National Consumer Disputes Redressal
Mr. Beatty Tony vs M/S. Prestige Estate Projects Pvt. Ltd. on 18 November, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3135 OF 2014 (From the order dated 05.02.2014 in Appeal No. 2119 of 2012 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore) WITH IA/5203/2014 (CONDONATON OF DELAY) Mr. Beatty Tony S/o K. A. Varghese R/o- Flat No. 18104, Prestige Shantiniketan, ITPL Road Whitefield, Bangalore- 560048 Petitioner Versus M/s. Prestige Estate Projects Pvt. Ltd. Falcon House No. 1, Main Guard Cross Road, Bangalore- 560001 Respondent BEFORE: HON'BLE MR. JUSTICE V. K. JAIN, PRESIDING MEMBER HONBLE DR. B. C. GUPTA, MEMBER For the Petitioner : Ms. Anita Abraham, Advocate For the Respondent : Mr. Robin David, Advocate Mr. Chitranshul Sinha, Advocate DATED: 18.11.2014 O R D E R JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL) I.A. No. 5203 OF 2014 Heard. For the reasons stated in the application and also considering that the petitioner is the complainant in the matter, the delay in filing the revision petition is condoned, subject to the complainant depositing Rs. 10,000/- as cost with the Consumer Legal Aid account of this Commission. REVISION PETITION NO. 3135 of 2014 2. The petitioner/complainant entered into an agreement with the opposite party no. 2 as the seller and the opposite party no. 1 as the builder for purchase of a residential flat in block no. 4, Prestige Shantiniketan, for a total consideration of Rs. 40,03,600/-. As per the agreement between the parties, the possession of the property was to be delivered and the transaction was to be completed within 39 months of 01.07.2005 i.e. by 01.10.2008. The agreement also granted a grace period of three months to the opposite parties. In the event of delay in handing over possession, the opposite parties were required to pay interest at the rate of 7% per annum to the complainant. 3. Vide letter dated 01.03.2007, the opposite party informed the complainant that the work at the site was delayed due to: (a) a sand suppliers strike that lasted for more than fifty days (b) flooding at site due to extraordinarily heavy rains in September, 2005 (c) acute ongoing shortage of skilled labour and (d) truck strike on 3 occasions since March, 2005 The complainant was informed that the opposite parties would be able to hand over the possession of the apartment to him only by December, 2008 and therefore, the handover date in the agreement may be read as 31.12.2008. On account of the delay on the part of the opposite parties, the payment of instalment no. 11 to 16 was also postponed in terms of the revised schedule contained in the letter dated 01.03.2007. The case of the complainant is that he made payment of instalment no. 11 to 15 within the time stipulated in the said letter, though payment of the 16th instalment was not made by 01.06.2008. The learned counsel for the complainant/petitioner submits that the complainant had also offered to pay the 16th instalment amounting to Rs. 1,10,000/-, but was asked by the opposite party to withhold the same till the date of possession. She further submits that the averment made in this regard in the complaint has not been controverted by the opposite party and therefore it is an admitted position. 4. Vide letter dated 29.08.2008, the opposite parties informed the petitioner that they would start handing over the possession of the apartments in a phased manner commencing from April-May, 2009. However no specific reason for the delay subject matter of the letter dated 29.08.2008 was given in the said letter. 5. Vide letter dated 20.04.2009, the opposite parties further postponed the handing over of possession and informed the complainant that the delivery of the apartments would commence by September, 2009 and a final statement of account would be sent to him shortly. 6. Vide letter dated 15.04.2010, sent in response to the letter of the complainant dated 01.03.2010, the complainant, sought to explain the delay in handing over the possession to him alongwith letter dated 15.04.2010. The opposite parties also sent statement of account of the complainant requiring him to make payment of Rs. 8,86,736/-. The possession was eventually offered to the complainant on 23.12.2011. The complainant made payment of Rs. 8,86,736/- to the opposite party on 24.12.2011 and took the possession of the apartment. 7. Being aggrieved from the delay in handing over the possession of the apartment to him, the complainant approached the concerned District Forum by way of a complaint, seeking the following reliefs:- a. Direct the Opposite Parties to jointly and severally pay a sum of Rs. 4,27,312/- (Rupees Four Lakhs Twenty Seven Thousand Three Hundred and Twelve only) to the Complainant on account for the penalty of 7% p.a. due and for the deficiency in services and mental agony, litigation expenses as detailed above, after deduction of the amount of Rs. 8,86,736/- due from the Complainant; b. Direct the Opposite Parties to complete all the construction, provide utilities such as BWSSB water, electricity supply, gas, complete construction of the club house and recreational facilities and register the Sale Deed in respect of the Schedule Property in favour of the Complainant and hand over possession of the Schedule Property to the Complainant; c. Direct the Opposite Parties to jointly and severally pay penalty @ 7% p.a. on the sale consideration paid by the Complainant from the date of the filing of this complaint till date of registering the sale deed and handing over the possession of the Schedule Property to the Complainant. 