State Consumer Disputes Redressal Commission
Ansal Lotus Melange Projects Pvt. Ltd. ... vs Harish Chandra Poplani And Another on 27 January, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 386 of 2014 Date of Institution : 10.12.2014 Date of Decision : 27.01.2015 1. Ansal Lotus Melange Projects Pvt. Ltd. registered office at 1/18B, Asif Ali road, New Delhi 110002 through its Assistant General Manager Mr. Amit Raina (Sale & Marketing). 2. Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184 Sector 9-C, Chandigarh through its Assistant General Manager Mr. Amit Raina (Sales & Marketing). Appellants/Opposite Parties. Versus 1. Harish Chandra Poplani son of Sh. Parmanand Poplani resident of H.No.4962, D-Block, Puncham Society, Sector 68, Mohali. 2. Divya Poplani daughter of Harish Chandra Poplani resident of H.No.4962, D-Block, Puncham Society, Sector 68, Mohali. ....Respondents/Complainants. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:Sh. Gaurav Chopra, Advocate for the appellants.
Sh.
Sandeep K. Sharma, Advocate for the respondents.
First Appeal No. :
18 of 2015 Date of Institution :
21.01.2015 Date of Decision :
27.01.2015
1.
Harish Chandra Poplani S/o Sh. Parmanand Poplani R/o #4962, D-Block, Puncham Society, Sector 68, Mohali.
2. Divya Poplani D/o Harish Chandra Poplani R/o #4962, D-Block, Puncham Society, Sector 68, Mohali.
Appellants/Complainants.
Versus
1. Ansal Lotus Melange Projects Pvt. Limited, Corporate Office:A-2, Dhawandeep Building 6 Jantar Mantar Road, New Delhi-110001 through its Managing Director.
2. Ansal Lotus Melange Projects Pvt. Limited, Regional Office: SCO 183-184, Sector 9-C, Madhya Marg, Above British Library, Chandigarh through its Regional Manager.
....Respondents/Opposite Parties.
Appeal under Section 15 of the Consumer Protection Act, 1986.
Argued by:Sh.Sandeep K. Sharma, Advocate for the appellants.
Sh. Gaurav Chopra, Advocate for the respondents.
PER DEV RAJ, MEMBER.
This order shall dispose of two appeals bearing Nos.386 of 2014 filed by the appellants/Opposite Parties and 18 of 2015 filed by the appellants/complainants, against the order dated 11.09.2014, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed the complaint of the complainants and directed the Opposite Parties (appellants in FA No.386/2014) as under:-
10. We accordingly allow the present complaint and direct the Opposite Parties as under: -
(a) To waive off the interest on delayed payment, if any, pending, till the possession of complete flat as per the brochure is offered;
(b) Not to demand the excess amount of Rs.2,83,920/- + Rs.8783/- towards increased area. The demand will be as per calculation based on the report of the expert only. If the payment in accordance with this demand is not made by the Complainant within a period of one month of demand, the Opposite Parties will be entitled to recover interest on the delayed payment at the agreed rate as per the agreement.
(c) To pay compensation of Rs.1.00 lac to the Complainants on account of mental agony, harassment caused to them and deficiency in service on the part of the Opposite Parties.
(d) To pay Rs.10,000/- towards costs of litigation.
As the Complainant had agreed to pay for car parking space, this prayer is declined.
11. This order be complied with by the opposite parties, within 30 days from the date of receipt of its certified copy. Opposite Parties are at liberty to adjust the compensation and costs of litigation against the payment due from the Complainants in this regard towards the property within the stipulated time of 30 days. In case the Opposite Parties do not comply, the Opposite Parties shall be liable to pay interest @9% p.a. on the compensation amount as at Sr.No.(c) from the date of this order, till actual payment/adjustment, besides payment of litigation costs.
2. The facts, in brief, are that Opposite Party No.1 conceived and planned a project of setting up, constructing and developing an integrated township in Sector 115 Mohali comprising apartments under the name and style Palm Grove Apartments, Orchard County, Kharar Landra Road, Mohali. It was stated that in June 2009, the Opposite Parties, through their agents at Chandigarh and Mohali started booking the units in Palm Grove Apartments, in the aforesaid project, and circulated brochure (Annexure C-1) specifying and highlighting the location, typical floor plan, prime features, specifications, dimensions etc. It was further stated that the complainants booked apartment No.11 SF vide application form dated 8.6.2009 (Annexure C-2) and paid Rs.2,75,000/- vide receipt (Annexure C-3) towards the booking amount to Opposite Party No.2. It was further stated that area of the apartment was 1525 sq. ft. and the total sale consideration was Rs.27,75,000/- plus car parking charges of Rs.60,000/-. It was further stated that the complainants were allotted the aforesaid unit vide allotment letter (Annexure C-4).
