State Consumer Disputes Redressal Commission
Sushma Grover & Ors vs Ansal Housing & Construction Ltd. on 15 May, 2006
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 15-05-2006 Appeal No. A-1065/2003 (Arising from the order dated 23-06-2003 passed by District Forum(New Delhi), K.G. Marg, New Delhi in Complaint Case No.OC/260/2001) Smt. Sushma Grover & Ors. Appellants Flat No.A-703, Neelpadam-I, In person. Vaishali, Ghaziabad. Versus (1)M/s ansal Housing & Construction Ltd. Respondent No.1. 15, Upper Ground Floor, Inder Prakash, Through 21, Barakhambha Road, Mr. Pankaj Kapoor, New Delhi-110001. AGM (Legal) (2) Sunrise Management & Estate (P) Ltd. Respondent No.2. 110, First Floor, Inder Prakash, 21, Barakhamba Road, New Delhi-110001. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Appellants filed the instant complaint before the District Forum u/s12 of the Consumer Protection Act seeking direction to the respondents to handover the possession of the flat as the respondents had received full consideration amount and also compensation for poor quality of brick work and plastering.
2. Vide impugned order dated 23-06-2003 the District Forum has dismissed the complaint by holding that the complainants were bound by the terms and conditions of the allotment letter dated 20-10-1992 and not to the terms and conditions of the brochure issued by the respondent at the time of advertisement in the newspaper.
3. Feeling aggrieved, the appellants have preferred this appeal.
4. There is no dispute that the respondent advertised a multi storeyed project known as Neelpadam I in the Vaishali area of District Ghaziabad for general public and shareholders. The main features of the project were also publicised in a brochure (Ex. C-1) giving general details of the project, eligibility criteria and facilities to be provided in the flats and complex etc. In the said brochure there was no mention of charging any additional amount due to escalation in prices or charging of any interest for late payments, rather it provided that the respondent will pay 8% interest on the application money till the date of draw of flats.
5. Pursuant to the said advertisement the appellant applied for one bed-room flat of approximate area of 790 sqm. She was provisionally allotted flat vide letter dated 01-03-1990. Originally the appellant was allotted a flat No. A-508 vide letter dated 09-03-1992 and subsequently it was changed to A-703 with the information that super area of the new flat was approximately 817 sqft. and total price payable was Rs. 3,47,225/- @ Rs. 425/- per sq. ft. So much so respondent also introduced a new clause namely escalation clause in clause 2 of the letter of allotment and demanded an additional sum of Rs. 1,07,112.75p. Inspite of having paid the full demanded amount as per the payment plan given in the brochure the appellant was denied the possession of the flat. So much so the respondent even sent a bill for Rs. 26,155/- in respect of municipal and other taxes without having handed over the possession.
6. While justifying his action of not handing over of possession of the flat and raising a demand under escalation clause as well as demand of municipal and other taxes the respondent mainly relied upon the allotment-cum-demand letter showing the details as to the payment towards electricity charges, fire fighting equipment, external development charges, escalating ground rent payable by the flat owners. According to the respondent the payment schedule was as per contractual terms agreed between the parties by way of allotment letter dated 20-10-1992.
7. As regards the allegation of unauthorisedly changing the original flat the respondent pleaded that due to change of plans flat number E-503 was renumbered as flat number A-703 which was closest to previous flat number D-503 without any loss or hardship to the appellant and the plans originally are tentative in nature at the time of booking and could be ascertained/finalised only after the same were approved by the appropriate authority.
8. The respondent also referred and relied upon letter dated 30-06-1997 sent to the appellant apprising the latter the escalation amount of Rs. 1,07,112.75 and was offered possession of the flat vide said letter after paying the legitimate cost. Again vide letter dated 19-11-1999 the appellant was informed and asked to liquidate the amount payable pertaining to electricity charges, fire fighting equipment, external development charges and escalating amount, rent and dues of instalment No.1. Admittedly the appellant deposited a sum of Rs. 19,161.50 as part payment which was duly credited in her account.
9. As is apparent from the aforesaid conspectus of facts the main grievance of the appellant was that the respondent should not have been changed original allotment and other terms and conditions mentioned in the brochure. In our view the allotment letter dated 30-10-1992 introduced several new charges which were not projected in the brochure. It was the terms and conditions in the brochure which were accepted by the complainant for the allotment of flat. Change of any term including escalation clause, charges for electricity, fire fighting equipment, external development charges etc. did not form part of the brochure. The terms contained in the brochure were unilaterally changed whereas terms and conditions of allotment as mentioned in the brochure were in the form of bilateral contract.
10. The view taken by the District Forum that the appellant was liable to adhere to the terms and conditions mentioned in the allotment letter dated 20-10-1992 and not to the terms and conditions of the brochure issued by the respondent as it was allotment letter which had a binding course of the contract between the parties whereas the brochure only laid details of the project and non-mentioning of escalation price etc. does not find favour with us.
11. Any person, engaged in the housing construction activity cannot be allowed to paint a rosy picture by giving salient features of the project in the advertisement and in the brochure and if later on the consumer is told, say after 2-3 years that he was also to pay escalation charges, fire fighting equipment etc. and municipal tax, electricity charges and that too without having been handed over the possession of the flat particularly when the consumer has not used the residence for a day it clearly amounts to an unfair trade practice.
These representations not only amount to false representations to first entrap a consumer by projecting different picture in the advertisement and brochure and when the consumer pays the amount of the actual cost projected by them in the brochure then the person engaged in the housing construction activities starts raising one demand after the other which were not in the knowledge of the consumer at the time of booking.
12. The counsel for the respondent stated before us that the allotment has been cancelled because of non-payment of the aforesaid demand raised in the letter dated 30-06-1997 followed by letter dated 19-11-1999. In our view the allotment was wrongly cancelled as the appellant was entitled for not only allotment and possession of the flat when he had paid the actual projected amount in the brochure i.e. Rs. 3,72,951.75 though initially the respondent had informed the appellant that the total price would be Rs. 3,47,225/-. May be that the enhanced price was in view of the increased area as the original area of the flat applied was 790 sqft whereas in the allotment letter the area was shown as 817 sqft.
13. Since no flat is available with the respondent for allotment to the appellant, the appellant needs to be compensated adequately for the wrongful action on the part of the respondent in cancelling the flat and indulging in unfair trade practice.
14. In the given facts and circumstances of the case we on the ground of equity, good conscious and justice compensate the appellant by way of awarding interest @ 12% on the amount of Rs. 3,72,951.75p from the date of last deposit made towards the consideration amount till the date of this order. We also award Rs.
5,000/- towards cost of litigation. The entire payment shall be made within one month.
15. Appeal is disposed of in aforesaid terms.
16. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
17. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
18. Announced on the 15th May, 2006.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj