National Consumer Disputes Redressal
M/S. Taneja Developers And ... vs Lakshay Bajaj on 31 May, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 643 OF 2019 (Against the Order dated 04/12/2018 in Appeal No. 180/2016 of the State Commission Delhi) 1. M/S. TANEJA DEVELOPERS AND INFRASTRUCTURE LTD 9, KASTURBA GANDHI MARG, NEW DELHI-110001 ...........Petitioner(s) Versus 1. LAKSHAY BAJAJ S/O. NARENDRA KUMAR BAJAJ, SECTOR 8, ROHINI DELHI-110085 ...........Respondent(s)
BEFORE: HON'BLE MR. DR. S.M. KANTIKAR,PRESIDING MEMBER HON'BLE MR. DINESH SINGH,MEMBER
For the Petitioner : Ms. Ashita Chhibber, Advocate For the Respondent : Mr. G. P. Singh, Advocate
Dated : 31 May 2019 ORDER
HON'BLE MR. DINESH SINGH, MEMBER
1. We heard the learned counsel for the revision petitioner - builder co. and the respondent - complainant, and perused the material on record.
2. On 11.04.2019, we had passed the following Order:
Dated: 11.04.2019
ORDER
Heard the learned counsel for the petitioner - builder co.
Perused the material on record.
We find both deficiency in service and unfair trade practice on the part of the petitioner - builder co.
The revision petition is dismissed.
The award made by the two fora below is affirmed.
In addition, specifically for unfair trade practice, a cost of Rs. 2 lakh is imposed on the petitioner - builder co., out of which Rs. 1 lakh shall be paid to the complainant and Rs. 1 lakh shall be deposited with the Consumer Legal Aid Account of the District Forum within four weeks of the pronouncement of the reasoned judgment.
Reasoned judgment to follow.
Execution proceedings shall remain stayed till the pronouncement of the reasoned judgment.
3. We are giving our reasons hereinafter.
4. The substantive issue in this case is that the complainant deposited an amount of Rs. 5,50,000/-, Rs. 2,75,000/-, Rs. 2,75,000/-, Rs. 2,75,000/- and Rs. 2,75,000/- (total Rs. 16,50,000/-) with the builder co. on 13.05.2006, 09.12.2006, 13.03.2007, 28.03.2008 and 29.06.2010 respectively (between 2006 to 2010) for the subject shop. The assured date of handing over possession of the subject shop was 12.05.2008. Possession was not handed over till the date of filing (07.04.2014) of the complaint before the District Forum. Inter alia one fundamental reason for not being able to execute the subject construction project and to hand over possession of the subject shop was inability to undertake construction for a protracted period on the land in question on cause of public interest litigation questioning allotment of land acquired for public purpose by the government to the builder co. and inter alia also questioning it as being against 'land use'. The District Forum vide its Order dated 24.11.2015 awarded refund of the amount deposited by the complainant with the builder co. (Rs. 16,50,182/-) along with interest (@ 9% p.a.). In appeal, the State Commission affirmed the award made by the District Forum.
5. The District Forum had heard both sides, appraised the evidence, and, vide its Order dated 24.11.2015, allowed the complaint, holding deficiency in service on the part of the builder co.:
ORDER
- - -
We have considered the material on record. - - -.
- - - The complainant has placed on record a decision of Punjab & Haryana High Court in a PIL, the Court questioned the action of Govt. to acquire land for public purpose and thereafter allotting it to 'private builders' and cancelled it a scam. PIL questioning allotment of land by Govt. to held that TDI built the structure against 'land use' provision of Pvt. Builders. This has resulted in OP to abandon further construction and contract can be taken 'frustrated' u/s 56 of Contract Act and thus void. The OP cannot retain money and is under obligation to return Rs. 16,50,182/- deposited in 2006, for a project promised in 2009. Now when 2016 is approaching things stand still at same stage.
The OP has not been able to show release of land in its favor for private housing purpose, as it was acquired for public purpose. The OP should have elaborated on this aspect.
On consideration of all material on record, we find a clear case of deficiency in service towards complaint. We hold OP guilty of deficiency in service and direct OP to pay / refund the amount of Rs.16,50,182/- along with interest @ 9% from date of deposit till payment.