8. The complaint was resisted by the opposite parties, inter-alia, on the ground that there was delay by statutory authorities in granting sanction, permission etc. and the agreement contained a force majeure clause. It was also stated in the reply that delay in handing over the possession occurred due to several factors such as delay in getting the approvals from the Ministry of Environment and Forest, delay in starting of work due to truck strike, sand suppliers strike, shortage of skilled labourers, heavy rains etc. It was also stated in the reply that the complainant was in arrears to the extent of Rs. 8,86,736/- and he had failed to take possession of the apartment by paying the balance sale consideration. It was further stated that at best, the complainant could claim interest at the rate of 7% per annum on the amount paid by him. The District Forum, vide its order dated 21.07.2012, directed the opposite party to pay interest at the rate of 7% per annum on the amount of Rs. 37,93,421/- for a period of 32 months, amounting to a sum of Rs. 7,08,105/- and cost of litigation amounting to Rs. 10,000/- to the complainant. 9. Being aggrieved from the order of the District Forum, the opposite parties approached the State Commission by way of an appeal. The State Commission, vide impugned order dated 05.02.2014, allowed the appeal primarily on the ground that the complainant himself was a defaulter in payment of instalments in terms of the time schedule agreed by him and therefore, he was not entitled to any cost on account of delay in handing over the possession of the apartment to him. Being aggrieved from the order of the State Commission, the complainant is before us, by way of this revision petition. 10. It is first contended by the learned counsel for the opposite party that the complainant having booked the flat for investment, is not a consumer within the meaning of Section 2(1)(d) of Consumer Protection Act, therefore the complaint is not maintainable. The learned counsel has drawn our attention to the fact that in the complaint, the complainant disclosed the address of a house in Chennai, in the affidavit filed with the revision petition, he disclosed the address of a flat in Whitefield, Bangalore whereas he has booked a flat in the Shantiniketan project of the opposite party, meaning thereby that he owns as many as three properties including the property, subject matter of the dispute between the parties. We however find that in their reply to the complaint, the respondents did not claim that the complainant was not a consumer within the meaning of Section 2(1)(d) of Consumer Protection Act, which to the extent it is relevant provides that consumer does not include a person who avails the services for a commercial purpose. We find that there is no averment by the opposite party, in their reply before the District Forum that Chennai house and the house at Whitefield, Bangalore were owned by the complainant. In the absence of any such averment, we cannot accept the contention that the house at Chennai, where the complainant was residing at the time of filing the complaint and the house at Whitefield, Bangalore, where he was residing at the time of filing the revision petition are owned by him. Merely on booking of the flat in Shantiniketan project of the opposite party, it cannot be said that he booked the flat for commercial purpose. The learned counsel for the opposite party submits that in fact, the booking was made for investment purposes and he relies upon the decision of this commission in Ved Kumari & Ashish Kaul vs. M/s. Omaxe Buildhome Pvt. Ltd., C. C. No. 143 of 2013, decided on 05.3.2014. We, however, find that in the case relied upon by the learned counsel for the opposite party, the complainant before this Commission had booked as many as five flats, out of which one flat was with the subject matter of the complaint. The particulars of the remaining four flats were noted by this Commission in the order. It was also noted that the complainant himself had admitted that he had booked all those flats for the investment and for taking care of the family in future. However, in the case before us, there is no evidence of the complainant booking more than one flat and in fact, there was not even an averment that the flat in question were booked by the complainant for the purpose of making an investment. Therefore, we do not need to go in the question as to whether purchasing a residential flat for the purpose of making investment would amount to availing the services for commercial purpose within the meaning of Section 2(1)(d) of Consumer Protection Act or not. 11. Coming to the merits of the case, as noted earlier, the opposite party gave four reasons in their letter dated 01.03.2007 for postponing the date by which the possession was to be handed over by them. In our view, none of them except flooding at site due to heavy