Kunj Behari Mehta & Anr. vs Ansal Properties & Industries … on 12 May, 2008

  
 
 
 
 
 
 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
  
 
 







 



 

NATIONAL CONSUMER DISPUTES REDRESSAL
COMMISSION 

   NEW DELHI.

 

  

 

   

 

  ORIGINAL PETITION NO. 
190 OF 2000 

 

   

 

  

 

Kunj Behari Mehta & Anr.   Complainants  

 

  Versus 

 

Ansal Properties & Industries Ltd.  Opposite
Party 

 

  

 

  

 

 BEFORE: 

 

  

 

 HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT. 

 

 HONBLE MR. ANUPAM DASGUPTA, MEMBER.  

 

  

 

  

 

For the Complainant  Mr. S.K. Dholakia, Sr. Advocate 

 

 With
Mr. Rajesh Lathigara, Advocate  

 

  

 

For the Opposite Party  Mr. Avtar Singh, Advocate.  

 

  

 

   

 

 Dated:   12th MAY, 2008  

 

   

 

 O R D
E R 

 

   

 

   

 

 JUSTICE M.B. SHAH, J., PRESIDENT 

 

  

 

 Can
a builder after agreeing to deliver the possession within a stipulated time, raise a contention
that as the price of the flat/property
has gone up, it should not be directed to pay any compensation or to pay
compensation at reduced rate for delay
in delivering the possession of the
property?  

 

  

 

 In
our view such
contention of any builder is unjustified and unreasonable because after sale of
the property all the benefits accrue to the purchaser and not to the
vendor. In any case, if such contention is accepted, the builders/contractors would earn
crores of rupees by delaying the
delivery of the possession of the
flat/property for months together for
one reason or the other.  

 

  

 

 Facts

:

The
Complainants have approached this Commission on 3rd May, 2000 with a
prayer that the Opposite Party Ansal
Properties & Industries Ltd., be directed to deliver possession of
apartment No.502, on 5th
floor, E Block, Celebrity Homes and also to pay interest @ 24% per annum
on Rs.26,26,790/-, i.e., the
amount deposited by them with the
Opposite Party, w.e.f. 10.10.1998 till
the date of delivery of possession.

In the alternative, they have
prayed that if the Opposite Party, is unable to deliver the
possession of the apartment, then the Opposite Party be directed to refund the
amount of Rs.26,26,790/- to the
Complainants with interest @ 24% from
the date of payment of the instalment till the date of actual realization from the
Opposite Party.

On the said complaint,
on 19th December, 2000, this Commission had issued
notice to the Opposite Party. However,
the matter remained pending on one ground or the other. When it came up for hearing on 7th December, 2007, the matter was adjourned so as to enable the parties to explore the
possibility of a compromise. On that date it was agreed by the
Complainants that they would deposit Rs.5,58,000/- with the Registrar of this Commission on or before 12th December,
2007 and the Opposite Party would
deliver the possession of the flat to
the Complainants on or before 19th December, 2007. This agreement was without prejudice to the
contentions raised by both the parties before this Commission. It was also pointed out by the learned
counsel for the
Opposite Party that while calculating the amount of
Rs.5,58,000/-, the Opposite Party had
not considered the maintenance charges which were required to be paid by the
Complainants from the date of offer
of possession, i.e., from September, 2003 and, hence, that issue
be kept open for arguments at the time of final hearing. Order was passed accordingly.

Again, when the
matter came up for hearing on 30th April, 2008, the learned counsel appearing on behalf of
the Complainants submitted that for unjustified
delay in delivering the
possession of the apartment from 10th October, 1998 till 20th December,
2007, the Opposite Party should be directed to pay interest @ 24% per annum on
the amount deposited by the Complainants.
Further, reliance was placed on the receipt dated 3rd
September, 1996 and covering letter
dated 28th August, 1996 to the effect that interest @ 17% per annum would be payable by the Opposite Party on all advance deposits
provided the entire payment is made in one go. On that basis , the
Complainants deposited the 6th,
7th, 8th and 9th instalments for which receipt was issued by the Opposite Party on 3rd September, 1996. On that receipt, it was specifically
mentioned, This payment is to confirm that the 6th, 7th,
8th and 9th instalments are made in advance and 17%
interest would be allowed.

For verification
of the said letter and the receipt, time was given to the learned counsel for the Opposite
Party. At the time of hearing, learned
counsel for the Opposite Party did not dispute the said letter or the
receipt.

With this
background, we would refer to the agreement executed between the parties with
regard to sale of the apartment which was to be constructed by the Opposite
Party. The agreement is dated 2nd March, 1995. As per the said agreement, the
Opposite Party was to construct the Celebrity Homes, Palam Vihar with certain specifications as provided therein and the Complainants were required to the pay
basic sale price of Rs.28,38,000/-,
external development charges of Rs.89,870, charges of Rs.1,00,000/- for
car parking space in the basement, and club membership fee of Rs.20,000. The basic sale price was to be paid in instalments from 9th April, 1995 to 9th December, 1997. It was also agreed that at the time of
delivery of possession 5% of the basic price, i.e.,
Rs.1,41,900/- was to be paid by the Complainants.

As per Clause
13, the Opposite Party had agreed that the possession of the said
premises, Phase-1, was likely to be
delivered by the Company to the
Apartment/Penthouse/Garden Allottee
within three and half years from the date of booking, subject to force majeure circumstances and on
receipt of all payments punctually as per agreed terms, and also on receipt of complete payments of
the basic sale price and other charges due and payable upto the
date of possession.

