State Consumer Disputes Redressal Commission
Improvement Trust Gurdaspur vs Yogesh Kohli on 13 May, 2011
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No.845 of 2006
Date of institution: 21.06.2006
Date of decision : 13.05.2011
1. Improvement Trust, Gurdaspur through its Chairman.
2. Executive Officer, Improvement Trust, Gurdaspur.
.....Appellants
Versus
Yogesh Kohli son of Shri Narinder Kohli resident of R.P. Hospital, Tibri Road,
Gurdaspur, Tehsil and Distt. Gurdaspur.
.....Respondent
First Appeal against the order dated 10.05.2006
passed by the District Consumer Disputes
Redressal Forum, Gurdaspur.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mrs.Amarpreet Sharma, Member
Mr.Baldev Singh Sekhon, Member Present:-
For the appellants : Sh.H.S.Bakshi, Advocate For the respondent : Sh.Munish Goel, Advocate JUSTICE S.N.AGGARWAL, PRESIDENT This order will dispose of the following 6 appeals : -
1. First Appeal No.845 of 2006 (Improvement Trust, Gurdaspr and another v. Yogesh Kohli)
2. First Appeal No.839 of 2006 (Yogesh Kohli v. Improvement Trust, Gurdaspur and another)
3. First Appeal No.840 of 2006 (Sewa Singh Virdi v.
Improvement Trust Gurdaspur and another)
4. First Appeal No.843 of 2006 (Improvement Trust, Gurdaspur and another v. Sewa Singh Virdi)
5. First Appeal No.844 of 2006 (Improvement Trust, Gurdaspur and another v. Amarjeet Singh Bajwa) First Appeal No.845 of 2006 2
6. First Appeal No.842 of 2006 (Improvement Trust, Gurdaspur and another v. Ram Chand) The questions of law and facts involved in all these appeals are identical. The facts are taken from First Appeal No.845 of 2006 and the parties would be referred by their status in this appeal.
2. The version of the respondent was that the appellants had published an advertisement in the leading newspapers regarding allotment of duplex/MIG flats in Scheme No.5, Jail Road, Gurdaspur. The last date for submission of the application in the prescribed form was 31.10.2000. The form was available for Rs.100/-. Rs.10,000/- were the earnest money. The tentative price of the duplex/MIG flat was Rs.8 lacs.
3. It was further pleaded that the appellants had demanded another amount of Rs.70,000/- vide letter dated 11.12.2000 as earnest money. This amount was deposited by the respondent on 20.12.2000. The appellants informed the respondent vide their letter dated 26.2.2001 that the draw of lots would be held on 28.2.2001 at 3.00 p.m. and all the applicants were invited to join the occasion. The draw of lots was held on 28.2.2001. The respondent was successful. Flat No.38 was allotted to the respondent by the appellants vide allotment letter dated 9.4.2001. The payment schedule was also specified in the allotment letter. It was contrary to the Government instructions dated 21.9.1999. The extra amount as cess @ 2% and incidental charges of Rs.555/- were demanded from the respondent illegally.
4. The respondent deposited a sum of Rs.1,36,555/- vide cheque dated 7.5.2001 on 9.5.2001. The next instalment of Rs.1,20,000/- was to be deposited on 18.3.2002.
5. It was further pleaded that the appellants had yet not started the construction of the duplex flats. Therefore, all the allottees made a joint representation on 11.9.2001 to the appellants for starting the construction work but the appellants failed to do so. Rather they continued demanding the amount of First Appeal No.845 of 2006 3 instalments. The respondent made the payment of Rs.1,20,000/- on 18.3.2002, Rs.1,30,761/- on 11.6.2002, Rs.1,22,186/- on 14.11.2002, Rs.1,22,440/- on 20.5.2003 and Rs.1,20,600/- on 3.10.2003. In all the respondent had made the payment of Rs.8,32,542/- to the appellants. The respondent had also made several representations to the appellants for starting the construction. The respondent was a doctor by profession. He was to shift to that duplex flat as he had the patient population in that area and he was suffering the loss of about Rs.1 lac per year due to non construction of the duplex flat by the appellants.
6. It was further pleaded that not only the construction was delayed by the appellants but even the roads, boundary wall, sewerage, water supply, side gates and park etc. were not constructed. The quality of construction was also inferior and it was unsafe to reside in those flats.
