National Consumer Disputes Redressal
M/S. U.T. Builders & Promoters Ltd. vs Anju Mahajan & Anr. on 18 May, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 816 OF 2017 (Against the Order dated 18/01/2016 in Complaint No. 203/2015 of the State Commission Chandigarh) 1. M/S. U.T. BUILDERS & PROMOTERS LTD. THROUGH ITS MANAGING DIRECTOR, SHRI P.L.MIDDHA,HOUSE NO.202, 1ST FLOOR 33-A,CHANDIGARH-160008. PUNJAB ...........Appellant(s) Versus 1. ANJU MAHAJAN & ANR. SMT.ANJU MAHAJAN,WIFE OF SHRI MAHAJAN,ADVOCATE, RESIDENT OF HOUSE NO.1529,SECTOR18-D,CHANDIGARH. PUNJJAB 2. SRI. PRATEEK MIDDHA, HOUSE NO.202, 1ST FLOOR,SECTOR 33-A,CHANDIGARH-160008 PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : Mr. Anant Agarwal, Advocate Ms. Charanjeet Kaur Bhatia, Advocate For the Respondent :
Dated : 18 May 2017 ORDER
1. By this First Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short "the Act"), a Real Estate Developer, namely, M/s U.T. Builders & Promoters Ltd. (for short "the Developer"), calls in question the legality and correctness of the order dated 18.01.2016, passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh (for short "the State Commission") in Consumer Complaint No.203 of 2015. By the impugned order, the State Commission has partly allowed the Complaint, and directed the Developer to jointly and severally, refund the amount of ₹22,50,000/- to the Complainant, along with interest @ 12% p.a. from the respective date of deposits, besides ₹1,50,000/- as compensation for causing mental agony etc. and ₹50,000/- as litigation costs, within a period of two months from the date of receipt of a certified copy of the said order, failing which the amount as against refund shall carry penal interest @ 15% p.a. (simple), instead of interest @ 12% p.a., and the amounts as against compensation and litigation costs shall carry interest at the said enhanced rate from the date of passing of the order (i.e. 18.01.2016) till realization.
2. The circumstances, necessitating filing of the Complaint are as follows:
2.1 Under an Agreement to sell dated 27.05.2014, the Complainant had purchased a 4 BHK flat, No. 7-A, Ground Floor, Category-A, Green Estate, Part-I, Barwala Road, Nagar Council, Derabassi, admeasuring 1749 sq. ft., from the Developer. The basic sale price of the flat, including covered parking for two cars, was ₹25,00,000/-. While on 11.06.2014 the Complainant had paid a sum of ₹22,50,000/- to the Developer, in terms of Clause (6) of the aforesaid Agreement, possession of the semi-finished flat was to be delivered to her on or before 31.07.2014. It was also stipulated in the Agreement that if the possession of the flat is not offered by the stipulated date, the Complainant would be entitled to deduct ₹3,00,000/- from the basic sale price of the flat; and that if the flat is demolished on account of any reason, the Developer shall be under an obligation to allot a similar flat of the same area/specification on first floor of the same project. Eventually, the possession of the flat was not handed over to the Complainant by the stipulated date. On 04.08.2014 she received a communication from the Developer, stating that the possession would be delivered by 30.09.2014 and she would be paid compensation of ₹3,00,000/-, as per the Agreement. On enquiry, the Complainant was told that the site plans had been submitted with the Competent Authority, which were pending approval. Subsequently, vide letter 25.11.2014, the Complainant was allotted a flat on the first floor in the same project. A specific flat, bearing no. A-62, on the first floor was allotted vide letter dated 06.12.2014. The said offer was accepted by the Complainant but the Developer failed to deliver possession of the said relocated semi-furnished flat by 28.02.2015. Having failed to honour its commitment, the Developer issued a cheque to the Complainant in the sum of ₹35,00,000/- in full and final settlement of the dispute. On presentation, the cheque was returned unpaid by the Bank concerned. When the Developer failed to issue another cheque, the Complainant issued a legal notice to it, asking for refund of the amount offered, but all in vain.