3. It was further stated that to allure the investors, the Opposite Parties offered a special scheme called No Pre-EMI Interest till possession in association with HDFC Ltd., for the aforesaid apartments. It was further stated that, under this scheme, on receipt of 15% booking amount, the tie up Bank was to approve loan to the purchaser of the flat/apartment/unit and was to sanction 80% of the loan amount in favour of the builder, who was to bear all the pre-EMI interest, payable to the Bank till offer of possession. It was further stated that the complainants also availed of the benefit of said scheme and loan amount of Rs.22 Lacs was sanctioned by the HDFC Ltd. The complainants annexed the copies of sanction letter dated 29.9.2009, loan agreement dated 30.9.2009, tripartite agreement and letter dated 30.9.2009 as Annexures C-5 to C-8 respectively. It was further stated that the complainants received letter dated 19.03.2012 (Annexure C-9) from the Opposite Parties offering possession of the allotted residential unit, wherein the area of the flat was mentioned as 1725 sq. ft instead of 1525 sq. ft. It was further stated that after receipt of this letter, complainant No.1, visited the site on 01.04.2012, to know the exact status of the project but he was shocked to see that the construction work was not completed and a lot of work was pending. It was further stated that the complainants vide email dated 01.04.2012 (Annexure C-10) apprised the Opposite Parties about the pathetic state of work at the site and also sent a letter to Opposite Party No.2 (Annexure C-11) with a similar grievance. It was further stated that the complainants, thereafter, received email dated 02.04.2012 from the Opposite Parties stating that the flat of the complainants was completed and the pictures sent to them were of wrong flat. It was further stated that vide email dated 05.04.2013, the complainants asked the Opposite Parties to depute a person and fix meeting so that the allotted flat and other amenities, as promised, in the brochure, could be inspected.
4. It was further stated that the Opposite Parties vide email 9.4.2012, asked the complainants to visit the site for inspection and contact the executives mentioned in the mail. It was further stated that complainant No.1 alongwith one representative of Opposite Party No.2 again inspected the site on 14.4.2012, but again the alleged claim of completion of construction of the project was found to be totally false. It was further stated that vide registered letter dated 14.4.2012 (Annexure C-14), the complainants immediately apprised Opposite Party No.2 about the incomplete construction. It was further stated that the Opposite Parties even did not have the completion certificate, from the concerned Government Agencies and Authorities viz. Municipal Committee, Electricity Board, GMADA, PUDA etc. It was further stated that on the one hand, the Opposite Parties were pressurizing the complainants to take possession of the incomplete flat and, on the other hand, HDFC Bank vide letter dated 9.3.2012 (Annexure C-17) demanded pre-EMI interest of the loan amount, from them (complainants), on the plea of offer of possession vide letter dated 19.3.2012. It was further stated that, as the Opposite Parties stopped making payment of interest to the HDFC Bank, left with no other option, the complainants, under compulsion and pressure, started paying pre-EMI interest from March 2012 onwards. It was further stated that the actual physical possession of the flat, in question, complete in all aspects, eluded the complainants.
5. It was further stated that Opposite Party No.2 vide letter dated 30.4.2012, not received by the complainants, but later on taken by hand from Opposite Party No.2 on 23.6.2012, informed that the development work of Phase I had already been completed and alongwith that residential unit was ready for possession. It was further stated that the Opposite Parties, in a totally illegal, arbitrary and unjustified manner, demanded an exorbitant amount of Rs.2,83,920/- plus Rs.8,783/- on account of increased super area. It was further stated that vide letter dated 18.05.2012, the Opposite Parties again revised the super area of the flat, in question to 1657 sq. ft. (Annexure C-18). It was further stated that, in all, the complainants had made payment of Rs.25,55,000/- to the Opposite Parties, as per the following details:-
Sr. No. Date Amount Particulars
1. 10.06.2009 Rs.2,75,000.00 Paid by the complainants at the time of booking
2. 30.09.2009 Rs.8,32,500.00 Paid by HDFC
3. 25.02.2010 Rs.1,38,700.00 Paid by HDFC
4. 31.03.2010 Rs.6,93,750.00 Paid by HDFC
5. 28.09.2010 Rs.60,000.00 Car parking charges paid by the complainants.
6. 22.03.2011 Rs.5,55,000.00 Paid by HDFC Total:
Rs.25,55,000.00 (infact Rs.25,54,950.00 when totaled)
6. It was further stated that the balance amount which was to be paid at the time of handing over of possession, complete in all aspects, was Rs.1,38,750/-, by HDFC Bank and Rs.1,41,250/- by the complainants. It was further stated that after receipt of letter dated 18.05.2011, the complainants enquired from Opposite Party No.2, the reasons for increasing area of the flat and it was informed by one of its officials, that there was no change in the covered area viz. actual size and dimensions of the flat, which was as per the specifications mentioned in the brochure but the increase in the area was related to common pool. It was further stated that the complainants and the other allottees of the flats in the project represented against the illegal and arbitrary increase in the super area, which the Opposite Parties flatly turned down, and rather threatened not to handover the possession, if the amounts demanded were not paid. It was further stated that the Opposite Parties failed to deliver possession of the flat within 2 years of allotment and also failed to adhere to the time schedule and delayed the completion of the project.
7. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice.