7. It was further pleaded that the costs of construction went up because of delayed construction started by the appellants. The appellants demanded another amount of Rs.1.5 lacs as the cost of construction had gone up. The delay in construction was due to the negligence of the appellants themselves. The appellants also refused to deliver possession until the payment of Rs.1.5 lacs by the respondent. Hence, the complaint seeking direction against the appellants for delivering fully furnished duplex flats to the respondent without any further delay and Rs.1 lac was claimed as compensation for mental harassment. It was also prayed that demand of Rs.1.5 lacs may be withdrawn and the interest on the deposited amount was also claimed. In the alternative, the refund of Rs.8,32,542/- was prayed with interest @ 24% p.a.
8. The appellants filed the written reply. It was pleaded that the appellants had published the demand-cum-survey for Duplex/MIG flats in Scheme No.5 to invite applications. It was a self-financing scheme. It was admitted that the last date was 31.10.2000; the form was available for Rs.100/- and Rs.10,000/- were sought along with the application. It was denied if the demand of Rs.70,000/- vide letter dated 11.12.2000 was illegal or if it was in violation of the First Appeal No.845 of 2006 4 advertisement. This amount was demanded in accordance with Clause 3 of the advertisement published in Amar Ujala dated 17.10.2000.
9. It was admitted that the draw of lots was held on 28.2.2001 at 3.00 p.m. and duplex flat No.38 was allotted to the respondent vide allotment letter dated 9.4.2001. It was pleaded that the balance amount was payable in 5 half yearly instalments payable for the period from 19.9.2001 to 19.9.2003. It was denied if the declaration was made by the appellants that the possession of the flat would be delivered within one year from the date of allotment. It was in the knowledge of the respondent that the construction of the duplex flat was to take sometime and it could not be constructed overnight. The cost of the duplex flat was being recovered in easy instalments and that too without interest. The cess charges @ 2% and incidental charges of Rs.555/- were charged as per the Government orders/instructions. Everything was done with the consent of the allottees including the respondent.
10. It was admitted that the respondent had deposited a sum of Rs.1,36,555/- as demanded in the allotment letter but it was denied if the appellants had not issued the form of agreement of sale. Rather the respondent had delayed the execution of the agreement of sale in favour of the appellants. It was also pleaded that the respondent had committed default in depositing the first instalment on the due date and the instalments were not paid by him as per the schedule given in the allotment letter.
11. It was further pleaded that the constructed duplexes were ready for delivery of possession to the allottees on payment of fixed price and the construction was complete. It was admitted that the demand of Rs.1,50,000/- was made from each allottee. It was due to increase in the cost of construction which the appellants had to spend in constructing the duplex. The price of the flat to the tune of Rs.8 lacs was only tentative and provisional and because of the increase in the cost of construction, the demand of Rs.1.5 lacs from each allottee was fully justified. In all 79 duplexes were allotted. 28 allottees had deposited the increased First Appeal No.845 of 2006 5 price and many others were willing to deposit the same. The respondent was avoiding to make this payment on one pretext or the other.
12. It was also pleaded that if the respondent wanted refund of the deposited amount, the appellants were ready to do so along with bank rate of interest. It was denied if there was any deficiency in service on the part of the appellants. Dismissal of the complaint was prayed.
13. The respondent proved documents Ex.P1 to Ex.P97. He also filed the affidavit of his father Narinder Kohli as Ex.P98, affidavit of Manav Salhotra, Architect as Ex.P99, affidavit of Ranjit Singh, Photographer as Ex.P100, affidavit of Parshotam Sharma as Ex.P101 and his own affidavit Ex.P102. On the other hand, the appellants filed the affidavit of Sat Pal Singh, Assistant Trust Engineer of the appellants as Ex.RW1/A. The appellants also proved documents Ex.R1 to Ex.R18.
14. After considering the pleadings of the parties and the affidavits/documents produced on file by them, the learned District Forum accepted the complaint vide impugned order dated 10.5.2006 and passed the following operative order : -
"8. Hence, there being merit in the complaint, the same is hereby allowed and the opposite party is directed to deliver the fully furnished duplex flat to the complainant within three months from the date of receipt of copy of the order without demanding the amount of Rs.1,50,000/- from the complainant. It is, however, added that there is no bar to the opposite party to make recovery of any amount from the complainant even after delivery of possession if the opposite party proves that any amount has been spent over and above the tentative price due to enhancement of compensation of the land by any court/tribunal or First Appeal No.845 of 2006 6 due to increase in the price of material used for the construction of the duplex or for spending any extra amount for making the duplex according to the requirement of the complainant as most of the allottees are already residing there. Parties are left to bear their own costs."