2.2 In the said background, the afore-noted Complaint came to be filed before the State Commission. The Complainant had prayed for a direction to the Developer to pay to her a total sum of ₹35,00,000/- towards refund of the amount deposited, interest thereon and damages on account of mental tension etc.
3. Upon notice, the Developer contested the Complaint by filing its Written Version.
4. On consideration of the evidence adduced before it, the State Commission, as noted above, partly allowed the Complaint and issued the afore-noted directions to the Developer.
5. Hence, the present Appeal.
6. It is pointed out by the office that the Appeal is barred by limitation, inasmuch as there is a delay of 372 days in filing the same. An Application, seeking condonation thereof, has been filed along with the Appeal. In paragraphs 2 - 5 of the same, the Developer has furnished the following explanation:
"2. That after the impugned judgment dated 18.1.2016 was passed, the appellant got in touch with respondent no. 1 for getting the matter compromised.
3. That in the meantime, respondent No. 1 preferred one Execution Application No. 38/2016 in aforesaid Complaint case under Section 27 of the Consumer Protection Act, 1986, however, talks of compromise were pending between the appellant-company and the respondent no.1.
4. That the Hon'ble Chandigarh State Consumer Redressal Commission, Chandigarh allowed the aforesaid Execution application and sentenced judgment-debtors to undergo simple imprisonment for a period of 3 years and to pay a find of Rs.10,000/- each and issued non-bailable warrants of the judgment-debtors i.e. Sri P.L. Middha and Sri Prateek Middha.
5. That since the talks of compromise were pending between the appellant-company and the respondent no.1, no appeal was preferred by the appellant-company against the impugned judgment and order dated 18.1.2016."
7. In our opinion, the explanation furnished by the Developer is absolutely unsatisfactory and deserves to be out-rightly rejected.
8. Admittedly, over and above the statutory period of 30 days, as provided under Section 19 of the Act, there is a delay of 370 days in filing the Appeal. The said delay is sought to be explained on the specious plea that since after passing of the impugned order, on 18.01.2016, compromise talks were going on between the parties, the Appeal could not be filed in time. In view of the said averment in the Application, it is clear that the Developer was aware of the impugned order. Assuming for the sake of argument that the Developer was exploring the possibility of an amicable settlement with the Complainant, in the process, he could not lose sight of the statutory period of limitation. If it was not satisfied with the order by the State Commission, it was expected to pursue its legal remedy within the stipulated period and not go on waiting for an indefinite period, expecting an amicable resolution of its dispute with the Complainant. The plea of the Developer that it was because of settlement talks that it did not file the Appeal on time, even otherwise, does not inspire any confidence, as in the Appeal memo there is no indication of the terms of settlement offered to the Complainant. Evidently, it is only on conviction and sentence to undergo simple imprisonment for three years and resultant issue of non-bailable warrants against the Judgment-Debtors, by the State Commission in the Execution proceedings initiated by the Complainant for enforcement of the decree, that the Developer has come out of its deep slumber and filed the present Appeal, with the afore-noted inordinate delay of 372 days. In view of the explanation offered, without indicating the date-wise developments taking place in the matter, it is evident that the Appellant has nothing to say as regards delay as well as on merits, as, admittedly, it had issued a cheque in the sum of ₹35,00,000/- to the Complainant by way of full and final settlement, but later on backed out from issuing a fresh cheque on dishonouring of the cheque in the said sum.
9. In the light of the afore-noted factual scenario and the Appellant's conduct throughout, we have no hesitation in holding that not only the Appellant has failed to make out any cause, much less a "sufficient cause", for condonation of inordinate delay of 372 days in filing the Appeal, the explanation furnished lacks bonafides as well. Accordingly, we decline to condone the said inordinate delay.
10. Consequently, the Appeal is dismissed on the short ground of limitation.
......................J D.K. JAIN PRESIDENT ...................... M. SHREESHA MEMBER