rains would be covered under the expression force majeure. As far as the strike by sand supplier was concerned that, as per the said letter was for 50 days, though the period of strike is not given. That could not have resulted in postponing the possession to the extent it was actually postponed. The shortage of skilled labourers cannot be said to be a reason beyond the control of the opposite parties. The same would be the position regarding the truck strike on three occasions, though the letter does not indicate what was the period during which the truckers were on strike and what was the duration of the said strike. Even the flooding at site due to rains in September, 2005 could not have delayed the handing over of possession to the extent delay was caused. The letter does not indicate, for how many days the work could not progress on the site on account of the alleged heavy rains in September, 2005. 12. What is more important is that the opposite party did not adhere even to the dead line stipulated in their letter dated 01.03.2007. The date of handing over the possession was further postponed by them firstly to April/May, 2009 and then to September, 2009, without giving any plausible explanation for the said delay. Therefore, from whatever angle we may look at it, the delay on the part of the opposite parties in handing over the possession to the complainant cannot be justified in terms of the agreement between the parties. 13. The learned counsel for the opposite parties submits that the complainant accepted possession of the apartment on 23/24.12.2011 without any protest and therefore cannot be permitted to claim interest at a later date on account of the alleged delay in handing over the possession of the apartment to him. We, however, find no merit in the contention. A perusal of the letter dated 23.12.2011, issued by the opposite parties to the complainant would show that the opposite parties unilaterally stated in the said letter that they had discharged all their obligations under the agreement. Even if we assume on the basis of the said printed statement that having accepted possession, the complainant cannot claim that the opposite parties had not discharged all their obligations under the agreement, the said discharge in our opinion would not extend to payment of interest for the delay period, though it would cover handing over of possession of the apartment in terms of the agreement between the parties. In fact, the case of the complainant, as articulated by his counsel is that the complainant had no option but to accept the possession on the terms contained in the letter dated 23.12.2011, since any protest by him or refusal to accept possession would have further delayed the receiving of the possession despite payment having been already made to the opposite parties except to the extent of Rs. 8,86,736/-. Therefore, in our view the aforesaid letter dated 23.12.2011 does not preclude the complainant from exercising his right to claim compensation for the deficiency on the part of the opposite parties in rendering services to him by delaying possession of the apartment, without any justification condonable under the agreement between the parties. 14. The State Commission took the view that since the complainant himself has committed default in payment of the balance amount, he was not entitled to claim any interest from the opposite parties on account of delay in handing over the possession of the apartment. The State Commission was not justified in taking this view, considering that according to the complainant, he had offered payment of even the 16th instalment, but the opposite parties asked him to make the said payment at the time of handing over of possession of the apartment and averment to this effect was not denied in the complaint. The requisite averment in this regard finds incorporation in para no. 8 of the complaint. Vide letter dated 15.04.2010, the opposite parties sent a demand letter to the complainant regarding instalment no. 16 as well as several amounts payable on handing over possession. No interest on account of the delay in payment of instalment no. 16 was debited to the account of the complainant in the aforesaid statement which clearly supports the stand taken by the complainant that the opposite parties had asked him to pay the said instalment at the time of taking possession of the apartment. 15. For the reasons stated hereinabove, we are of the view that the delay on the part of the opposite parties in handing over possession to the complainant was not covered under the force majeure clause of the sale agreement. Accordingly the opposite parties were under a contractual obligation to pay interest to the complainant at the rate of 7% per annum. The State Commission, therefore, was not justified in setting aside the order of the District Forum, directing payment of interest at the rate of 7% per annum as the total cost of litigation. We, therefore, set aside the order passed by the State Commission and restore the order passed by the District Forum. The payment in terms of the order of the District Forum shall be made within four weeks from today. The revision petition stands disposed of. V. K. JAIN, J
PRESIDING MEMBER .
DR. B.C. GUPTA MEMBER PSM/9