15. Aggrieved against this order, the present appeal has been filed by the appellants. Reliance was placed on the judgment of the Hon'ble Supreme Court reported as "Chief Administrator PUDA and another v. Mrs.Shabnam Virk, 2006 (2) RCR (Civil), 275" It was prayed that the appeal be accepted and the impugned judgment dated 10.5.2006 be set aside.
16. The respondent also filed the appeal (First Appeal No.839 of 2006) The learned counsel for the respondent placed reliance on the judgments of the Hon'ble National Commission reported as "Kamal Sood v. DLF Universal Ltd., 2007 (2) CLT 440" , "Southern Investment Pvt. Ltd. v. M.Thomas Abraham and another, 2006(3) CLT 10", "Consumer Protectiion Council, Rourkela v. Rourkela Development Authority, 2004 (2) CLT 653", "Girdhari Mohanlal Gangani v. Sujay Sudhakar Urchil and others, 2001 (3) CLT 332" and "Ram Kishore Tiwari v. Ghaziabad Development Authority, 2005 (3) CLT 126". Reliance was also placed on the judgment of the Hon'ble U.T. State Consumer Disputes Redressal Commission, Chandigarh reported as "Punjab Urban Planning and Development Authority and another v. Harbhajan Singh, 2005 (3) CLT 171" and "Hans Raj Swan and others v. The Municipal Corporation, Chandigarh, 1999 (1) CPC 361". It was prayed that the appeal be accepted and the impugned judgment dated 10.5.2006 be modified and the appellant be awarded interest on the entire deposited amount of Rs.8,32,542/- with effect from 3.10.2003 upto the date of delivery of possession of the duplex flat @ 18% p.a. in addition to a sum of Rs.1 lac for mental harassment.
First Appeal No.843 of 2006 and First Appeal No.840 of 2006 First Appeal No.845 of 2006 7
17. The respondent, in this case, was allotted flat No.66 vide allotment letter dated 4.4.2001. He had made the payment of Rs.8,16,555/-. He had also challenged the demand of Rs.1,50,000/- and had filed the complaint seeking direction against the appellants to deliver him the fully furnished duplex flat without any further delay and pay interest @ 18% p.a. on the deposited amount. Rs.3 lacs were prayed as compensation for mental harassment besides the litigation expenses to the tune of Rs.5000/-. In the alternative, he had also prayed for the refund of Rs.8,16,555/- with interest @ 24% p.a. compensation and costs.
18. The case was contested by the appellants for the same reasons and the demand of Rs.1.5 lacs was justified by alleging that Rs.8 lacs were only the tentative price.
19. Parties produced affidavits/documents in support of their respective versions.
20. The learned District Forum accepted the complaint vide impugned judgment dated 10.5.2006 with identical relief.
21. This judgment was challenged by the appellants by filing First Appeal No.843 of 2006.
22. The respondent had also filed an appeal (First Appeal No.840 of 2006) and had claimed interest @ 18% p.a. on the deposited amount from 3.10.2003 upto the date of delivery.
First Appeal No.844 of 2006
23. Amarjit Singh respondent in this case was allotted duplex flat No.40 vide allotment letter dated 4.4.2001. He was to take loan from LIC Housing Finance Limited to pay the instalments but the appellants had delayed the execution of the tripartite agreement with the financier. The respondent had paid in all a sum of Rs.8,27,125/-. The respondent had also challenged the demand of Rs.1.50 lacs and had made the same prayer as was made by Yogesh Kohli respondent.
First Appeal No.845 of 2006 8
24. The case was contested by the appellants for the same reasons and the demand of Rs.1.5 lacs was justified by alleging that Rs.8 lacs were only the tentative price.
25. Parties produced affidavits/documents in support of their respective versions.
26. The learned District Forum accepted the complaint vide impugned judgment dated 10.5.2006 with identical reliefs.
27. Hence, this appeal by the appellants.
First Appeal No.842 of 2006
28. Ram Chand respondent in this case was allotted flat No.46 vide allotment letter dated 18.4.2001. He had made the payment of about Rs.10 lacs. He had also challenged the demand of Rs.1.5 lacs made by the appellants. The prayer was identical to the prayer made by Yogesh Kohli respondent in First Appeal No.845 of 2006. He had also prayed for interest @ 18% p.a. on the deposited amount from the date of deposit till the date of delivery of possession i.e. 24.8.2004. He had also claimed Rs.3 lacs as compensation for mental harassment and refund of Rs.1.5 lacs along with litigation expenses to the tune of Rs.5000/-.
29. The case was contested by the appellants for the same reasons and the demand of Rs.1.5 lacs was justified by alleging that Rs.8 lacs were only the tentative price.
