ORDER
B.K. Taimni, Presiding Member
1. Appellant was the opposite party before the State Commission where the respondent/ complainant had filed a complaint alleging deficiency in service on the part of the appellant.
2. Undisputed facts of the case are that the respondent who was an NRI, with a view to buy an apartment, entered into an agreement with the appellant on 26.9.1996, This contract envisaged payment of price of land as also for the flat. There was a schedule of instalment fixed as the part of the contract which envisaged the delivery of apartment by August, 1998. It was the case of the complainant that having paid 8 instalments to the tune of Rs. 13,14,780, which included 7 instalments to the flat as also undivided interest in land, the flat was found to be nowhere ready for delivery. They were shocked to receive a letter dated 2.11.1997(page 208 of the paper book) wherein payment of instalments were re-scheduled and so was the date of delivery going upto February 1999, Since this change of terms and rescheduling was not acceptable and when complainant asked for refund of money with interest and when the appellant indicated readiness to refund the money but without any interest and when mailer could not be solved with regard to the interest/ damages, a complaint was filed before the State Commission, who after hearing the parties through an exhaustive order directed the appellant to refund the deposited amount of Rs. 13,14,780 along with interest @18% p.a. from the date of respective deposits till the time of payment along with cost of Rs. 5,000. Aggrieved by this order, this appeal has been filed before us.
3. We heard the learned Counsel for the parties at considerable length and perused the material on record. Plea of the appellant is three-fold. One that the time is not the essence of the contract; second that deficiency, if any, lies with the respondent/complainant as he was not regular in paying the instalments on schedulein fact he had not paid the last 3 instalments and thirdly, additional/extended period for delivery was also justified/required to complete the flat for delivery, after making the necessary additional construction/ modifications, suggested by the complainant.
4. Dealing with the first point first, the learned Counsel for the appellant has relied upon the judgment of the Hon’ble Supreme Court in the case of Hind Constructions Contractors v. State of Maharashtra . The same judgment was also relied upon by the appellant before the State Commission. In our view the State Commission not only taking into consideration the judgment (supra) relied upon by the appellant but also the other judgments of Hon’ble Supreme Court especially in the case of Lucknow Development Authority v. M.K. Gupta , has clinched this issue. It needs to be appreciated that in the judgment of Hon’ble Supreme Court in the case of Lucknow Development Authority v. M.K. Gupta (supra), the Hon’ble Supreme Court was dealing with residential houses, which is the issue before us as well, whereas in the case of Hind Constructions Contractors v. State of Maharashtra (supra), the Supreme Court was dealing with the question of construction of an ‘aqueduct’. The Consumer Courts are designed to attend to the question of ‘deficiency’ in service. The word deficiency has been defined under Section 2(i)(g) of the Consumer Protection Act, 1986, which reads as under:
deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.
(Emphasis supplied)
5. After going through the facts as enumerated earlier, we are left in no doubt that when the appellant in view of the certain compulsions or market conditions or for any other reasons, unilaterally decided to reschedule the ‘delivery’ schedule of the concerned flat without the consent of the complainant, to the detriment of the complainant, it would amount to ‘deficiency’ in service for the simple reason that it will amount to delay in his obtaining a residential accommodation for himself and also seeing his money lying with the other parties for which he is not going to be benefited or rewarded at all. The crux of this issue is that could the appellant have changed the terms of agreement unilaterally? Answer to this question will be a big ‘No’. Thus delay in completing the construction and concomitant delay in delivery of possession of a residential house within the time-frame agreed to by the parties, shall be a clear case of deficiency in service. For this, we rely upon the judgment of Hon’ble Supreme Court in the case of Lucknow Development Authority v. M.K Gupta (supra)/ as reflected/ extracted in the order passed by the State Commission.
