National Consumer Disputes Redressal
Mrs. Veena Khanna vs M/S. Ansal Properties on 9 July, 2007
Equivalent citations: AIR 2007 (NOC) 2136 (NCC) (N.C.D.R.C., NEW DELHI), 2007 (6) AKAR (NOC) 913 (NCC.) (N.C.D.R.C., NEW DELHI)
NCDRC NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.155 OF 2006 (From the order dated 6.12.2005 in Complaint Case No.251/2000 of the State Commission, Delhi) Mrs. Veena Khanna W/0 Dr. S. Khanna, R/o K-12, Tara Apartment, Alaknanda, Kalkaji New Delhi-110 019. Appellant Vs. 1. M/s. Ansal Properties & Industries Ltd. , 118, UFF, Parkash Deep Building, 7, Tolstoy Marg, New Delhi-110 001 2. M/s. Adharshila Towers (Pvt.) Ltd. UGF, Indra Parkash Building, 21, Barakhamba Road, New Delhi-110 001 3. M/s. Ansal Buildwell Ltd. 118, UFF, Parkash Deep Building, 7, Tolstoy Marg, New Delhi-110 001 Respondents BEFORE : HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER For Appellant Mr. D.K. Sammi, Advocate For the Respondents Avtar Singh, Advocate Dated the 9th July, 2007 O R D E R
M.B.SHAH, J. PRESIDENT.
Facts in brief:
It is the say of the complaint that in response to the advertisement for construction and sale of flats by the Opposite Party Nos. 1 & 2, the Complainant offered to purchase a flat for a total consideration of Rs.23,33,344/-, and an agreement to this effect was entered into between the parties on 9.7.1996. Thereafter, the Complainant paid a sum of Rs.15,12,000/- on different dates till 16.1.1998, and stopped payment of the balance amount as there was no progress of construction work. The Complainant states that the Opposite Party No. 1 vide its letter dated 9.1.1998 agreed to deliver the possession of flat by 1.6.1999. But the flat was not constructed and hence, not delivered.
For this deficiency in service on the part of the Opposite Parties the Complainant demanded refund of the deposited amount with interest at the rate of 18% pa. which the Opposite Party refused to pay. Hence, complaint No.251/2000 was filed on 13.9.2000 before the State Commission, Delhi.
By judgement and order dated 6.12.2005, the State Commission, Delhi, allowed complaint and directed the Opposite Party to refund the amount of Rs.15 lakhs with interest at the rate of 13% p.a. from the date of deposit of the last installment till the date of payment. Interest at the rate of 13% was allowed as the Complainant arranged the amount by way of loan at the said rate. In the alternative, it is also directed that if the Opposite Parties choose to handover the possession of the flat , the order of refund with interest will not come into operation.
Against that order, this Appeal is filed by the Complainant praying that the Opposite Parties be directed to deliver the possession of the flat and also compensation for delay in delivery in possession or adequate compensation should be awarded so that she can purchase a flat of the size, as agreed.
It appears that as the afore-quoted order passed by the State Commission gave preferable alternative to the Opposite Parties, and the builder took undue advantage of it and refunded the amount deposited by the complainant with interest, as directed, because of the rise in the prices of the immovable properties. Opposite Parties took advantage only because an option was given to either refund the amount or to hand-over possession of the flat and no adequate compensation was awarded.
Learned counsel for the appellant submitted that the complainant was ready and willing to take possession of the flat but there was unusual delay on the part of the builder to construct the flats. It is further contended that the complainant being a Govt. employee, could not take risk for years and wait. Hence, she was required to file complaint for refund of the amount with interest and adequate compensation.
As against this, in the written version filed by the Opposite Parties, it was specifically admitted that the Opposite Parties were ready and willing to deliver the possession of the flat as soon as it was ready and the complaint for refund of the amount deposited by her should have been dismissed. The relevant portion thereof is as under:
7. With regard to the allegations made in para 7 wrongly numbered as para 8, it is wrong and is denied that any fixed time period was stipulated between the parties or that Respondents have failed to complete the construction.
It is also wrong and is denied that any deficiency in service has been committed by Respondents. The correct position is that structure of the flat has already been completed and finishing jobs have already been taken in hand and are progressing rapidly. The flat is likely to be completed in all respects shortly and the possession will then be handed over to the Complainant. The Complainant is not entitled to resile from the concluded contract between the parties in a unilateral and arbitrary manner or to ask for refund of the amounts already paid to the Respondents or any Interest thereon. The Respondents have already invested a huge amount on the construction of the flat on the basis of construction agreement between the parties and it is too late in the day for Complainant to resile from the said construction agreements. It is wrong and is denied that the Complainant has suffered any damage as alleged or at all. It is also denied that the Complainant has suffered any mental agony, mental torture or harassment at the hands of the Respondents. The complainant is put to a strict proof of each and every allegations made by her.
8. With regard to allegations made in para 8 wrongly numbered as para 9. it is wrong and is denied that the Respondents are liable to pay Rs. 20,00,000/- or any amount whatsoever to the complainant. It is also wrong and is denied that there has been any deficiency of service on the part of any of the Respondents. The claimant is not entitled to any amount whatsoever nor any interest as alleged or at all. It is also wrong and is denied that the claimant is entitled to any costs as alleged. In fact, it is the respondents who should be awarded costs against the Complainant for filing false and frivolous complaint against the respondents.
