ble Punjab and Haryana High Court in CWP No.4970 of 2009. The possession was to be delivered after the grant of occupation certificate which was stayed by Hon'ble High Court. Ultimately the matter was decided on 08.04.2010 and occupation certificate was granted on 19.01.2011. Immediately thereafter, offer of possession was given to complainants, but, they did not come forward. Though complainants were liable to pay holding charges, but, the same was not paid. They forcibly took possession. There was no delay on it's part to deliver possession. It was also alleged that as per agreement executed in between them the jurisdiction was restricted to Delhi Courts, so Consumer Forum, Gurgaon was not having jurisdiction to try the complaint. Objections about accruing cause of action, concealing true facts etc. were also raised and it was requested to dismiss the complaint.
4. After hearing the parties, the District Forum vide its order dated 07.02.2014 allowed the complaint and directed the opposite party to pay compensation of Rs.1,70,500/- to the complainant for delay in delivery of possession along with Rs.30,000/- as compensation for harassment and mental agony as well as litigation cost of Rs.5,000/- . The opposite party was also liable to pay interest @9% p.a. from the date of filing of the complaint till realisation.
5. Aggrieved by the above order dated 07.02.2014of the District Forum, the complainants as well as opposite party preferred appeals before the State Commission bearing No.268 of 2014 and 1138 of 2014 respectively. The State Commission vide its order dated 13.05.2015 dismissed the appeal filed by the opposite party bearing No.1138 of 2014 on the ground of limitation and also dismissed the appeal No.268 of 2014 filed by the complainants on merits.
6. Against the order dated 13.05.2015 of the State Commission, the complainants/petitioners have preferred this revision petition.
7. Heard the learned counsel for the parties and perused the record. The learned counsel for the petitioners stated that there were many defects in the flat when the same was handed over to the complainants. Moreover, the possession itself was given after a long delay. As per the original agreement, possession was to be given in the year 2008. The possession has been given only in the year 2011 and that too with so many defects/shortcomings. Though the District Forum has given a compensation of Rs.1,70,500/- with an interest of 9% on the deposited amount for the period of delay. The opposite party has taken a plea that the delay has occurred due to litigation that was pending before the High Court, but for that case also only the opposite party was responsible. Moreover, no compensation has been given for the defects mentioned in the complaint, which was ultimately to be removed by spending money by the complainants. It was requested that the petitioners may be adequately compensated for the delay in possession as well as for the defects in the handed over flat.
8. On the other hand, learned counsel for the respondent/opposite party stated that the delay has been caused by the fact that the allottees had filed writ petition No.4970 of 2009 before the High Court and there was an stay order in getting the occupation certificate. As soon as stay was vacated and order was ultimately passed on 08.04.2010 and occupation certificate was granted on 19.01.2011. Then the offer of possession was issued. There was no deficiency on the part of the respondent/opposite party in the matter and the delay in possession was due to circumstances created by the allottees themselves. For delay in possession, the District Forum had awarded reasonable sum of Rs.1,70,500/- to the complainants. The opposite party had also filed appeal against the order of the District Forum, but the same has been dismissed on the ground of limitation. Thus, the order of the District Forum dated 07.02.2014 has become final against respondent/opposite party.
9. It was further argued by the learned counsel that both the fora below have not found any deficiency on the part of the opposite party in respect of alleged shortcomings in the flat mentioned by the complainant in the complaint. The scope under the revision petition is very limited and in respect of shortcomings in the flat, no order can be passed by this Commission against the facts established by both the fora below.
10. I have considered the arguments advanced by both the learned counsel for the parties and have examined the material on record.
11. I agree with the assertion of the learned counsel for the respondent that both the fora below have given concurrent finding in respect of the alleged shortcomings in the flat mentioned by the complainant in the complaint. Both the fora below have rejected any claim against these alleged shortcomings. The facts cannot be reassessed by this Commission in the light of decision of Hon'ble Supreme Court in the following case:-
(1) Mrs. Rubi (Chandra) Dutta vs. United India Insurance Company, 2011 (3) Scale 654, wherein the following has been observed:-
"Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora."
12. This Commission would not be entering into the reassessment of facts in regard to the shortcomings. Thus, I do not find any merit in the revision petition with respect to the decision of the fora below for not providing any compensation for the alleged shortcomings.
13. From the order of the District Forum, it is seen that the District Forum has awarded compensation on the basis of the penal charges as per the agreement for delay of 21 months in handing over of the possession. It seems that the District Forum has already not considered the delay occurred due to litigation in the High Court. This Commission in many judgments has observed that the penal charges mentioned in the agreement do not compensate the complainant adequately for delay in possession. This Commission has been awarding some interest on the deposited amount from the date of committed possession till actual possession. If the same is considered in the present case, without going into the details of calculation, if an amount of Rs.50,000/- is paid additionally to the complainant by the opposite party over and above the amount ordered by the District Forum and confirmed by the State Commission, the ends of justice would meet to a great extent.
14. Based on the basis of the above discussion, RP No.2699 of 2015 is partly allowed and the respondent/opposite party is directed to pay an additional sum of Rs.50,000/-(rupees fifty thousand only) to the complainant over and above the amount ordered to be paid to the complainant by the District Forum. Accordingly, the order dated 07.02.2014 of the District Forum and the order of the State Commissions stand modified. Rest of the order of District Forum in respect of compensation for mental agony and harassment and litigation cost remains unchanged. The order be complied within a period of 45 days, failing which, the complainant shall be at liberty to proceed against the opposite party under Sections 25 & 27 of the Consumer Protection Act, 1986.
...................... PREM NARAIN PRESIDING MEMBER