National Consumer Disputes Redressal
M/S. Apex Buildtech Ltd. vs Madhu Talreja on 10 April, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 739 OF 2017 (Against the Order dated 18/10/2016 in Appeal No. 1081/2014 of the State Commission Delhi) 1. M/S. APEX BUILDTECH LTD. CORPORATE OFFICE 514, AGGARWAL MILLENNIUM TOWER, NETAJI SUBHASH PLACE, PITAM PURA, DELHI - 34 ...........Petitioner(s) Versus 1. MADHU TALREJA D/O LATE H.L TALREJA, R/O BL-113,3RD FLOOR,L-BLOCK, JAIL ROAD,HARI NAGAR, NEW DELHI - 64 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. ANUP K THAKUR,MEMBER For the Petitioner : Mr. Ashish Kumar, Advocate For the Respondent :
Dated : 10 Apr 2017 ORDER Justice Ajit Bharihoke (Oral)
The petitioner being aggrieved of the concurrent finding of the State Commission, Delhi in F.A. No.18.10.2016 resulting in dismissal of her appeal has approached this Commission in revision petition.
2. Briefly stated facts relevant for the disposal of this revision petition are that the respondent/complainant booked a residential flat in the group housing project "Apex Greens" at NH-1, GT Road, Sonipat, Haryana, undertaken by the petitioner/OP. The respondent pursuant to the agreement deposited Rs.10 Lakhs with the OP against the consideration amount through two cheques respectively dated 20.02.2006 and 25.12.2006. Builder Buyer Agreement between the parties was executed on 20.10.2007. It is the case of the complainant that at the time of executing the agreement, the petitioner/OP assured her that possession of flat would be handed over within three years. The builder faulted to deliver possession within the promised time. The respondent/complainant therefore requested the petitioner to refund the amount of Rs.10 Lakhs deposited by her at the time of booking of the flat. She served a legal notice to the appellant but no avail. Thereafter, the respondent raised the same dispute by approaching the District Forum (V), North West District, Shalimar Bagh, Delhi.
3. Petitioner/OP on being served with the notice of the complaint filed WS admitting the booking of the residential flat by the respondent/complainant and receipt of Rs.10 Lakhs towards costs of the flat. It was also admitted that Builder Buyer Agreement was executed between the parties on 20.10.2007. Petitioner however denied that it had promised to hand over the flat within 3 years or that the construction of the project was inordinate delayed. The petitioner pleaded that the respondent/complainant herself was at fault as she failed to make further payment of consideration amount as per the construction linked payment schedule.
4. The District Forum on consideration of pleadings and the evidence found the petitioner guilty of deficiency in service. Consequently, the complaint was allowed and the petitioner/OP was directed as under:
"a. Pay to the complainant a sum of Rs.10,00,000/- (Rs. Ten Lakhs only) alongwith interest @ 18% p.a. from the date of the deposit till payment.
Pay to the complainant a sum of Rs.10,000/- as cost of litigation.
Pay to the complainant a sum of Rs.30,000/- being the cost imposed during the hearing the complainant which the OP had failed to pay."
5. Being aggrieved by the order of the District Forum, the petitioner approached the State Commission, Delhi in appeal. The State Commission on re-appreciation of evidence did not find fault with the order of the District Forum. Consequently, the appeal was dismissed and the order of the District Forum was confirmed. This has led to filing of this revision petition.
6. Learned counsel for the petitioner has argued that orders of the Fora below are against the facts. Both the Fora below have failed to appreciate that as per the Builder Buyer Agreement, the respondent/complainant was supposed to make payment linked with the construction. The complainant however failed to make the payments of subsequent installment. Therefore, the petitioner cannot be faulted for non-delivery of the flat within time. It is further argued that 18% interest awarded by the fora below is highly excessive in view of the fact that the respondent herself is a defaulter.