30. Parties produced affidavits/documents in support of their respective versions.
31. The learned District Forum accepted the complaint vide impugned judgment dated 10.5.2006 with identical reliefs.
32. Hence, the appeal by the appellants.
33. Record has been perused. Submissions have been considered. First Appeal No.845 of 2006 First Appeal No.845 of 2006 9
34. The admitted facts are that the appellants had issued the public advertisement which was published in Amar Ujala on 17.10.2000 (Ex.R1). It was demand-cum-survey for duplex/MIG flats in Scheme No.5 of the appellants. The price of the form was Rs.100/- and the last date for submission of the applications for demand-cum-survey was 31.10.2000. It was specifically mentioned in Clause 3 of the advertisement that an amount of Rs.10,000/- should accompany the application which would be, subsequently, converted into the earnest money. It was specifically mentioned below that any other information could be obtained from the office of the appellants at Gurdaspur. Thereafter, the appellants had published an advertisement in the newspaper (Ex.R4) in which it was specifically mentioned that the applicants were to deposit another amount of Rs.70,000/- as the earnest money was Rs.80,000/-. Rs.10,000/- were already paid along with the application while Rs.70,000/- was payable by the applicant upto 20.12.2000. It is, therefore, totally a ridiculous plea of the respondent that originally the amount of Rs.10,000/- was the earnest money and the demand of Rs.70,000/- more as earnest money was either unjustified or if it was against the contents of the advertisement.
35. In the original advertisement (Ex.R1), it was very clear that the amount of Rs.10,000/- which was to be submitted along with the application was not to be the only amount of earnest money. Rather it was to be converted into the earnest money later on. Similarly, it was specified not only by the advertisement (Ex.R4) but even letters were sent to the applicants asking them for depositing a sum of Rs.70,000/- so as to complete 10% as earnest money of the total cost price of the duplex which tentatively was Rs.8 lacs. The respondent has also proved a copy of the letter dated 11.12.2000 as Ex.P65 by which the appellants had demanded the amount of Rs.70,000/- from the respondent. However, the respondent although he claims to be a doctor had totally misconceived if the demand of Rs.70,000/- vide letter dated 11.12.2000 was in violation of the advertisement. It is always the norm that atleast 10% of the plot price has to be deposited as earnest money and the respondent was no exception. If the First Appeal No.845 of 2006 10 respondent thought that Rs.70,000/- were being demanded from him in violation of the advertisement, it was open to him to seek refund of the amount of Rs.10,000/- and get cancelled his application for allotment of Duplex/MIG flat but it appears that the respondent was only against the demand of money while he was ready to be considered for allotment of a Duplex/MIG flat.
36. The respondent had pleaded that he had deposited the amount as per the allotment letter and in all, he had deposited the amount of Rs.8,32,542/-. The dates of deposit have also been pleaded by the respondent. The letter of allotment dated 9.4.2001 has been proved by the respondent as Ex.P96. It has also been proved by the appellants as Ex.R11. As per this letter, the tentative price of the duplex was Rs.8 lacs. 1/4th of the tentative cost of the duplex was Rs.2 lacs. 10% amounting to Rs.80,000/- was already paid by the respondent. The balance amount of Rs.1,20,000/- along with cess @ 2% amounting to Rs.16,000/- and the incidental charges to the tune of Rs.555/- (in all, a sum of Rs.1,36,555/-) were payable by the respondent within a period of 30 days from the date of allotment i.e. 9.4.2001. The respondent deposited this amount on the due date i.e. 8.5.2001 for which receipt dated 9.5.2001 was issued to him.
37. The version of the respondent that 2% cess amount and Rs.555/- as incidental charges have been illegally claimed by the appellants. It is totally misconceived. It was specifically mentioned in the allotment letter that 2% education cess and the amount of Rs.555/- as incidental charges were recoverable from the allottees under the Government instructions. Each rupee paid by the allottee to the appellants was to be accounted for and, therefore, the respondent if he was aggrieved against this demand, better would have refused to accept the allotment of this duplex flat.
38. The remaining amount of Rs.6 lacs was payable in 5 instalments of Rs.1,20,000/- each on 19.9.2001, 19.3.2002, 19.9.2002, 19.3.2003 and on 19.9.2003. The respondent failed to follow this schedule and failed to deposit the first instalment of Rs.1,20,000/- on the due date. The appellants issued him the First Appeal No.845 of 2006 11 reminders on 29.10.2001 (Ex.P75) that he had failed to make the payment of instalment which was payable on 19.9.2001. Even, then the respondent failed to make the payment. Then notice was sent to him on 3.1.2002 (Ex.P74). The respondent again failed to make the payment. Thereafter, another notice dated 29.1.2002 (Ex.P73) was sent to the respondent to deposit the instalment. Even then he failed to make the payment. The first instalment of Rs.1,20,000/- was deposited by the respondent only on 18.3.2002. It means, therefore, that the first instalment was deposited by the respondent with delay of about 6 months and after the receipt of three reminders.