10. From the allegations made in the complaint, it is crystal clear that the claimant wishes to resile from the agreements entered into between the parties for reasons best known to her. One such reason could be that in the recent past property prices have seen downward trend, as such, the claimant wishes to back out from the contract in a dishonest manner. Had the prices gone up, she would never have submitted any complaint or asked for refund or cancellation of the arrangements. The Very fact the complainant is seeking the cancellation of the agreement and refund of the amount paid, no allegations of deficiency of service survives on the face of it and on this ground alone the complaint is liable to be dismissed summarily.
From the aforesaid averments made in the written version, it is clear that there is admission on the part of the builder that (a) the building was not constructed as per contemplated time period but was under construction.
(b) that the complainant should not be permitted to cancel the agreement because there is downward trend in the prices of the immovable property and (c) the possession of the flat would be delivered as it is likely to be completed in all respect shortly. The claim for compensation of Rs.20 lakhs was also denied.
Considering the aforesaid stand taken by the builder (Opposite Parties), the State Commission ought to have passed a specific order directing the builder to deliver the possession of the flat as soon as it is completed and should have been awarded reasonable compensation for delay in construction. It ought not to have given any option to choose so that if the price rises, the builder could refuse to hand-over possession of the flat.
In view of the aforesaid facts, we suggested to the learned counsel for the Opposite Parties to find out whether it was possible for the builder to deliver the possession of the said flat, which was allotted to the complainant or to allot any other flat of the same size in the vicinity. It appears that as the order was passed in favour of the Opposite Parties, Opposite Parties were not interested in settling the claim as there is tremendous rise in the prices of the immovable property. Further, it is also difficult to believe that a big builder having huge organization, would not be having any alternative suitable flat, which can be offered to the complainant.
Learned counsel for the Opposite Parties submitted that in the complaint, the prayer was only for the refund of the amount and therefore, the State Commission rightly directed only refund of the amount and gave option to the opposite parties to deliver the possession of the flat if they choose. He also contended that the State Commission has directed the builders to refund the amount with 13% interest on the ground that the Complainant has taken loan for the said amount and was paying the said interest to the bank, therefore, the order passed by the State Commission does not call for interference.
In our view, it is true that the Complainant has prayed for the refund of the amount, but this complaint remained pending before the State Commission for more than five years. During that period, it is a known fact that there was tremendous rise in the market prices of the immovable property. Further, it is to be remembered that Consumer Fora is not governed by adversary system procedure, but it is to hold inquisitorial proceedings (inquiry). Hence, in inquisitorial proceedings, the State Commission ought not to have looked only to the prayer made by the Complainant, but ought to have looked into the substance of the matter and at the defence of the Opposite Parties, wherein there is a specific admission that as soon as the flat would be ready after construction, the possession would be delivered. In such a situation, direction for delivery of possession of flat ought to have been pssed and for delay in delivering the possession, adequate compensation should have been awarded.
Further, it is true that the State Commission has directed refund of the amount deposited with interest, which the complainant was paying to the bank, but that does not mean that the Complainant is adequately compensated for delay in construction of the flat by the builder and not delivering the possession of the flat. Because of the delay in construction and delay in deciding the matter, it is practically impossible for a retired Govt. employee to purchase a flat at the present market price.
In such circumstances, it was the duty of the State Commission to direct the Opposite Parties to deliver the possession of the same flat or flat of similar size to the complainant with compensation for delay in delivering the possession. Or, in any circumstances, adequate compensation ought to have been given so that the Complainant could purchase a new flat of the same size at the prevailing market rate. Payment of interest is not any compensation because the Complainant has taken the loan and he was required to pay the same to Bank. That means the amount paid by the Complainant is directed to be refunded by the impugned order.
Hence, the Complainant is required to be compensated for delay in construction of the flat and for not allotting the same to the her. Because of the delay in construction and delay in deciding the matter, it is practically impossible for a retired Govt. employee to purchase a flat at the present price. Therefore, there are two alternatives (a) one is to give adequate compensation for delay and to direct the Opposite Parties to hand-over possession of an alternative flat in the vicinity of the area where the flat was allotted to the Complainant; (b) or secondly, to pay adequate compensation to enable the Complainant to purchase a new flat of the same area in the same or similar locality.
In this view of the matter, this Appeal is allowed. The Opposite Parties are directed to pay a sum of Rs.7,50,000/- as compensation to the Complainant.
This is on the presumption that the value of the flat has escalated.
However, if the builder considers that compensation of Rs.7,50,000/- (Rupees seven lakhs and fifty thousand) is more or excessive, it would be open to the builder to provide an alternative flat of the size and price agreed, in the same locality or near about, to the complainant for which an appropriate allotment letter will be issued by them in favour of the Complainant within a period of eight weeks from the date of the order. If the same is not issued, it shall pay compensation of Rs.7,50,000/- to the complainant, as directed.
The appeal stands disposed of accordingly. There shall be no order as to costs.
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J (M.B. SHAH) PRESIDENT Sd/-
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(RAJYALAKSHMI RAO) MEMBER