7. We have considered the submissions made by the learned counsel for the petitioner and perused the record. At the outset, it may be recorded that the revisional jurisdiction of this Commission flows from Section 21 (b) of the Consumer Protection Act, 1986 and it is limited only to the extent of jurisdictional error or some material irregularity. On perusal of the impugned order of the fora below, we find that both the fora below have passed well- reasoned order based upon the facts which cannot be faulted. The State Commission while rejecting the appeal has given the reasons as under:-
"We have requisitioned the record of the District Forum. There is nothing on record to show that the appellant/OP had raised the demand on the respondent/complainant as per payment schedule between the parties. Appellant/OP has stated in its written statement that the construction at the site was in full swing and it was likely to deliver the possession of the flat by Dec., 2013. The respondent/complainant had agreed to take the possession of the flat had it been delivered by the end of December, 2013.The Ld. District Forum, by its order dated 29.7.2013 had asked the appellant/OP to file an affidavit in regard to the status of the construction. Again on 16.12.2013, the Ld. District Forum had asked the appellant/OP to file the status of the construction at site. Thereafter, appellant/OP stated before the District Forum that they will hand over the possession of the flat by March, 2014 as the finishing work was going on. Thereafter, the ld. District Forum asked the appellant/OP to file an undertaking in this regard and the payment terms under which the same shall be allotted. However, the appellant/OP had failed to place any undertaking before the District Forum. Again the District Forum vide order dated 22.7.2014 had asked the appellant/OP to file an undertaking as regards the delivery of the possession. On 4.9.2014, an affidavit of Shri Naresh Kumar, Director and Authorized Signatory of the OP was filed wherein it was stated that the construction at the site was complete and the work of plaster, fittings of tiles, putting electric wires etc. had commenced. It was further stated that the possession would be delivered tentatively between June, 2015 to December, 2015 after getting permission from competent authority. No undertaking was filed before the Ld.District Forum. Even in the affidavit no fixed date is given for handing over of possession.
After considering the aforesaid factual position and material on record, the District Forum reached to a conclusion that the project of the appellant/OP was unduly delayed and was not likely to be completed in the near future and had passed an award in favour of the respondent/complainant holding the appellant/OP deficient in service to the respondent/complainant.
Admittedly, the flat in question was booked in the year 2006 and a period of ten years had lapsed. Flat is not ready for occupation even on date. Hon'ble National Commission in the case of Sunil Mantri Reality Ltd. Vs. K.Sreelatha & Anr., IV (2012) CPJ 295 (NC) has observed as under :
"That such type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands, who after grabbing the money from purchaser, enjoy and utilize their money but does not hand over the flat on one pretext or the other. Petitioner has made respondent run from one fora to other fora so that they cannot have any roof over their head and he (petitioner) can go on enjoying respondents money without any hindrance."
In the circumstances, we are of the considered opinion that the appellant/OP has been enjoying the hard earned money of the respondent/complainant for the past ten years and harassing him by filing frivolous appeal."
On careful reading of the above, we are unable to find any reason to differ with the aforesaid opinion particularly when it is admitted case of the parties that the flat in question was booked in the year 2007. The petitioner had promised to deliver the possession of the flat within 3 years and that the flat in question was not complete till the decision of the consumer complaint by the District Forum on 18.10.2014. During the course of arguments, we asked the learned counsel for the complainant as to whether the construction is complete. In response to our query, learned counsel for the petitioner stated at the bar that the construction is complete but completion certificate/occupancy certificate are still not issued. From this it is obvious that even till date, the petitioner is not in a position to deliver the possession of the flat with clear title to the respondent/complainant. Hence, the OP was highly negligent in completing the project which obviously is a deficiency in service. Therefore, we find no reason to interfere with the orders of the fora below.
8. Learned counsel for the petitioner has contended that 18% interest awarded by the fora below is exorbitant. We do not find any merit in this contention. The petitioner is a builder who has utilized the money of gullible consumer on the false promise that he would deliver the possession within 3 years which he has not been able to fulfill even after 10 years of booking. Therefore, the order of the Fora below grating 18% interest cannot be faulted.
9. In view of the discussion above, we find no reason to interfere with the impugned orders in the revisional jurisdiction. The revision petition is accordingly dismissed. As we have dismissed the revision petition, there is no need to pass any order on the application for condonation of delay.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... ANUP K THAKUR MEMBER