39. The second instalment was payable on 19.3.2002. This was also not deposited by the respondent in time.
40. The respondent again failed to make the payment of 3rd instalment of Rs.1,20,000/- on the due date on 19.9.2002. The appellants again issued notices to him on 11.10.2002 (Ex.P78 and Ex.R3) and 12.11.2002 (Ex.P79 & Ex.R14).
41. The respondent again failed to make the payment of 4th instalment on due date which was payable on 19.3.2003 for which the appellants had issued notice dated 25.4.2003 to the respondent (Ex.P80 and Ex.R15). It is, therefore, clearly proved that the respondent himself had failed to make the payment on the stipulated dates and he himself was at fault. The receipts placed on the file by the respondent from Ex.P58 to Ex.P62 reveal that the instalments were not deposited in time by him.
42. The appellants are the public body. They are selling the duplex/flats almost on 'No Profit No Loss' basis. They work for the welfare of the people and if the allottees failed to make the payment, they have no right to expect that the construction would go on smoothly. The respondent and other allottees themselves should look into their own conduct for not adhering to the schedule of payment before alleging deficiency in service on the part of the public bodies like the appellants who are dependent on the payment to be received from the allottees to carry out the work.
First Appeal No.845 of 2006 12
43. So far as the transparency of the appellants is concerned, it is clearly proved from the fact that in the letter dated 29.10.2001 (Ex.P75) when the appellants reminded the respondent that he had failed to make the payment of first instalment on the due date on 19.9.2001, it was told to him that the construction of the duplex flats has started and the construction shall be carried out by the Construction Company as the payment was received. Therefore, the respondent was informed to make the payment of first instalment within 15 days. He was also told that this letter be considered as urgent and if he failed to make the payment within 15 days, then necessary action would be taken in accordance with the rules but the respondent had not bothered for it. Then the appellants sent letter dated 3.1.2002 (Ex.P74). While reminding the respondent to make the payment of the first instalment which was due on 19.9.2001, he was also told that as per para 2 of the allotment letter, the allottee was to execute the agreement in favour of the appellants for the duplex flat but the respondent had failed to execute the agreement. He was again reminded to deposit the amount of first instalment within 15 days and to obtain copy of the agreement from the office and to execute the agreement. He was also told that if the respondent failed to do so, necessary action would be taken in accordance with rules but even then the respondent did not bother either to make the payment or to obtain copy of the agreement from the office of the appellants and to execute the same in favour of the appellants. The appellants again sent notice dated 29.1.2002 (Ex.P73) in which again the said directions were repeated.
44. The respondent has pleaded in para 6 of the complaint that the form of agreement of sale was not given to him and, therefore, the appellants were at fault. The appellants had clearly told the respondent in their letter dated 3.1.2002 (Ex.P75) to collect the form of agreement of sale from their office and to execute the same which was to be executed within a period of 30 days from the date of allotment letter i.e. 9.4.2001. Even when the respondent himself failed to collect the form of agreement of sale from the office of the appellants, he has the temerity First Appeal No.845 of 2006 13 to put the blame on the appellants. The respondent was to go by the terms and conditions of the allotment letter. He was not to devise his own ways to get the flat from the appellants and still claim compensation/interest from them instead of making the payment himself as per terms and conditions of allotment letter. Therefore, the delay in executing the agreement of sale by the respondent in favour of the appellants was clearly on the part of the respondent. The agreement was executed by the respondent in favour of the appellants only on 22.2.2002 (Ex.P68).
45. The respondent had pleaded in para 7 of the complaint that the appellants had yet not started the construction and the allottees had sent a joint representation dated 11.9.2001 (Ex.P86) asking the appellants to start construction. But the appellants clearly informed the respondent vide their letter dated 29.10.2001 (Ex.P75) while demanding the payment of first instalment due on 19.9.2001 that the construction has already started. He was also told that the construction company shall carry out the construction on receipt basis. Therefore, it was for the respondent to go at the spot and to find out if the averments made by the appellants in the letter dated 29.10.2001 (Ex.P75) that the construction had already started was correct or not and to, thereafter, send the letter to the appellants that the averments made in the letter dated 29.10.2001 was false if it was so.