6. Two associated points are attempted to be made by the learned Counsel for the appellant firstly, that there was delay in making the instalment by the appellant. We see on record that payment schedule was to start from 15.11.1996 and after having paid the money under the head “on allotment”. All instalments due till 15.11.1997 were not only paid but paid ahead of the due dates. It is the crucial letter dated 2.11.1997 which broke the rhythm of further payments after the last instalment was paid, as attempt was made by the appellants to change the terms of agreement especially related to date of delivery of possession of the flat, unilaterally, which was not acceptable to the complainant. Payments made on 15.11.1997 were adjusted towards the instalment which was due on 15.1.1998 as per rescheduled ‘not-agreed-to’ payment of instalments. The letter dated 2.11.1997 threw in this spanner to break free movement/flow of funds/payments of instalment to the appellant. Since the appellant was not in a position to ‘roll-back’, to adhere to the terms and conditions of the agreement, and if the respondent/complainant did not make any payment of instalments, in these circumstances, i.e., after receipt of letter dated 2.11.1997, he cannot be faulted.
7. A side attempt is also made by the appellant that changes sought for in the flat would have necessarily entailed more time. We have very carefully gone through the proposed changes/modifications. We see nothing on record to state on the part of the appellant to the complainant that rescheduling of payment/ extension of time for delivery in exclusively relatable to these changes. In fact, the changes were suggested much earlier and the complainant has been paying instalments after that date. The crucial date is appellant or otherwise of the instalment after November 1997. Changes are no changes, as per original terms of the agreement, the appellant was obliged to deliver the possession by August, 1998. His failure to do so would amount deficiency in service which is precisely what has happened in this case. It is nowhere contended that the complainant/appellant was in a position to deliver the possession within the stipulated time. If for reasons not covered within the terms of the policy, the appellant was not able to complete the building in time, then appellant alone shall be held to be responsible for violation of the agreement for which he must pay damages, hi terms of the Consumer Protection Act. The complainant shall be entitled to compensation for deficiency in service. At this stage learned Counsel for the appellant wishes to rely upon Section 52 of the Indian Contract Act which reads as under:
Order of performance of reciprocal promises. Where the order in which reciprocal promises are to be performed is expressly fixed by the contract, they shall be performed in that order; and where the order is not expressly fixed by the contract, they shall be performed in that order which the nature of the transaction requires.
8. Since in this case, reciprocal promises were enshrined in the contract entered between the parties, both the parties were obliged to perform them in that ‘order’. The complainant in the instant case was paying instalment in time till the time he got the letter dated 2.11.1997 changing the whole order of things which were not acceptable to the complainant. Since both the parties, under Section 52 of the Indian Contract Act, were bound by the terms of the agreement entered into and signed by the parties, a unilateral decision to whittle down or modify the contract shall make the defaulting party accountable for rendering deficient services to the other party to the contract in this case the complainant.
9. In the aforementioned circumstances, like State Commission, we find that the appellant has been deficient in rendering service to the complainant/respondent.
10. In granting interest @ 18% p.a. we are supported by three thingsone, that as per law laid down by the Hon’ble Supreme Court in the case of Ghaziabad Development Authority v. Balbir Singh I (2004) CPJ 12 (SC), if the flat is not given then the rate of interest shall be @ 18% p.a. secondly, in the contract itself it is laid down that in case of delay of payment, the appellant was free to levy interest @ 18% p.a. reverse should also hold good, when the contract is silent on the point, and thirdly as brought on record through a letter of Indian Overseas Bank, dated 11.2.1999 had the complainant kept the money in Bank being an NRI, he would have earned the interest @ 18% p.a. In these circumstances, no interference in rate of interest @ 18% granted by the State Commission is called for. Since we have already held the appellant to be deficient in rendering service and since the appellant did enjoy that money for all the period for which it was lying with him, in our view, the complainant shall be entitled to this interest @ 18% p.a. from the date of respective deposits till the date of payment.
11. In the aforementioned circumstances, we see no merit in this appeal, which is dismissed.
12. Since the principle amount already stands paid vide our order dated 8.9.1999, the appellant shall make the payment of interest amount, as indicated above, within six weeks of passing of this order.