When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), directing the Opposite Parties, not to demand the alleged excess amount of Rs.2,83,920/- plus Rs.8,783/- under the garb of increase in the alleged super area; waive off the alleged penal interest; refund Rs.60,000/- taken on account of car parking; reimburse the pre-EMI on the loan amount from March 2012 onwards; pay Rs.2,50,000/- as compensation for mental agony and physical harassment and Rs.11,000/- as cost of litigation, was filed.
8. The Opposite Parties, in their written statement, took up a preliminary objection, to the effect that since the complainants had paid more than Rs.20 Lacs as price of the house and demanded compensation of Rs.2,50,000/- and Rs.11,000/- as cost of litigation, the District Forum was not having the pecuniary jurisdiction to entertain and decide the complaint. On merits, it was stated that there was no allurement and rather, No Pre EMI Interest till possession scheme was for the benefit of the purchaser, under which, the purchaser was to pay only EMI and interest on EMI was to be paid by the developer to the Bank. It was further stated that on 19.03.2012, the possession letter qua the unit booked by the complainants was issued after completion in all respects. It was further stated that physical possession of the flat was offered to the complainants. It was denied that on 1.4.2012, the complainants visited the site and shocked to see that the construction work was not complete. It was further stated that it was explained to the complainants that they had seen a wrong flat in some other under construction tower and the units which were facing the towers compound were the ready units and even the unit number plan was affixed to avoid any confusion. It was further stated that the offer of possession of the unit was made only after obtaining the completion/occupancy certificate (Annexure R/1) from the Competent Authority. It was denied that the complainants were pressurized. It was further stated that since the flat was complete for possession, it was informed to the complainants that possession was ready and the same could be handed over. It was further stated that after obtaining the completion certificate/occupancy certificate, the possession was offered to the complainants, and in the possession letter, it was stated that with the issuance of possession letter, the Opposite Parties were not liable to pay further EMIs interest from the date of offer of possession to the Bank. It was further stated that since the possession was offered, therefore, the Bank was to ask for EMI interest from the complainants. It was further stated that it was not understood, as to why the complainants were trying to twist the facts. It was further stated that vide letter dated 30.4.2012, the complainants were told to take possession subject to payments, which were not made by them. It was further stated that it was also informed on 18.5.2012 to the complainants that the final area, as per calculation at the time of possession was increased by 132 sq. ft and the increase so made was only in calculation of final built up and the super area of the flat.
9. It was denied that the Opposite Parties illegally and arbitrarily demanded Rs.2,83,920/- plus Rs.8,783/- on account of increased super area at the time of possession. It was further stated that as per Clauses 8 and 9 of the allotment letter, the complainants accepted the plans and design specifications, which were tentative and the Company could affect such variations, additions, alterations, deletion and modification carried out by the Company. It was further stated that the apartment allottee accepted the specifications and information as to the material to be used and features in the construction of apartment as set out in the Annexure to the agreement. It was further stated that it was made clear at the time of allotment that plans were tentative because during the course of construction, few changes in the area and calculations were to be made after seeing the practical aspect of the project. It was further stated that another letter was issued to the complainants on 18.5.2012 (Annexure C-19) vide which, they were apprised about the final built up area after revision as 1657 sq. ft. It was further stated that the increase was only the difference in calculation of final built-up area and super area. It was further stated that the allotment letter was very much clear regarding the super area and as per clause 8 of the allotment letter, super area was tentative. It was stated that in para 13 of the complaint, the complainants admitted that they delayed in making the payment. It was further stated that in the allotment letter, the possession was likely to be delivered within 24 months. However, the possession was offered within 2 years and 6 months i.e. on 19.3.2012. Therefore, the delay, if any, of 6 months was not a big delay. It was further stated that the delay of 6 months could not be read against the Opposite Parties as the cost of such delay was suffered by the Company by paying the interest to the Bank. It was further stated that the complainants admitted that the Opposite Parties paid EMIs till March 2012. It was denied that offer of possession was just a hollow claim. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, contained in the complaint, being wrong, were denied.
10. The complainants filed replication, wherein, they reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of the Opposite Parties.
11. The parties led evidence, in support of their case.
12. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order.
13. Feeling aggrieved, both the complainants, as well as the Opposite Parties, filed the instant appeals.
14. The Counsel for the appellants/Opposite Parties submitted that the complainants were allotted Flat bearing No.11SF, 2nd Floor at Palm Grove, Sector 115, Kharar-Landran Road, Mohali having 1525 sq. ft. for a total sale consideration of Rs.27,75,000/-. He further submitted that possession was offered in March, 2012. He further submitted that in prayer clause of the complaint, reliefs sought were till the actual physical possession and, therefore, the District Forum did not have pecuniary jurisdiction to entertain the complaint. He further submitted that initially the area of flat was 1525 sq. ft. which was finally increased to 1657 sq. ft. and in terms of Clause 8 and 9 of the agreement, the area could increase or decrease. He further submitted that on application moved by the respondents/complainants, District Forum agreed to appoint a Local Commissioner to measure/assess the increase in the area. He further submitted that no opportunity was afforded to the appellants/Opposite Parties to associate during inspection. He further submitted that the District Forum erroneously relied upon report of the Local Commissioner in respect of another flat. He further submitted that area of the flat in different towers was varying and the report of another flat could not be relied upon, in the instant case. He further submitted that measurement books placed, on record, by the appellants/Opposite Parties were not controverted by the respondents/complainants in any manner. He further submitted that interest on delayed payment was strictly in accordance with the terms and conditions incorporated in the allotment letter. He further submitted that the respondents/complainants were not consumers as defined in Section 2(1)(d) of the Act. He further submitted that the District Forum wrongly held that possession offered was not with complete amenities whereas the fact was that the respondents/complainants evaded possession on flimsy grounds. He further submitted that when possession was offered in March, 2012, the question of payment of the EMI Interest by the appellants did not arise and the same was rightly stopped. He further submitted that there was no deficiency attributable to the appellants, which caused mental agony and physical harassment to the respondents, and, therefore, grant of compensation was wholly unjustified.