The order shall be complied with within 30 days of the receipt of the copy of the order; otherwise action can be taken against OP under Section 25 / 27 of the Consumer Protection Act. - - -
(extract from the District Forum's Order) (emphasis supplied)
6. The builder co. appealed in the State Commission. The State Commission heard both sides, (again) appraised the evidence, and, vide its Order dated 04.12.2018, dismissed the appeal, concurring with the findings of the District Forum:
3. - - - The complainant had prayed for refund of Rs.16,50,000/- with interest @9% per annum, compensation of Rs. 2 lakhs on account of deficiency in service. The payments were made in 2006, 2007, 2008 and 2010.
11. The District Forum has not awarded any compensation as such. It has awarded interest @9% per annum which is quite fair and reasonable. There is no scope for further reducing the said rate.
12. More over the appellant has already deposited the entire amount in compliance of order dated 11.08.17 of National Commission. The same has been withdrawn by the respondent as per order dated 15.02.18 passed by this Commission. Now what remains due is interest amount only.
13. The appeal fails and is dismissed. Appellant is directed to pay the interest @9% per annum as awarded by District Forum, from the date of deposit till the date of filing FDR in this Commission.
(extract from the State Commission's Order) (emphasis supplied)
7. We have carefully perused the Orders of the two fora below, the Order dated 24.11.2015 of the District Forum and the Order dated 04.12.2018 of the State Commission. We find both Orders to be well-appraised and well-reasoned. The State Commission has concurred with the findings of the District Forum. Within the meaning and scope of section 21(b) of the Act 1986, we find no grave error in appreciating the evidence by the two fora below. We also find the award made by the District Forum (quoted in para 5 above), and as affirmed by the State Commission, to be just and equitable. [The amount deposited by the complainant with the builder co. has been ordered to be refunded to the complainant with interest @ 9% p.a. (and without any other compensation or cost)]. We find no jurisdictional error, or a legal principle ignored, or miscarriage of justice.
8. Deficiency in service within the meaning of section 2(1) (g) and 2(1)(o) of Act 1986 has been clearly determined against the builder co. by the two fora below. We do not find any reason on fact or law to interfere in revision with their concurrent findings.
9. We also note the following chronology:
Year of making first deposit of Rs.5,50,000/-2006
Years of making the total deposit of Rs.16,50,000/-
2006 to 2010 Assured date of handing over the subject shop 12.05.2008 Year of initiation of public interest litigation apropos allotment of land from the government to the builder co.2009
Year of filing complaint in the District Forum 2014 Year of Order of the District Forum 2015 Year of filing appeal in the State Commission 2016 Year of Order of the State Commission 2018 Year of filing revision petition in this Commission 2019
10. We note that the material facts relating to availability of land / litigation apropos allotment of land from the government to the builder co. were not brought, explicitly and upfront, to the notice of the complainant by the builder co. In the absence of the material facts (and the natural consequences thereof) being brought, explicitly and upfront, to his notice, the buyer - consumer would reasonably (and correctly) understand that all aspects of project planning, execution and completion, inclusive, specifically, of availability of land, are the responsibility of the builder co. and have been / are being / would be duly taken care of by the builder co., without cost or time overruns.
11. The builder co. was required and expected to have the due pragmatic and realistic assessment and preparation of the project planning, execution and completion. It was the prime responsibility of the builder co. to ensure that it was in a position to deliver the possession of subject shop to the buyer - consumer. Planning, execution and completion were its responsibility, and not of the consumer.
(Normal) impediments or problems that arise in planning, execution and completion were its responsibility, and not of the consumer.
Specifically, unfettered availability of land, being a fundamental basic requirement of a construction project, were decidedly the builder co.'s primary responsibility, and not of the consumer.
Cost or Time overruns were its responsibility, not of the consumer.