46. On the other hand, the respondent in para 9 of the complaint has alleged that he had made representations dated 9.1.2002 and 12.2.2002 but in vain. Letter dated 9.1.2002 (Ex.P87) only reveals that the overhead electric wires were crossing over flat No.38 and had requested the appellants to remove those overhead electric wires as without it, construction cannot be made. He has not pleaded in that letter that the construction of flats by the appellants in fact was not started. Rather he took the plea that the respondent has been asked to deposit the first instalment but he should be asked to do so only after the electric wires were removed from overhead the flat. The respondent had alleged that the electric wire First Appeal No.845 of 2006 14 was crossing overhead flat No.38 but it does not mean that only flat no.38 was to be constructed as the appellants have pleaded that in all 79 flats were to be constructed. It, therefore, does not prove if the appellants had not started the construction as was stated by the appellants in the letter dated 29.10.2000 (Ex.P75).
47. It means, therefore, that the respondent was placing certain conditions on the appellants for making payment of first instalment by him to the appellants. The passing of electric wires was clearly known to him. Rather the appellants had taken the plea that the construction could not be completed expeditiously as the electric wires were to be got removed. The respondent had no right to modify the terms and conditions of the allotment letter dated 9.4.2001 of his own. He had no right to make it condition that he will make the payment of first instalment only when a particular act was done by the appellants. It was totally a misconduct on his part and it was his failure to perform his duties. The respondent was totally misconceived about his duties.
48. Rather the appellants had sent letter dated 24.1.2003 (Ex.P81) to the respondent that the construction of the duplex flat was going on and it was dependent on the payment of instalments by the allottees. He was also asked to reach the spot on 30.1.2003 so that the matter is discussed by the Administrator with him for improvement in the construction. This clearly reveals the bonafide transparency on the part of the appellants which has been taken by the respondent as a weakness of the appellants.
49. The respondent has pleaded in para 4 of the complaint that the appellants had declared at the spot that possession would be delivered to the allottees within one year of the date of allotment. The letter of allotment dated 9.4.2001 (Ex.P96) has been seen. It is nowhere mentioned in it that the possession of the flat would be given within one year. The respondent has made out this version of his own as he wants to allege some deficiency on the part of the appellants.
First Appeal No.845 of 2006 15
50. It is clearly mentioned in the stamped document (Ex.P67 and Ex.R12) which is duly signed by the respondent himself that if during the construction, the costs of construction of the flat goes up or if the amount of compensation was enhanced, then the enhanced amount was recoverable from the allottee. The respondent had also given an undertaking that he would be bound by the terms and conditions of the allotment letter dated 9.4.2001 and condition No.8 of the allotment letter dated 9.4.2001 (Ex.P96) specifically says that if the costs of construction goes up, the allottee himself undertaken to make the payment of enhanced costs. There is no such provision that the enhanced costs cannot be demanded during the construction or if it can be demanded only after the construction has already been completed.
51. Moreover, it has been held by the Hon'ble Supreme Court in the judgment reported as Mrs.Shabnam Virk's case (supra) that where the alottee has given a written undertaking to pay higher price due to increase in prices of building material, they have no right to challenge the demand of extra amount from them.
52. It is very sad that now the respondent has alleged that the fault lay with the appellants for causing delay in completing the construction. When he himself had undertaken to make the payment of the increased costs of construction, he could not be allowed to go against his own undertaking.
53. Moreover, the prices of the flat/duplex to the tune of Rs.8 lacs was only tentative and the appellants have duly explained while demanding the amount of Rs.1,50,000/- vide their letter dated 22.12.2003 (Ex.P89) that the costs of construction has gone up and the appellants had decided that the amount of Rs.1.5 lacs would be demanded over and above the tentative price from the allottees. The appellants have also proved a copy of the resolution dated 12.6.2003 (Ex.R7) in which it was stated that earlier it was thought that the total costs of the construction of the duplex flats was Rs.4.54 crores. It may be that some official of the appellants was also responsible for causing some delay in the completion of First Appeal No.845 of 2006 16 construction but it does not absolve the respondent in making the payment of enhanced costs particularly when it is proved that he had failed to make the payment of instalments on due dates on one excuse or the other.
54. The agreement was executed by the appellants with the Contractor on 12.9.2001 and the work was started on 28.9.2001. The construction was to be completed by the Contractor upto 28.9.2002 but since there were overhead electric wires over some of the flats, therefore, the work could not be completed upto 28.9.2002 and the time was extended upto 31.12.2002. The costs of construction had gone up and the revised estimates were considered as Rs.5.6 crores and, therefore, it was decided to demand the excess amount from the allottees. The appellants have also proved the proceedings of the meetings held on 7.8.2003 as Ex.R8 and of 13.8.2003 Ex.R9. The final proceedings dated 30.10.2002 have also been placed on the file as Ex.R10 by which it was decided that each allottee be asked to pay an additional amount of Rs.1.5 lacs. All these proceedings clearly reveal that the demand of Rs.1.5 lacs was not arbitrarily demanded from the allottees. It was duly considered by the appellants in various meetings and the demand was, accordingly, raised.
55. Moreover, when it was specifically brought to the notice of the allottees or for that matter to the respondent that the construction was dependent on the amount being received from the allottees, therefore, the allottees or for that matter, the respondent himself was responsible for causing delay in completing the construction because he himself had failed to make the payment of instalments in time. Therefore, the demand of Rs.1.5 lacs from each allottee was duly considered and was justified. It was legal and valid.
56. So far as delay in delivery of possession is concerned, to raise construction was not one man job. The appellants were a public body working for the welfare of the people at large.
First Appeal No.845 of 2006 17
57. Moreover, it has already been held that there was no specific date by which the possession was to be delivered. No such date is given either in the letter of allotment or in the agreement of sale. The respondent has alleged that it was announced at the time of draw of lots that the possession would be delivered within a year but this is only an oral version unsupported by any documentary evidence. Therefore, it cannot be held if any specific date was given by the appellants for delivering the possession.
58. If the matter is to be examined from the angle of a private builder there may be not much delay as all the decisions were to be taken at his level but if the functioning of the Government Departments is considered, then the whole period of delay stands explained by detailed procedure which is required to be followed by the public bodies like the appellants and the formalities are required to be completed. They acquire a particular piece of land and then the plots are demarcated, draw of lots is held and the plots are allotted. It is always a matter of chance that the acquisition of that area is disputed by land owner or the other. They have to take decision by passing resolutions and by taking some procedural steps.
59. For construction work, they were to invite tenders and comparative chart was to be prepared. So many other departments were also involved who were to provide electricity or water supply or sewerage and who were to construct the roads. The coordination of all these departments was also required. It obviously, therefore, takes sometime. If the appellants had gone in hot haste, there could have some irregularity in raising the construction or in not following the procedure. That was open to be challenged on the judicial scrutiny and, therefore, the officials of the appellants were to proceed very cautiously and consciously.
60. There is no evidence to show if the appellants have committed any intentional delay. Nothing has come on the file to prove if the delay was motivated or if the delay was intended to deceive or cheat the respondent or if any officials of the appellants were inimical to the respondent. It was only a First Appeal No.845 of 2006 18 procedural delay which normally takes place in all Government offices or in the office of the Government Department/Public Bodies.
61. In this context, reference can be made to the judgment of the Hon'ble Supreme Court reported as "Haryana Urban Development Authority v. Raje Ram" 2009 CTJ 503 (Supreme Court) (CP). In Raje Ram's case (supra), the complainants were the transferees. They had claimed compensation/interest on the amounts deposited. The District Forum had granted the interest to the transferees for the delay in delivery of possession. The said order was upheld by the Hon'ble State Commission except that the rate of interest awarded was reduced. The Hon'ble National Commission had restored the rate of interest awarded by the District Forum. However, HUDA had gone in appeal before the Hon'ble Supreme Court. The Hon'ble Supreme Court was pleased to set aside all the orders passed by the Consumer Fora in favour of the allottee/transferee by observing as under : -
"6. The decision of National Commission in Darsh Kumar, followed in the impugned orders, did not find favour of this Court in HUDA vs. Darsh Kumar, 2005 (9) SCC 449. This Court observed that where possession is given at the old rate, the party has got the benefit of escalation in price of land, and therefore, there cannot and should not be award of interest on the amounts paid by the allottee on the ground of delay in allotment. On the special facts of that case, this Court however awarded compensation for harassment/mental agony.
7. Respondents in the three appeals are not the original allottees. They are re-allottees to whom re-
allotment was made by the appellant in the years 1994, 1997 and 1996 respectively. They were aware, when the plots were re-allotted to them, that there was delay First Appeal No.845 of 2006 19 (either in forming the layout itself or delay in delivering the allotted plot on account of enforcement, etc.). In spite of it, they took re-allotment. Their cases cannot be compared to cases of original allottees who were made to wait for a decade or more for delivery and thus put to mental agony and harassment. They were aware that time for performance was not stipulated as the essence of the contract and the original allottees had accepted the delay. The appellant offered possession to respondents (re-allottees) and they took possession of the respective plots on 27.6.2002, 21.3.2000, and 13.9.1999 respectively. They approached the District Forum in 1997, within a short period from the dates of re-allotment in their favour.
They had not paid the full price when they approached the District Forum. In the circumstances, having regard to the principles laid down by this Court in Ghaziabad Development Authority vs. Balbir Singh, 2004(5) SCC 65, Darsh Kumar (supra) and Bangalore Development Authority vs. Syndicate Bank, 2007 (6) SCC 711, we are of the view that the award of interest was neither warranted nor justified.
8. We accordingly allow these appeals and set aside the impugned orders of the District Forum, State Commission and National Commission awarding interest. The complaints stand dismissed."
62. The respondent had failed to deposit the demanded amount of Rs.1.5 lacs inspite of the fact that a number of reminders were sent to him for example on 22.12.2003 Ex.R16 and on 4.3.2004 Ex.R17. The appellants had again issued First Appeal No.845 of 2006 20 reminder to the respondent on 28.4.2004 (Ex.P91) that the amount of Rs.1.5 lacs be deposited before 30.7.2004.
63. He was also informed vide letter dated 23.6.2004 Ex.R18 that the construction of the flat has been completed and he was again asked to deposit the amount of Rs.1.5 lacs so that the possession of the flat could be delivered to him. He was also asked to come and take possession of the duplex flat. He was also informed that if the respondent failed to take possession by 30.7.2004, it would be deemed that the possession has already been delivered to him. The respondent inspite of these letters, failed to do anything. The respondent rather wrote letter dated 3.9.2004 (Ex.P93) to the appellants that the roads were not completed and he asked the appellants to open the lock so that he may get the water and sewerage connection. Rather he dragged the appellants to litigation.
64. The learned counsel for the respondent pointed out that there are certain defects in the flat. For that purpose, reference was made to the Local Inspection Report dated 8.1.2005 (Ex.P1) and to certain news items got published by the respondent and other allottees. If the respondent wanted a fully furnished flat without depositing the amount on due dates and the amount of enhanced expenditure, then the demand of the respondent is totally illegal and unjustified. The respondent himself was responsible for causing delay in the completion of the duplex flat.
65. The appellants also asked the respondent vide letter dated 23.8.2004 (Ex.P94) to take the water supply and sewerage connection within 15 days. The appellants had also sent letter dated 27.12.2004 (Ex.P82) to the respondent to attend the meeting fixed for 30.12.2004 at 11.30 a.m. at the spot where the duplex flats were being constructed and to point out the defects, if any, but the respondent has nowhere pleaded if he went at the spot or if he attended the meeting.
66. On the one hand, the respondent alleges that he wanted to live on the jail road as a large number of patients of the respondent came from that side. On the other hand, he is neither making payment of instalments on due dates nor the First Appeal No.845 of 2006 21 payment of the additional enhanced price nor he was willing to take possession by posing certain terms and conditions.
67. So far as the judgments relied upon by the learned counsel for the respondent, these need not be discussed in view of the judgment of the Hon'ble Supreme in Mrs.Shabnam Virk's case (supra)
68. In view of the facts stated above, this appeal is accepted and the impugned judgment dated 10.5.2006 is set aside with costs of Rs.10,000/-. The appellants would be at liberty to recover this amount in accordance with law. First Appeal No.839 of 2006
69. In view of the reasons recorded above, this appeal is dismissed with costs of Rs.10,000/-.
First Appeal No.840 of 2006
70. In view of the reasons recorded above, this appeal is also dismissed with costs of Rs.10,000/-.
First Appeal No.843 of 2006
71. In view of the reasons recorded above, this appeal is accepted and the impugned judgment dated 10.5.2006 is set aside with costs of Rs.10,000/-. The appellants would be at liberty to recover this amount in accordance with law. First Appeal No.844 of 2006
72. In view of the reasons recorded above, this appeal is accepted and the impugned judgment dated 10.5.2006 is set aside with costs of Rs.10,000/-. The appellants would be at liberty to recover this amount in accordance with law. First Appeal No.842 of 2006
73. In view of the reasons recorded above, this appeal is accepted and the impugned judgment dated 10.5.2006 is set aside with costs of Rs.10,000/-. The appellants would be at liberty to recover this amount in accordance with law.
74. The arguments in all these 6 appeals were heard on 29.04.2011 and the order was reserved. Now the order be communicated to the parties. First Appeal No.845 of 2006 22
75. The appeals could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL) PRESIDENT (AMARPREET SHARMA) MEMBER (BALDEV SINGH SEKHON) MEMBER May 13, 2011.
Paritosh