National Consumer Disputes Redressal
A.P. Raji Swagruha Corporation Ltd. & ... vs Baswa Jagadeeswara Rao on 24 February, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2369 OF 2013 (Against the Order dated 26/03/2013 in Appeal No. 203/2013 of the State Commission Andhra Pradesh) 1. A.P. RAJI SWAGRUHA CORPORATION LTD. & ANR. REP BY ITS MANAGING DIRECTOR, 1-2-386 BHARAT SCOUTS & GUIDERS, STATE SECRETARIAT COMPLEX, DOMALGUDA HYDERABAD A.P 2. THE GENERAL MANAGER. AMAMITRA PROJECTS, THE A.P RAJI SWAGURUHA CO LTD., SCO NO- 112 S.M PURAM VILLAGE, ETCHERLA MANDAL, SRIKAKULAM A.P ...........Petitioner(s) Versus 1. BASWA JAGADEESWARA RAO S/O LATE SUNDARSANA RAO, DEPUTY MANAGER,(ADVT) SAAKASHI NEWS DAILY, R/O 13-9-147/3 KAKI STREET, A.P ROAD, SRIKAKULAM A.P ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Abhijeet Sinha, Advocate For the Respondent : Ms. A.Subhashini, Advocate Dated : 24 Feb 2015 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER This revision is directed against the order of the State Commission dated 26.03.2013 whereby the State Commission dismissed the appeal preferred by the petitioner in liminie.
2. Briefly stated, the facts relevant for the disposal of the revision petition are that the respondent / complainant filed consumer complaint alleging that pursuant to an advertisement issued by the petitioner/ opposite party, complainant booked independent house in the construction project undertaken by the opposite party. He also entered into the Agreements of Sale on 09.7.2010. The case of the complainant is that although he had had parted with the substantial amount of money towards the consideration amount, the opposite party has failed to deliver possession of the house even after the expiry of stipulated period of delivery of possession which was 24 months. The complainant pleaded that he had raised funds for payment against consideration amount by obtaining housing loan for which he is paying huge EMIs and interest and also that he has been forced to stay in rented house for want of delivery of possession. Claiming the delay in delivery of possession to be deficiency in service, the complainant filed complaint.
3. The petitioner/ opposite party filed written version to the complaint preferred by the respondent. It was alleged that the opposite party is a public sector corporation. The construction project known as 'Anamitra Project' was conceived for providing low cost houses at no profit-no loss basis. The petitioner denied that it was agreed to deliver the possession of the house within 24 months. It was also alleged in the written statement that the project had got delayed because of financial constraints due to non payment of instalments by various other allottees and also because the project site is located in a hilly region and considerable time was consumed in removing the rocks and levelling the ground. It was alleged that opposite party has been making efforts to complete the project as early as possible and there is no deficiency in service on its part.
4. The District Forum on consideration of the pleadings and evidence produced, allowed the complaint and directed the petitioner/opposite party to complete the construction and hand over the possession of house as early as possible and in the meanwhile pay rent from 01.10.2012 till handing over of the house to the complainant It was further directed that if the construction is not completed and possession is not handed over to the complainant by the end of September 2013, the complainant shall get the rent @ Rs.4000/-. Besides this, compensation of Rs.5000/- was also awarded and the complaint was allowed with cost of Rs.3000/-.
5. Being aggrieved of the order of the District Forum, the opposite party preferred appeal against the above noted order. The said appeal was dismissed by the State Commission observing that the petitioner / opposite party has failed to complete the construction within the stipulated period of 24 months and, therefore, the impugned order of the District Forum cannot be faulted.
6. Learned Shri Abhijeet Sinha, Advocate for the petitioner has contended that the impugned order of the foras below are not sustainable because both the foras below have failed to appreciate that as per the Agreement of Sale executed between the parties, no time period for completion of construction and delivery of possession was stipulated and the time was not the essence of the contract. Learned counsel further contended that foras below have also failed to appreciate that the delay in construction has been caused because of the reason not within the control of the petitioner, namely, that several other allottees in the project had failed to pay the instalments against the consideration amount and also that the project is located at a hilly area. Therefore, some time was taken in removing the stones and levelling the field so that construction work could be undertaken.
7. Learned counsel for the respondent / complainant on the contrary has argued in support of the impugned order. She has contended that foras below have rightly relied upon the clause 13 Ex.A-2 to conclude that the construction work was to be completed within a stipulated period of 24 months and since the opposite party has failed to perform its part of contract, the foras below have rightly held the opposite party guilty of deficiency in service and their orders cannot be faulted.
7. We have considered the rival contentions and perused the record.
8. On perusal of the impugned order, we find that State Commission has observed that as per the terms of the agreement Ex.A-2 clause 13, a specific time period of 24 months for completion of construction and delivery of possession was agreed between the parties and, therefore, the order of the State Commission in Bangalore Development Authority Vs. Syndicate Bank 2007 (6) SCC 711 is not applicable to the facts and circumstances of the case in hand. Aforesaid observation of the State Commission is against the facts. Photocopies of Agreement of Sale between the parties duly signed by the respective complainants and the General Manager of the Opposite Party are on the record. We have gone through the said agreement wherein nowhere time period for completion of project is stipulated. Clause 13 of the Agreement of Sale states that it is sole responsibility of the vendee to update his contract information with the opposite party in writing and there is no whisper of the stipulated time period for completion of contract in this clause. Learned counsel for the respondent during the course of arguments contended that actually in clause 13 of the brochure, it was provided that the project will be completed within 24 months. Therefore, now the petitioner cannot get out of the aforesaid clause by taking shelter of the agreement. We do not find merit in this contention because after applying for the house, the complainant had entered into written Agreement of Sale with the petitioner/opposite party containing the terms and conditions agreed to between the parties. In the said agreement, there is no stipulation as to time frame for completing the construction. Instead in para 11, it is mentioned that parties to agreement agree and consent that the specifications etc. in the brochure are subject to change for the reason not within the control of the vendor. The case of the petitioner vendor is that the delay in the project was caused because the project is located at a hilly region and it consumed sufficient time to remove the rocks and levelling the ground and also because of financial constraints due to non payment of instalments by various other allottees. Thus, the opposite party cannot be held to be deficient in service only because the construction has not been completed within 24 months particularly when the time is not the essence of the contract. In our aforesaid view, we are supported by the judgment of the Apex Court in the matter of Bangalore Development Authority (supra). Thus, in our view the impugned orders are not sustainable.
9. We may note that although no time frame has been stipulated in the agreement, the petitioner opposite party is supposed to complete the project and deliver possession of house to the complainant within reasonable time. Undisputedly, the parties had entered into an agreement on 09.07.2010. Almost five years have gone by but project is not completed. In our view, the petitioner opposite party by no means can retain the consideration amount received from the respondent without performing its part of contract within a reasonable time. Therefore, while allowing the revision petition and setting aside the impugned orders, we direct the petitioner opposite party to complete the construction of house expeditiously and deliver the possession to the complainant within six months from today, failing which the petitioner/opposite party shall be liable to pay 18% interest on the amount deposited by complainant from the date of this order till the delivery of possession of house. Revision petition is disposed of accordingly.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER