National Consumer Disputes Redressal
Ansal Housing And Construction Ltd. vs Sudhansu Bihari Lal Gour on 9 July, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 203 OF 2007 (Against the Order dated 10/05/2006 in Appeal No. 469/1996 of the State Commission Uttar Pradesh) 1. ANSAL HOUSING AND CONSTRUCTION LTD. 15 UGF INDRA PRAKESH, 21, BARAKAHAMBA ROAD NEW DELHI - 110001 ...........Petitioner(s) Versus 1. SUDHANSU BIHARI LAL GOUR S/O. SHRI K.B.L. GOUR, R/O. 117/1 ALOPI BAGH ALLAHABAD - ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON'BLE MR. SURESH CHANDRA, MEMBER For the Petitioner : Mr. N.K. Kantawala, Advocate with Satyender Chauhan and Mr. Remya Rajan, Advocates For the Respondent : Mr. Kishore Rawat, Advocate Dated : 09 Jul 2015 ORDER Petitioner/Opposite Party being aggrieved by impugned order dated 5.10.2006 passed by State Consumer Disputes Redressal Commission, UP, Lucknow (for short, 'State Commission') has preferred this revision petition.
2. Respondent/Complainant was allotted Flat No.304 in "Sarsaswati Type" for Rs.3,92,920/- by the Petitioner/ Opposite party in its Residential Complex " Prayag Kunj, Allahabad". Agreement dated 05.10.1989 to this effect was executed between the parties. As per the agreement, petitioner was to complete the construction and hand over possession of the flat to the respondent by 3.5.1992 or at the latest by August, 1992, from the date of commencement of development of the complex. It is stated by the respondent, that petitioner has neither completed the construction of the residential complex nor handed over possession of the flat to him by May, 1992. Respondent has also paid entire amount of the flat by 1.1.1992. It is further stated, that petitioner has been demanding escalation of the construction cost. Thus, alleging deficiency on the part of the petitioner, respondent filed a consumer complaint before District Consumer Disputes Redressal Forum, Allahabad(for short, 'District Forum') seeking following reliefs;
"(i) The Opposite party may be directed to complete the construction and hand over the possession of the flat no. 303 Saraswati Type in Residential Complex "Prayag Kunj" situated at 3 Stratchey Road, Civil Lines, Allahabad to the Applicant.
(ii) The Opposite party may be further directed to pay Rs.48,000/- as damages at the rate of Rs.2,000/- per month from September, 1992 to August, 1994 and also pay pendentilite and future damages at the same rate.
(iii) The Opposite party may be directed to pay Rs.2,77,200/- as interest on the approximate amount of Rs.3,85,000/- deposited by the Appellant with the Opposite Party at the rate of 24% per annum from September, 1992 to August, 1994 and also pay pendentilite interest at the same rate."
3. Petitioner in its written statement, admitted the execution of the agreement. However, it is stated that respondent has failed to pay the basic cost of the flat in question and also failed to make the payment in time. That is why, possession of flat in question was not delivered. It is the respondent who is at fault. The petitioner is willing to deliver the possession of the flat on payment of outstanding dues. Hence, the consumer complaint merits dismissal.
4. District Forum vide order dated 27.2.1996 allowed the complaint and passed following directions;
"Respondent is directed to hand over the possession of the flat of the complainant to him within one month from the receipt of this order. It is further directed that Respondent shall pay the compound interest @ 24% p.a. to the complainant on the amount of Rs.3,92,920/- from 1st January, 1992. Demand of Respondent for escalation charges of Rs.83,678.80P is dismissed. Complainant shall make the payment of electricity charges and value of increased area and other costs to the Respondent within one month. This amount and interest can also be adjusted with the mutual consent of the parties. Respondent shall pay the amount of Rs.200/- as cost of proceedings and Rs.5,000/- on account of mental agony and compensation to the complainant."
5. Being aggrieved, petitioner filed appeal before the State Commission, which vide its impugned order dated 5.10.2006, partly allowed the appeal and modified order of District Forum to the extent;
"That the interest @ 15% p.a. shall be paid to the complainant by the defendant/appellant on the amount deposited with effect from 1st January, 1992 till the date of actual possession.. The order for payment of compound interest is hereby set aside as well as the order for payment of Rs.5,000/- towards compensation is also set aside. Other order of the Ld. Forum is hereby confirmed."
6. Hence, this revision.
7. We have heard the learned counsel for parties and gone through the record.
8. It is submitted by learned counsel for the petitioner, that since respondent deliberately delayed the payment of dues as demanded by the petitioner, hence, there is no deficiency on the part of the petitioner. The respondent himself has not come forward to take possession of the flat when it was offered to him, he has not cleared dues in respect of the flat. It is further submitted, that State Commission erred in directing the petitioner to make payment of interest @ 15% p.a., as the same is arbitrary and contrary to the provisions of Clause 6 of the terms of agreement dated 5.10.1989. As per this agreement, petitioner is not liable to pay any amount by way of damages or compensation. Further, respondent has failed to make the payment of escalation in the cost of the project.
9. On the other hand it is submitted by learned counsel for respondent, that there is no evidence on record to show that there has been any escalation in the cost of the project. Since, petitioner failed to hand over the possession of the flat to the respondent, within the specified period, present revision is not maintainable.
10. It is an admitted fact that as per the impugned order, possession of flat in question has been handed over to the respondent on 29.11.1996. Thus, sole question which remain for consideration is, whether there is any deficiency on the part of the petitioner and whether respondent is entitled to get any interest on the amount deposited by him w.e.f. 1.1.1996 till the actual date of possession.
11. Clause 6 of agreement dated 5.10.1989, read as under;
"(6) The Builder shall complete the Residential Complex and hand over the position of the built up flat to the Allottee as early as possible subject always to various allottee making timely payments, force-majeure causes, availability of material items for construction, change of policy by the Government Agency and Local Authorities and any causes beyond the control of the Builder. However, the expected time for completion is about 3 ½ years form the date of commencement of the development of the Residential Complex or about 3 years from the date of sanction of Building plan of the built up flat whichever is later. No claim by way of damages or compensation shall lie against the Builder in case of delay in handing over the possession on account of the said reasons or any other reasons beyond the control of the Builder."
12. As per above Clause of the agreement, petitioner had to hand over possession of the flat to the respondent within 3 ½ years from the date of commencement of the development of the Residential Complex or about 3 years from the date of sanction of building plan of the built up flat whichever is later.
13. Admittedly, petitioner did not hand over possession of flat within the specified time as mentioned in the agreement. Thus, deficiency on the part of the petitioner started right from that moment, when it failed to hand over the possession of the flat within the specified period.
14. Petitioner has not placed any evidence on record to show non- handing over the possession of the flat to the respondent, was due to any reasons beyond its control. In the entire written statement, petitioner has nowhere pleaded as to what were the reasons beyond its control, due to which it could not hand over the possession of the flat to the respondent in time. Thus, deficiency in service on the part of the petitioner is writ large in this case.
15. We do not find any reason to disagree with the findings given by the State Commission. There is no infirmity or illegality in the impugned order. The present revision petition having no legal force, is hereby dismissed with cost of Rs.10,000/-(Rupees Ten Thousand only).
16. Petitioner is directed to deposit the cost by way of demand draft in the name 'Consumer Legal Aid Account' of this Commission, within four weeks from today.
17. In case, petitioner fails to deposit the cost within the prescribed period, then it shall be liable to pay interest @ 9% p.a., till realization.
18. List for compliance on 28th August,2015.
......................J V.B. GUPTA PRESIDING MEMBER ...................... SURESH CHANDRA MEMBER