Jaago Graahak Jaago, Apna Haq Maango. By M K Gupta, Free Lance Journalist, email- . Pl. read it carefully, ask Vatika Ltd. to honour this judgment. NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 525 OF 2013 (From the order dated 9.10.2012 in First Appeal No.1502/2010 of the Haryana State Consumer Disputes Redressal Commission, Panchkula) 1. Vatika Limited … Petitioner 7th Floor, Vatika Triangle Sushant Lok Phase-1 Gurgaon - 122002 Versus Mr. Rajneesh Aggarwal ... Respondent S/o Mr. R.K. Aggarwal C-254-A, Sushant Lok-1 Gurgaon - 122002 BEFORE: HONBLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE MR. SURESH CHANDRA, MEMBER For the Petitioners : Mr. S.K. Sahni, Advocate For the Respondents : In person Pronounced on : 22nd July, 2014 ORDER PER SURESH CHANDRA, MEMBER This revision petition has been filed by the petitioner/opposite party against the order dated 9.10.2012 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula in First Appeal No.1502/2010 whereby the State Commission upheld the order dated 17.9.2010 passed by the District Consumer Disputes Redressal Forum, Gurgaon in consumer complaint No.323 of 2009 and dismissed the appeal filed by the petitioner. By its order in question, the District Forum had allowed the complaint of the respondent/complainant and granted following reliefs:- “We, therefore, allow this complaint and direct the opposite party to pay Rs.1,75,950/- to the complainant along with interest at the rate of 9% per annum from the date of passing of this order till its actual realization. The opposite party is further directed to pay Rs.20,000/- for the harassment caused by the opposite party to the complainant and also to pay Rs.5,000/- towards cost of litigation. The present order is ordered to be complied with within one month from the date of receipt of the copy of this order.” 2. Briefly stated, the complainant had purchased flat No.63/2, Emilia-2 in Vatika City, Sohna Road, Gurgaon and had paid total consideration of Rs.28,35,190/-. As per clause 11.4 of Buyer’s Agreement dated February, 2004, the possession of the flat was to be given in 3 years’ time, i.e., by February 2007. However, the possession of the flat was actually given on 27.10.2008, i.e., after the delay of 1 year and 8 months. In terms of the conditions incorporated in the Buyer’s Agreement, it was stated that the opposite party/petitioner was to pay Rs. 5/- per sq.ft. per month to the complainant/respondent as penalty for delay in handing over the possession of the flat which worked out to be Rs.1,95,540/-. In the meanwhile, the complainant/respondent had also deposited Rs.3,88,919/- as registration amount of the flat on 21.10.2008 but the registration of the flat was got done on 13.2.2009 by the opposite party and, therefore, the opposite party /petitioner had utilised the funds of the complainant amounting to Rs.3,88,919/- for 3 and a half month for which the OP was liable to pay interest @ 18% p.a., i.e., Rs17,500/-. The possession of the flat was taken on 27.10.2008 subject to completion of certain unfinished work in the complainant’s flat. Thus, alleging deficiency in service on the part of the opposite party/petitioner, the respondent/complainant filed a consumer complaint before the District Forum. 3. On notice, the opposite party contested the complaint by filing a written statement in which it was submitted that the opposite party had completed the construction of flat within the agreed time frame. However, due to some reasons totally beyond control of the opposite party, some delay had occurred in commencing the construction of the project such as change in the project drawings due to realignment of certain section of the road passing through the project site, disruptions/delays in supply of stone aggregate and sand because of orders of the courts etc. It was pointed out that the opposite party had duly communicated the reasons of the delay to the complainant through a letter dated 14.5.2007. It was finally brought out by the opposite party that the possession of the flat was handed over by the opposite party to the complainant within one week of the receipt of the full and final payment. Thus, according to the opposite party, there was no deficiency in service on his part and hence the complaint against it was liable to be dismissed. On appraisal of the evidence before it and consideration of the submissions of the parties, the District Forum allowed the complaint and gave relief in terms of the order reproduced above. On appeal filed by the opposite party before the State Commission against this order, the State Commission upheld the order of the District Forum and dismissed the appeal of the petitioner vide its impugned order. The petitioner is now before this Commission challenging the impugned order through the present revision petition. 4. Learned Shri S.K. Sahni, Advocate has appeared for the petitioner and the respondent has chosen to present his case himself. Learned counsel for the petitioner submitted that the Fora below have failed to appreciate that even though clause 11.4 provided for compensation for delay, the same had to be read with provisions of clauses 11.1., 11.2, 11.3 and 39 which laid down various eventualities which could delay the construction of the apartment in question and for which the petitioner company was entitled for extension in the aforesaid tentative period of completion of 3 years. He submitted that the complainant was kept informed about the likely delay in the completion of the construction work on account of reasons beyond the control of the petitioner and as such the petitioner could not be held liable to pay compensation for the same. Besides this, the contention raised by learned counsel was that the apartment in question was initially allotted to one H. Vikram (HUF) vide agreement dated 9.3.2004 but in August 2004, aforesaid allottee approached the petitioner company for reallotment /assignment of the apartment in favour of one Shri Inderjeet Garg and the same request was allowed by the petitioner company. Thereafter again in April 2006, said reallottee Shri Inderjeet Garg approached the petitioner company for further reallotment/reassignment of the said apartment in favour of the respondent/complainant which request was accepted upon acceptance of the terms and conditions of the said reallotmemt/reassignment and the agreement by the respondent/complainant. Thus, the respondent is a second reallottee of the original allotment, more than 2 years later. In view of this, learned counsel submitted that the respondent is not a consumer being a reallottee and for that matter the second reallottee keeping in view the law laid down by the Apex Court in the case of H.U.D.A Vs. Raje Ram [1 (2009) CPJ 56 (SC) decided on 23.10.2008. Thus learned counsel submitted that the respondent/complainant is neither entitled to any relief for the so-called delay in terms of the provisions of the original agreement to which the respondent had become a party having accepted its conditions on assignment of the flat consequent upon reallotment in his favour and also the complaint itself is not maintainable in terms of the ratio laid down by the Apex Court in Raje Ram’s case (supra). He, therefore, strongly pleaded for allowing the revision petition and setting aside the impugned order of the Fora below. 