15. The Counsel for the respondents/complainants (appellants in FA No.18/2015) submitted that Opposite Parties revised the area of flat time and again i.e. from 1525 sq. ft. to 1725, then to 1681 sq. ft. and finally to 1657 sq. ft. (Annexure C-19). He further submitted that the District Forum rightly relied upon the report of the Local Commissioner, who was earlier appointed to measure the area of another flat, in the present case, as the flat of the complainants is situated in the same project and only floor was different. He further submitted that the respondents/complainants were sanctioned loan of Rs.22.00 lacs under the scheme called No Pre EMI interest till possession in association with HDFC and, therefore, the builder was to bear all the Pre EMI Interest till offer of complete possession. While pleading that the complainants never sought possession, the Counsel submitted that possession offered was without completion of all amenities, and, even the appellants/Opposite Parties did not have the completion certificate from the concerned Government Agencies and Authorities.
He further submitted that the complainants were entitled to Pre EMI Interest from the appellants/Opposite Parties for the period of delay in offering possession complete in all respects. He further submitted that the appellants/ Opposite Parties raised illegal and wrongful demand of Rs.68,778/-, on account of alleged interest on delayed payments.
He further submitted that the order of the District Forum, being correct, be upheld and in addition, the appellants/Opposite Parties be directed to pay EMIs interest till the delivery of possession, complete in all respects.
16. As regards objection of the appellants/Opposite Parties that the respondents/complainants were not consumers, on the ground that the complaint was filed for enforcement of the contract and any issue or dispute arising out of the same (contract) could not be said to be a consumer dispute, it may be stated here that Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. In this view of the matter, this objection of the appellants/Opposite Parties, being devoid of merit, must fail, and the same stands rejected. It may also be stated here that against total price of Rs.27,75,000/- of the flat, the respondents/ complainants raised a loan of Rs.22,00,000/- from HDFC. Since the respondents/complainants alleged deficiency in rendering service and indulgence into unfair trade practice by the appellants/Opposite Parties, they (respondents/complainants) are decidedly the consumers, as defined by the Act. It is also highly improbable that a person shall raise loan, on which huge interest is payable, for the purposes of investment. Clearly the respondents/complainants are consumers. The objection of appellants/Opposite Parties, therefore, being devoid of merit, is not sustainable, and, the same stands rejected.
17. The objection of the appellants/Opposite Parties that the complaint, being beyond the pecuniary jurisdiction of District Forum, was not maintainable before it is also devoid of merit. Since the possession already stood offered in March/April, 2012 to the complainants, the value of the reliefs claimed did not exceed Rs.20.00 lacs. The District Forum had, thus, the pecuniary jurisdiction, to entertain and decide the complaint. The objection, therefore, being devoid of merit, is not sustainable, and, the same stands rejected.
18. The next question, which falls for consideration is, as to whether, the possession offered in March, 2012 was legal and complete.
The District Forum, in para 9 of its order, has clearly held that the possession has already been offered to the complainants by the Opposite Parties and they (complainants) are only contending about the area and payments demanded by the Opposite Parties for the same. This fact also finds corroboration in the written statement filed by the appellants/Opposite Parties that on 19.03.2012, the possession letter qua the unit booked by the respondents/complainants was issued after completion in all respects and physical possession of the said flat was offered to the respondents/ complainants. The appellants/Opposite Parties also contended that it was explained to the complainants that they had seen a wrong flat in some other under construction tower and the units, which were facing the towers compound were the ready units and even the unit number plan was affixed to avoid any confusion. Again the respondents/complainants vide email dated 5.4.2012 (Annexure C-13) requested that a person be deputed to show that amenities (Club, swimming pool, parking etc.) as per brochure were complete. Thereafter, the respondents/complainants vide letter dated 14.4.2012 (Annexure C-14) pointed out deficiencies on 14 counts. The appellants/Opposite Parties were required to provide the amenities as per the specifications mentioned in the allotment letter, terms of which were binding between the parties. The respondents/complainants could not allege any deficiency on the basis of alleged promises for any amenity, in the brochure. Thus, the offer of possession of the unit was made only after obtaining the completion/occupancy certificate (Annexure R/1) from the competent authority. It is also in evidence that in the possession letter, it was informed to the respondents/complainants that with the issuance of the letter, the appellants/Opposite Parties would not be liable towards the Bank to pay further EMIs interest from the date of offer of possession. It was also informed to the respondents/complainants, that since the possession was offered, therefore, the Bank was to ask for EMI interest from the respondents/complainants. It is also in evidence that vide letter dated 30.4.2012, the respondents /complainants were told to take possession subject to payments, which were not made by them. However, in the complaint filed by the respondents/complainants, they have sought refund of total amount of EMIs w.e.f. 19.03.2012 till date alongwith interest @12% per annum till possession. As discussed above, undoubtedly, the possession was offered vide letter dated 19.03.2012 (Annexure C-12) and it clearly indicated that after completion of work, they (Opposite Parties) had received completion certificate (Exhibit R-1/1) for the building(s) and the same were ready for possession. A copy of the completion certificate was produced in evidence by the appellants/opposite parties vide Exhibit R-1/1. As such, the possession of the flat, in question, offered in March, 2012, was legal and complete and, therefore, the question of payment of pre-EMI interest by the appellants/ Opposite Parties beyond 19.3.2012 did not at all arise. Had the respondents/complainants produced in evidence the report of an expert/Architect/Engineer to substantiate the alleged deficiencies, the position would have been different.
19. The respondents/complainants alleged delay in delivery of possession, which was to be delivered within 24 months. Clause 10 of the allotment letter also stipulates a period of 24 months for delivering possession of the premises in question. The appellants/Opposite Parties in Para 13 of their written statement have admitted that possession was likely to be delivered within 24 months but they (appellants/Opposite Parties), offered the same (possession) within 2 years and 6 months as offer of possession was made on 19.3.2012. To this extent, the appellants/Opposite Parties were deficient, which caused mental agony and physical harassment to the respondents/complainants. In our considered opinion, the payment of pre-EMI interest till possession i.e. 19.3.2012 was not adequate and, as such, for such mental agony and harassment, suffered by the respondents/complainants, compensation in the sum of Rs.50,000/- shall be adequate and fair to meet the ends of justice. The order impugned, therefore, needs to be modified to the extent indicated above. However, the litigation costs awarded by the District Forum, being adequate, shall remain intact.
20. The next question, which falls for consideration, is, as to whether, the demand of Rs.2,83,920/- + Rs.8783/- (tax) on account of increased area of the flat i.e. from 1525 sq. ft. to 1657 sq. ft. was justified or not. The demand of Rs.2,83,920.00 + Rs.8,783.00 made vide letter dated 30.04.2012 (Annexure C-18) was for an area of 1681 Sq. Feet but when finally, area was revised to 1657 Sq. ft. vide letter dated 18.5.2012 (Annexure C-19), the demand comes to Rs.2,40,196.44 + taxes. {In fact, out of this demand, the District Forum has held the increase in area to the extent of 37.51 to be justified, in accordance with the report of the Local Commissioner, in another case viz. complaint No.220 of 2012 and has also held that the Opposite Parties shall be entitled to enhanced price for the same.}
21. Clauses 8 & 9 of the Allotment letter, being relevant, are extracted hereunder:-
8. THAT the Apartment allottee has accepted the plans, designs, specifications shown to him which are tentative and are kept at the companys office and agrees that Company may effect such variations, additions, alterations, deletion and modifications therein as it may, in its sole discretion deemed appropriate and fit or as may be done by any competent authority and the apartment allottee hereby gives his consent to such variation/addition/alteration/deletion and modification. The Apartment Allottee has also accepted the specifications and information as to the material to be used and features in the construction of apartment as set out in the brochure/in the annexure to this agreement, which are also tentative and the company may make such variations and modifications therein, as it may, in its sole discretion, deem fit and proper or may be done by any competent authority and the apartment allottee gives his consent to such variations and modifications.
9. THAT the Company shall, under normal conditions, complete the construction of Palm Grove as per the said plans and specifications seen and accepted by the Apartment Allottees with such additions, deletions, alterations, modifications in the layout, building plans, change in number, dimensions, height, size, area or change of entire scheme the Company may consider necessary or may be required by any competent authority to be made in them or any of them. To implement all or any of these changes, supplementary allotment letter, if necessary will be executed by the company. If as a result of the above alteration etc., there is either reduction or increase in the super area of the said premises or its location, no claim, monetary or otherwise will be raised or accepted except that the original agreed rate per sq. mt./sq.ft and other charges will be applicable for the changed area i.e. at the same rate at which the apartment was registered/booked or as the company may decide and as a consequence of such reduction or increase in the super area, the company shall be liable to refund without interest only the extra basic price and other pro rata charges recovered or shall be entitled to recover the additional basic price and other proportionate charges without interest as the case may be. If for any reason the company is not in a position to allot the property applied for, the company, at its sole discretion, shall consider for any alternative property or refund the amount deposited with simple interest @10% per annum.
Therefore, for any increase in super area, the appellants/Opposite Parties, in view of the aforesaid provision, were, entitled to recover, the additional basic price and other proportionate charges without interest.
Perusal of the District Forum record reveals that the complainants disputed the increase in super area, and filed two applications, one under Section 151 CPC for issuing directions to the Opposite Parties, to produce the original approved drawings, at the time of circulation of brochure as well as at the time of completion of the unit 11 SF in the Palm Groves Apartment Orchard County and the other under Section 13 of the Act for issuing appropriate directions to the OPs to permit the complainants to get the unit, in question, inspected and measured by a Govt. Approved Architect. Both the applications were allowed by the District Forum vide order dated 28.11.2013. In pursuance to this order, while the Opposite Parties were to place on record copy of the approved drawings/maps, alongwith summary of Areas Independent Floors, Block-11, the name of the Architect was to be disclosed by the complainants. On 12.12.2013, copies of two approved drawings/maps, along with summary of Areas Independent Floors, Block-11 were placed on record by the Counsel for the Opposite Parties. However, the counsel for complainants furnished the particulars of Architect only on 30.01.2014. Vide order dated 31.01.2014 passed by the District Forum, on the request of the Counsel for the parties, the case was adjourned to 17.02.2014.
On 17.02.2014, none was present on behalf of the complainants and the case was adjourned to 21.02.2014. Again on 21.02.2014, none was present on behalf of the complainants and the case was adjourned to 12.03.2014 when the complainants filed two applications, one under Section 151 CPC for taking cognizance of the report of LC (Annexure C-21) (in another complaint No.220), in the instant case and the other under Section 13(3B) read with Section 151 CPC for staying the operation of letter dated 11.03.2014 issued by the appellants/opposite parties and also restraining the Opposite Parties from further selling/allotting the flat, in question, during the pendency of the complaint. The Opposite Parties did not contest the applications but filed objections against the report of the Local Commissioner stating that his report could not be accepted, as he did not measure the areas correctly. Thus the District Forum without considering the objections of the Opposite Parties allowed the applications vide order dated 28.5.2014. It is, however, evident that the respondents/ complainants did not controvert the measurements relating to the area of the flat. Thus clearly the Local Commissioner, did not inspect the flat in question, and, without affording opportunity of association during inspection to the appellants/Opposite Parties, the report submitted by him (Local Commissioner) in respect of another flat viz. flat No.31 was relied upon and made applicable, in the same manner. It may be stated here that the flat earlier inspected was in Tower No. 31 whereas the flat, in the instant case, is in Tower No.11. Even the measurements placed by the appellants/Opposite Parties remained unrebutted by any cogent evidence by the respondents/ complainants. Report of the Local Commissioner in respect of another flat, cannot be said to be the correct basis for determining the increase in area, in the present case, and application of the same, in the instant case, was, therefore, not fair. The District Forum in Para 9 of its order observed As both the parties were present, at the time of assessment by the Local Commissioner, the Opposite Parties could have questioned the calculations made by the Local Commission at that stage only. So, the Complainant is liable to pay money in terms of the area calculated by the Local Commissioner. The aforesaid observation of the District Forum is factually incorrect. Not only this, in Vikramjit Singhs case, in whose case the L.C had submitted report, the demand for increased area was Rs.2,57,508/- plus Rs.7,957/- whereas in the present case, the demand was Rs.2,83,920/- + Rs.8783/- but effectively, the demand, keeping in view final increase in area to 1657 Sq. Ft. as against 1525 Sq. Ft. as per Annexure C-19, works out to (132 Sq. Ft. x 1819.67) = Rs.2,40,196.44 + taxes. Had the facts been similar and identical, there would have been no difference in the demanded price. In the absence of any cogent evidence by the respondents/ complainants to controvert the measurements, regarding increase in area, produced by the appellants/Opposite Parties, the demand for increased area (1657 Sq. Ft. as per Annexure C-19) in the sum of Rs.2,40,196.44 + taxes has to be accepted as justified. The appellants/Opposite Parties are, therefore, entitled to Rs.2,40,196.44 + taxes on account of increase in area, instead of Rs.2,83,920.00 + Rs.8,783/-.
22. The next question, which falls for consideration is, as to whether, the car parking charges in the sum of Rs.60,000/- were payable or not. It is clearly evident from the summary of dues appended with Allotment Letter (Annexure C-4) that a sum of Rs.60,000/- on account of open car parking space were payable, in addition to the basic sale price of Rs.27,75,000/- and, therefore, the contention of the respondents/complainants that the same were not payable was not correct.
23. As regards the demand of the respondents/complainants for waiving off Rs.68,778/- on account of the delayed interest, it may be stated here, that clause 24 of the allotment letter contained a stipulation that Any delay in payments will make the Allottee liable for interest @18% per annum. The respondents/complainants have not adduced any evidence that they ever represented for waiving off such charges. Such charges being as per the agreed terms and conditions of allotment, in our considered opinion, were rightly levied.
24. No other point, was urged, by the Counsel for the parties.
25. For the reasons recorded above, the appeal bearing FA No.386/2014 filed by the appellants/Opposite Parties, is partly accepted with no order as to costs, and the impugned order passed by the District Forum, is modified, to the extent, indicated hereunder;
(i) The appellants/Opposite Parties are directed to pay an amount of Rs.50,000/- (Rupees Fifty Thousand Only) to the respondents/complainants, as compensation for mental agony and physical harassment suffered by them, instead of Rs.1,00,000/- awarded by the District Forum.
(ii) The appellants/Opposite Parties are also directed to pay an amount of Rs.10,000/- to the respondents/complainants towards cost of litigation, as awarded by the District Forum.
(iii) The appellants/Opposite Parties shall pay the amount of compensation, as mentioned in Clause (i) above, to the respondents/complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @9% per annum, from the date of default, till realization, besides payment of costs of litigation aforesaid.
(iv) All other directions given, and reliefs granted by the District Forum, in the impugned order, subject to the modifications, aforesaid, which are contrary to and, in variance of this order, shall stand set aside.
26. In view of the acceptance of appeal bearing FA No.386/2014 filed by the appellants/Opposite Parties, and modification of the order, aforesaid, the appeal bearing FA No.18/2015, filed by the respondents/complainants, being devoid of merit, is dismissed, with no order as to costs.
27. Certified copy of this order be placed in First Appeal No.18 of 2015.
28. Certified Copies of this order be sent to the parties, free of charge.
29. The file be consigned to Record Room, after completion.
Pronounced.
January 27, 2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad STATE COMMISSION (First Appeal No.386 of 2014) (Ansal Lotus Melange Projects Pvt. Ltd. & Anr.
Vs. Sh.
Harish Chandra Poplani & Anr.
Argued by:
Sh. Gaurav Chopra, Advocate for the applicants/appellants.
Sh. Sandeep K. Sharma, Advocate for the respondents.
Dated the 27th day of January, 2015 ORDER Alongwith the appeal, an application, for condonation of delay of 46 days as per the applicants/appellants (as per the office report 47 days), in filing the same (appeal), was moved, by the applicants/appellants, on the ground, that certified copy of the impugned order dated 11.9.2014, was received at the Regional Office of the applicants/appellants at Chandigarh on 25.9.2014, whereafter, the same was communicated by the Marketing Division of the applicants/appellants to the Legal Department for the purpose of seeking an opinion regarding the legality of the order dated 11.9.2014 and for the purpose of ascertaining the maintainability of the appeal for successfully impugning the aforementioned order. It was further stated that the matter was subsequently examined by the Assistant Manager (Legal) of the Opposite Parties seeking the formal clearance from the concerned quarters in Appellant No.1 Company. It was further stated that the case file of Consumer Complaint No.420 of 2012 was forwarded to Sh. J. S. Mann, Advocate for the applicants/appellants on 30.9.2014 for the purpose of instituting an appeal for impugning the aforesaid order. It was further stated that before filing the appeal, the erstwhile counsel Sh. J. S. Mann, Advocate had to undergo an Appendix operation/surgery in mid October, 2014, as a result whereof, despite having appeared in the consumer complaints, on account of having been advised bed rest, had to withdraw from the above mentioned complaints as well and was substituted by Sh. Vaibhav Narang, Advocate, to whom the case file was handed over by Sh. J. S. Mann, Advocate on 30.11.2014. It was further stated that in the light of aforesaid unfortunate developments, the case file, upon issuance of appropriate sanction/approval by the Competent Authority, was forwarded to the present Counsel on 3.12.2014. It was further stated that thereafter the appeal was prepared and completed in all respects for the purpose of institution without any further delay. It was further stated that, as such, delay of 45 days had occurred. It was further stated that the delay in filing the appeal is bonafide and on account of the aforesaid reasons.
2. The respondents filed reply to the application, for condonation of delay, aforesaid, wherein it was stated that applicants/appellants be put to strict proof regarding the averments made in the application. It was disputed that the applicants/appellants had been diligently pursing the subject matter. It was prayed that the application, being devoid of merit, be dismissed.
3. Arguments, in the application were heard.
4. No doubt, there is delay of 46 days as per the applicants/appellants (as per the office report 47 days), in filing the appeal. The question arises, as to whether, the delay was intentional, or on account of the reasons, beyond the control of the applicants/appellants. Before discussing this question, let us have a look at law, laid down by the Hon`ble Supreme Court and the Delhi High Court, regarding the condonation of delay. In Lanka Venkateswarlu (D) By Lrs. vs State Of A.P. and Ors., A.I.R. 2011 S.C. 1199: (2011) 4 S.C.C. 190, the Apex Court held as under:-
(i). The Courts generally adopt a liberal approach in considering the application for condonation of delay on the ground of sufficient cause under Section 5 of the Limitation Act.
(ii). Rules of limitation are not meant to destroy the rights of parties. They are meant to see that the parties do not resort to dilatory tactics, but seek their remedy promptly.
(iii). Once a valuable right has accrued in favour of one party as a result of the failure of the other party to explain the delay by showing sufficient cause and its own conduct, it will be unreasonable to take away that.
(iv). Whilst considering applications for condonation of delay under Section 5 of the Limitation Act, the Courts do not enjoy unlimited and unbridled discretionary powers. All discretionary powers, especially judicial powers, have to be exercised within reasonable bounds, known to the law.
5. In N. Balakrishnan v. M. Krishnamurthy, (1998) 7 Supreme Court Cases 123, there was a delay of 883 days, in filing application, for setting aside exparte decree, for which application for condonation of delay was filed, the Apex Court held as under:-
It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to a want of acceptable explanation whereas in certain other cases, delay of a very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient, it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in revisional jurisdiction, unless the exercise of discretion was on wholly untenable grounds or arbitrary or perverse. But it is a different matter when the first court refuses to condone the delay. In such cases, the superior court would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untrammeled by the conclusion of the lower court.
10.
The primary function of a court is to adjudicate the dispute between the parties and to advance substantial justice. The time- limit fixed for approaching the court in different situations is not because on the expiry of such time a bad cause would transform into a good cause."
The Court further observed in paragraphs 11, 12 and 13 which run thus:-
"11.
Rules of limitation are not meant to destroy the rights of parties. They are meant to see that parties do not resort to dilatory tactics, but seek their remedy promptly. The object of providing a legal remedy is to repair the damage caused by reason of legal injury. The law of limitation fixes a lifespan for such legal remedy for the redress of the legal injury so suffered. Time is precious and wasted time would never revisit. During the efflux of time, newer causes would sprout up necessitating newer persons to seek legal remedy by approaching the courts. So a lifespan must be fixed for each remedy. Unending period for launching the remedy may lead to unending uncertainty and consequential anarchy. The law of limitation is thus founded on public policy. It is enshrined in the maxim interest reipublicae up sit finis litium (it is for the general welfare that a period be put to litigation). Rules of limitation are not meant to destroy the rights of the parties. They are meant to see that parties do not resort to dilatory tactics but seek their remedy promptly. The idea is that every legal remedy must be kept alive for a legislatively fixed period of time.
12. A Court knows that refusal to condone delay would result in foreclosing a suitor from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words "sufficient cause" under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi Jain v. Kuntal Kumari (1969) 1 SCR 1006 and State of W.B. v. Administrator, Howrah Municipality (1972) 1 SCC 366.
13. It must be remembered that in every case of delay, there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy, the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time, then the court should lean against acceptance of the explanation. While condoning the delay, the court should not forget the opposite party altogether. It must be borne in mind that he is a loser and he too would have incurred quite large litigation expenses. "
6. In Jyotsana Sharda vs Gaurav Sharda, (2010-3) 159 P.L.R. D15,Delhi High Court, while condoning 52 days delay, in filing the appeal, observed as under:-
No doubt, originally the Apex Court in Ram Lal Vs. Rewa Coalfield AIR 1962 SC 351 had held that while seeking condonation of delay under Section 5 of the Limitation Act the application must not only show as to why he did not file the appeal on the last day of limitation but he must explain each day`s delay in filing the appeal. The later judgments of the Apex Court have considerably diluted this requirement of explaining each days delay by a party. The latest trend and the ratio cases which the Apex Court has laid down in the judgments is that the Court must adopt a liberal approach rather than pedantic approach while doing so. It must see the bonafides of the person who is preferring the appeal rather than seeing the quantum of delay which has been occasioned. Reliance in this regard can be placed on Collector, Land Acquisition, Anantnag and Anr. Vs. Mst. Katiji & Ors. AIR 1987 SC 1353.
7. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case also. The reasons, mentioned in the application, for condonation of delay are plausible. The application for condonation of delay, is duly supported by the affidavit of Sh. Deepak Makhija, Deputy General Manager (Sales & Marketing) of the applicants/appellants. The delay in filing the appeal has been sufficiently explained, by the applicants/appellants, with dates and events, which took place. The delay, in filing the appeal was, thus, not intentional. It is settled principle of law, that normally every lis, should be decided, on merits. When the substantial justice and the procedural wrangles are pitted against each other, then the former shall prevail over the latter. The main object of the Consumer Fora, is to dispense substantial justice, and not to throttle the same, by making it a sacrificial goat, at the altar of hyper-technicalities. Some lapse, on the part of the litigant alone, is not enough to turn down his plea, and shut the door against him. The explanation furnished for delay, in filing the appeal, does not smack of malafidies. When the explanation furnished for delay is bonafide, the Consumer Fora is required to adopt liberal approach, to condone the same, so as to ensure that the lis is decided, on merits, than by resorting to hyper-technicalities. In the instant case, in our considered opinion, there was no intentional and deliberate delay, in filing the appeal, by the applicants/appellants. Thus, the delay in filing the appeal is liable to be condoned. There is, thus, sufficient cause, for condoning the delay. The application thus, deserves to be accepted.
8. For the reasons recorded above, the application for condonation of delay of 46 days as per the applicants/appellants (as per the office report 47 days), in filing the appeal, is allowed, and the delay is, accordingly, condoned.
9. Admitted.
10. It be registered.
11. Arguments, in the appeal already heard.
12. Vide our detailed order of the even date, recorded separately, this appeal bearing FA No.386/2014 filed by the appellants/Opposite Parties, has been partly accepted and the order of the District Forum has been modified. In view of the acceptance of this appeal, the cross appeal bearing FA No.18/2015, filed by the respondents/complainants, has been dismissed, with no order as to costs.
13. Certified copies of the order be sent to the parties free of charge.
Sd/-
(DEV RAJ) MEMBER Sd/-
(JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Ad