12. In respect of availability of land, the builder co. in its revision petition, has averred that:
3.7 In the year 2009, a number of petitions were filed in the Hon'ble High Court of Punjab & Haryana challenging the grant of license of development to various Developers, including M/s. TDI Infrastructure Ltd., whereby the Hon'ble High Court stayed all activities at the Township of TDI City which consequently stopped the construction of the Mall / Complex and its development work. - - -
3.8 It is submitted that once the stay order was vacated by the Hon'ble High Court, the Respondent was called upon to make good his payment towards his next instalment as per the schedule of payment vide letter dated 05.01.2010 issued by M/s. TDI Infrastructure Ltd. - - -
(sub-paras 3.7 and 3.8 of para 3 of the memo of petition) The District Forum vide its Order dated 24.11.2015 has been stringent and straight in its observations:
The complainant has placed on record a decision of Punjab & Haryana High Court in a PIL, the Court questioned the action of Govt. to acquire land for public purpose and thereafter allotting it to 'private builders' and cancelled it a scam. PIL questioning allotment of land by Govt. to held that TDI built the structure against 'land use' provision of Pvt. Builders. This has resulted in OP to abandon further construction and contract can be taken 'frustrated' u/s 56 of Contract Act and thus void. The OP cannot retain money and is under obligation to return Rs. 16,50,182/- deposited in 2006, for a project promised in 2009. Now when 2016 is approaching things stand still at same stage.
The OP has not been able to show release of land in its favor for private housing purpose, as it was acquired for public purpose. The OP should have elaborated on this aspect.
(extract from the District Forum's Order) (emphasis supplied)
13. Not bringing, explicitly and upfront, the material facts relating to availability of land / litigation apropos allotment of land by the government to the builder co. to the notice of the complainant, not being in a position to (lawfully) undertake construction on the land in question (for a protracted period), retaining the amount of Rs. 13,75,000/- deposited by the complainant prior to the assured date (12.05.2008) of handing over possession of the subject shop, taking further amount of Rs. 2,75,000/- subsequent to the assured date (12.05.2008) of handing over possession of the subject shop, retaining the total amount of Rs.16,50,000/- deposited by the complainant between 2006 to 2010 till the date of filing (07.04.2014) of the complaint by the complainant with the District Forum, while, in parallels, and in complete opacity qua the buyer - consumer, litigating before Hon'ble High Court apropos the allotment of the land in question to it, are deceptive and unfair acts on the part of the builder co. and constitute unfair trade practice within the meaning of section 2(1)(r) of the Act 1986.
14. To sum up, we find, both, deficiency in service within the meaning of section 2(1)(g) & (o), as determined by the State Commission and the District Forum in their concurrent findings, and unfair trade practice within the meaning of section 2(1)(r), as evident from the discussion in paras 9, 10, 11, 12 and 13 above, to be well and truly evident on the part of the builder co.
15. In remedy, it is just, equitable, appropriate and necessary to affirm and sustain the award made by the District Forum and the State Commission in respect of deficiency in service, and, in addition, specifically for unfair trade practice, to impose a cost of Rs. 2 lakh on the builder co., out of which Rs. 1 lakh shall be paid to the complainant and Rs. 1 lakh shall be deposited with the Consumer Legal Aid Account of the District Forum.
16. We may also note that once the amount awarded for deficiency in service and the cost imposed for unfair trade practice is adjudicated and determined, the onus is on the builder co. to be prompt and dutiful in making the necessary payments within the stipulated time. Creating yet further harassment, difficulty and helplessness for the ordinary simple consumer by delaying payments or making reduced payments etc. (if the adjudication is not stayed or quashed or modified by a higher authority / court) will be an unacceptable situation, to be viewed seriously - the harassment, difficulty and helplessness of the consumer should end promptly and fully, the chapter should close. Therefore, if the builder co. delays the adjudicated payments beyond the time stipulated, it would and should attract higher / penal interest and other compensation / costs, which will be determined by this Commission if the contingency so arises.
17. We firm-up our decision as below:
(i) The award apropos deficiency in service made by the two fora below is affirmed and sustained.
(ii) In addition, specifically for unfair trade practice, cost of Rs. 2 lakh is imposed on the builder co., out of which Rs. 1 lakh shall be paid to the complainant and Rs. 1 lakh shall be deposited with the Consumer Legal Aid Account of the District Forum.
(iii) All payments shall be made within four weeks of the date of pronouncement of this Order.
(iv) Failure in timely compliance shall attract higher / penal interest and other compensation / costs (which shall be determined by this Commission in the facts and specificities of that contingency if it so arises).
18. The revision petition, being patently misconceived and devoid of merit, is dismissed, with directions as contained in para 17.
19. Needless to add that the District Forum shall undertake execution as per the law.
20. A copy each of this Order be sent to the District Forum and to the complainant by the Registry within ten days.
...................... DR. S.M. KANTIKAR PRESIDING MEMBER ...................... DINESH SINGH MEMBER