5. On the other hand, the respondent/ complainant has submitted that both the Foras below have returned their concurrent finding after carefully considering different provisions of the agreement and keeping in view the facts and circumstances in which the delay occurred for which the petitioner company was squarely responsible. He supported the impugned orders and submitted that the ratio of the Raje Ram’s case would not be attracted to the present case because the facts and circumstances of that case were different. He, therefore, prayed for dismissal of the revision petition with costs. 6. Both the parties have also filed their written submissions. 7. We have gone through the record before us and also considered the submissions made by the parties before us. In this case, we may note that both the Foras below have returned their concurrent finding in favour of the complainant/respondent while non-suiting the defence of the petitioner company and giving relief to the complainant. The District Forum has returned the following finding after appraising the evidence before it while accepting the complaint and the same is reproduced thus:- “5. It was argued by the counsel for the opposite party that delay in completion of the project was because of the circumstances beyond the control of the opposite party i.e. change in project drawings due to realignment of the sector road passing in front of the Vatika City Project, disruptions/delays in supply of stone aggregate and sand due to orders of the courts, unusually heavy rains, delay in supply of cement and steel etc. As such the complainant was not entitled to any penalty from the opposite party as per clauses 11.1, 11.2, 11.3 and 39 of the Apartment Buyer’s Agreement. In this regard he has referred to the letter dated 14.5.2007 which was written by the opposite party to the complainant. We have gone through the case file. There was nothing on file to show that delay in completion of the project was because of change in project drawings due to realignment of the sector road passing in front of the Vatika City Project, disruptions/delays in supply of stone aggregate and sand due to orders of the courts, unusually heavy rains, delay in supply of cement and steel etc. as argued by the learned counsel for the opposite party. A perusal of the case file shows that total consideration of the plot was Rs.28,35,190/-. Out of this as per the schedule of down payment 95% of the total sale consideration was paid by the complainant with the opposite party. In the down payment schedule it has been mentioned that on final notice of possession 5% + Stamp Duty Charges, registration expenses and other charges were to be paid by the complainant. In this regard notice was given by the opposite party to the complainant on 7.10.2008 and thereafter all the payments demanded by the opposite party were deposited by the complainant. The Buyer’s Agreement was executed between the parties on 9.3.2004. According to the said agreement the opposite party was bound to give possession within 3 years i.e. up to 8.3.2007. However, the possession was delivered by the opposite party to the complainant on 27.10.2008 after the delay of more than 18 months. As per requirement in 11.4 of the agreement notice in writing was to be given in 90 days after the expiry of three years from the date of buyer’s agreement which was executed on 9.3.2004. The total area of the plot was 1955 Sq. ft. As per clause 11.5 of the Buyer’s Agreement the complainant was entitled to compensation from the opposite party at the rate of Rs.5/- per sq.ft. per month for the delay in delivering the possession. Thus, in this case the complainant was entitled to a compensation to the tune of Rs.1,75,950/-. This amount has not been paid by the opposite party. In our opinion there was deficiency in service on part of the opposite party.” (Emphasis provided by us) 8. The State Commission vide its impugned order has upheld the aforesaid finding of the District Forum and dismissed the appeal of the petitioner company. We do not find any infirmity in the aforesaid concurrent finding of the Foras below under Section 21B (b), under which the powers of this Commission are rather limited and unless there is some illegality, material irregularity or jurisdictional error, there is no scope for any interference by this Commission while exercising its revisional jurisdiction. The Foras below have already considered the aspects brought out by the petitioner company in the revision petition and nothing has been produced before us which would persuade us to take a different view. So far as the case of Raje Ram is concerned, the facts of the present case are totally different. In the present case, the respondent/complainant had purchased the apartment in question from the first transferee on 29.4.2006 when the construction had not been completed and purchase/transfer of the apartment was duly approved by the petitioner company after charging Rs.65,840/- as transfer charges. In the circumstances, the petitioner company could not deny its role as a service provider to the respondent/complainant and has to be held liable for any deficiency in service with reference to the terms and conditions of the agreement which was made equally applicable to the complainant also consequent upon the approval of the assignment by the petitioner company on 30.4.2006 on payment of the transfer charges to the petitioner company. 9. For the reasons stated above, we do not find any merit in the revision petition and the same is dismissed accordingly but with no order as to costs. ..……………Sd/-……………….. (AJIT BHARIHOKE J.) PRESIDING MEMBER ....…………Sd/-………………… (SURESH CHANDRA) MEMBER SS/
Posted on: Tue, 09 Sep 2014 16:02:12 +0000