As some extra
construction was made, the Complainants were required to pay a higher basic sale
price at Rs.29,88,800. Out of that, the
Opposite Party received Rs.25,29,770/-. That amount was paid by the Complainants
before October, 1997.

It is also
agreed that the Complainants were required to pay extra development charges
amounting to Rs.4,140/-, electric connection charges of Rs.2,35,000/- as well
as fire fighting charges amounting to
Rs.29,688/-, stamp duty and registration charges at Rs.6,000/-.

For the
aforesaid facts, there is no dispute between the parties.

The question which requires consideration is how much compensation is to be awarded to the
Complainants for the delay in construction and delivery of possession?

As stated above,
possession of the premises was to be delivered within 3-1/2 years from the date
of agreement, on
payment of the due instalments regularly.
It is not disputed
that the Complainants had paid the entire amount before October,
1997. The agreement between the parties was executed
on 2nd March, 1995. If the period of 3-1/2 years is taken into
consideration, then the Opposite Party
was required to deliver the possession on or before 10th October, 1998.

However, the
Opposite Party was actually
required to be directed by this Commission to deliver the possession in
December, 2007 and consequently, the possession of the apartment was delivered
only on 20th December, 2007(as against 10th October,
1998).

The learned counsel appearing on
behalf of the Opposite Party submitted
that the Opposite Party had written a
letter to the Complainants on 2nd August, 2003 and informed the Complainants that the Opposite Party had immense pleasure in forwarding the formal letter as Offer of Possession and welcoming the Complainants to Celebrity
Homes an important Land Mark of Palam Vihar.
The Opposite
Party produced on
record a copy of the said letter.

As against this,
it is contended by the learned counsel for the Complainants that the said letter was sent to a wrong address,
because before the date of the said letter the Complainants had shifted
and the letter was received back by the Opposite Party.
The learned counsel further contended that knowing full well that the
complaint was filed on 19th December, 2000, no such offer of possession
was made before this Commission, in the
present proceedings. He submits that this was a fraud committed by the Opposite Party. He, therefore, contended that the Opposite
Party should be
directed to pay compensation and the measurement of the compensation should be
grant of interest, if not @ 24% p.a. as
prayed, at least, @ 17 % per annum as agreed by the Opposite
Party in its own letter dated 28th August, 1996 and the receipt dated 3rd September, 1996.

As against this,
the learned counsel appearing
on behalf of the Opposite Party submitted that in such cases, there was no
question of awarding interest @ 24% or 17%
because the Opposite Party had already delivered the possession of the flat and the value of the said flat had increased due to the increase in the price of the
property.

The learned
counsel for the Complainants contended that the Opposite
Party was charging interest @ 24% per annum, on delayed
payments, and, therefore, it should be directed
to pay compensation at the said rate, and, in any case @ 17% per annum.

In
our view, the contention that
there is increase in the price of the property and, therefore, compensation for such inordinate delay in delivery of possession should not be
granted, is totally misconceived. If
the price of an
immovable property increases, it cannot be said that the parties
are not required to abide by their contractual obligations. In any case, it is the luck of the Complainants
that the price of the property has
increased and it cannot be said that it is for the benefit of the vendor. The builder/vendor of the property cannot claim advantage
on account of increase in price after sale.
Hence, this contention is totally unreasonable and unjustified.

Further, an Application dated
7.11.2006 was filed before this
Commission, stating therein that the
Complainant, namely, Kunj Behari Mehta,
came to India on 29.9.2006 and visited the flat on 1.10.2006 and came to
know that the Opposite Party had given possession of adjoining flats, namely, E-501 and E-503. He, therefore, met the Manager at
site who informed that his flat No.E-502 was ready for possession for quite some time. However, the Manager expressed his inability to show the
flat in question as the same was occupied by the contractor of the Opposite
Party, and, at that
time, the flat was locked. Thereafter, the complainant No.1 went to the Head Office of the
Opposite Party and contacted the Manager-Sales and
requested him to hand over the
possession of the flat in question. The
Manager, roughly and curtly,
replied, Go to the Court and
get its possession through the Court.

These facts are not denied by the Opposite Party.

Considering the
aforesaid facts, in our view, the Opposite Party is required to pay compensation
for unjustifiably not delivering the possession of the flat as
per the agreement in October 1998 till December, 2007.

In our view, the
ends of justice would be met if, for this unjustified delay, we direct the Opposite Party to pay interest
@ 12% per annum from 1st
November, 1998 till 1st December, 2007 on the amount deposited by
the Complainant upto 1st November, 1997 i.e. in all
on a sum of Rs.25,29,770/-.

Further, for the
high-handed and rough behaviour of the Manager of the Opposite Party, the
Opposite Party shall pay compensation of Rs.50,000/-. This amount shall be deposited with this
Commission by way of bank draft drawn in the name of the Registrar
of this Commission which shall be transferred
to the Consumer Legal Aid Account maintained by this Commission.

In the result,
the complaint is partly allowed. The
Opposite Party is directed to pay interest @ 12% per annum
from 1st November, 1998 till 1st December, 2007 on
the amount deposited by the Complainant upto 1st November,
1997, i.e., in all
on the sum of Rs.25,29,770/-. It would be open to the Complainants to withdraw the amount of Rs.5,58,000/-
deposited with this Commission and the Opposite Party after adjustment of the
said amount of deposit, shall pay the remaining
amount on account of interest to the
complainants within four weeks
from today. There shall be no order as
to costs.

Sd/-

.J.

(M.B. SHAH)

PRESIDENT

Sd/-

.

(ANUPAM DASGUPTA)

MEMBER