Abha Sinho vs ANSAL BUILDWELL LTD.

THERE is delay of one day in filing the revision petition. Though, an application for condonation of delay has not been filed, but in the interest of justice, we condone the said delay. On 31.5.1997, the complainants/petitioners, Mrs. Abha Sinho, Mrs. Vilas Bhushan, Dr. Vidya Bhushan and Mrs. Kum Kum Marwah booked a flat bearing F -242, Ground Floor, in the proposed project, named as Shalimar Residency, Sushant Lok -11, Gurgaon, Haryana, with M/s. Ansal Buildwell Ltd., the opposite party. Its price was fixed at Rs. 19,95,000 with discount of Rs. 50,000 for initial booking. The complainants were promised that they would get the possession of the flat within three years, i.e. by June, 2000. The complainants visited the site in February, 1999, but found that no flat was made at the site. The complainants vide letters dated 9.2.1999 and 20.4.1999, requested the OP to pay interest on their deposit, but those were not responded.

ON the pursuance of the OP, the complainants opted for some other flat in another Scheme of the OP, known as Royal Residency Floor, Sushant Lok -11, Gurgaon, Haryana, in September, 2000. By that time, the complainants had paid 85% of the total cost of the above flat, in the sum of Rs. 10,31,957. The price of the second flat was Rs. 13,75,000 with rebate. The OP had promised to pay the complainants interest @ 15% p.a., on advance payment and Rs. 30,000 as discount payable for initial booking. However, no possession was given till 18.3.2004. The complainants brought on record a letter dated 20.7.2001, written by OP to them, regarding Flat No. F -296/FF in Royale Residency Floors, Sushant Lok -11, which reads as follows: "You have already been given credit of interest amount for all excess period of instalment received against the said flat after deduction TDS amount as per rules under Income Tax Act vide our letter dated 25th September, 2000, which has also been confirmed to you vide our letter dated 3rd March, 2001.

The work of D.P.C. of the said flat; has been completed and an intimation of the next stage of construction i.e. completion of ground floor roof slab would be sent to you after completion of the same which is in progress. Please note the expected date of possession of the said flat is June, 2002".

HOWEVER , no possession was given till 14.3.2004. The complainants filed a complaint before the District Forum with the following prayers: "In view of the submissions made above, it is most respectfully prayed that the respondents may please be called upon to hand over the actual physical possession of the above mentioned flat bearing No. F -296 -FF in Royal Residency floors in Sushant Lok -11, Gurgaon, complete in all respects and refund the extra money with interest and adequately compensate the complainants.

Such other or further relief as the Hon''ble Forum may deem fit and proper may also please be afforded to the complainants for the present case demonstrates the highly and unscrupulous conduct of the respondents and for the malpractice adopted by them. The respondents are guilty of deficiency in service and unfair trade practices. The mental agony the complainants have suffered calls for exemplary damages for the unfathomable harassment and torture the complainants have undergone be meted out to the complainants in which two of them are senior citizens and a pensioner having invested their life long savings with respondents since about eight years by now, when normally the money doubles in about five years. And compensate them with adequate litigation costs".

THE main defence set up by the OP was that they had offered the possession time and again, but the complainants did not come forward to take over the possession of the premises in dispute. The District Forum vide its order dated 26.9.2008, rendered the following orders: "1. The OP will immediately handover flat No. 296 FF in Royal Residency Scheme in Sushant Lok, Gurgaon, to complainants/allottees, complete in all respects, after charging the balance amount of Rs. 3,12,336.

OP has caused mental agony and was deficient in service by not fulfilling its promises and has used the money of the complainants for several years and on this account the OP will pay a compensation of Rs. 15,00,000 from which the balance amount of Rs. 3,12,336 may be deducted.

OP will pay Rs. 20,000 towards cost of litigation to the complainant.

This order be complied within 30 days".

Aggrieved by that order, the OP filed an appeal before the State Commission. The State Commission modified the order of the District Forum and came to the conclusion that the possession of the flat would be given to the complainants only after they have paid the entire sale price. The District Forum ordered that they are yet to pay Rs. 3,12,336 and as such they were not entitled for any compensation. The complainants had agreed that, if for any other reason, there is - delay in handing over possession, no claim by way of damages, compensation, will lie against the OP.

WE have heard the Counsel for the parties. The learned Counsel for the respondent vehemently argued that they had offered the possession of the flat in Royal Residency Floor, vide their letter dated 7.6.2004. Its relevant para runs as follows: "We are pleased to offer you possession of your flat.

An up -to -date statement of account towards the price of the flat, electric connection charges, water/sewer and storm water connection charges, interest on delayed payment, wherever due, contingency deposit, registration fees and stamp duty charges, etc., are enclosed as per Annexure -I. All these charges are payable by A/c Payee demand draft within 15 days of the issuance of this letter".

This letter further mentions that the petitioner was to pay a sum of Rs. 4,40,970.90. This must be borne in mind that this letter was sent during the pendency of this case, before the District Forum. The complainants did not pay the amount as demanded by the OP, as the demand was on higher side.

THE learned Counsel for the OP further invited our attention towards second letter dated 5.1.2009 with the following subject matter: "Possession in terms of order dated 26.9.2008 of District Forum -VI in complaint No. 865 of 2004 filed by you and order dated 15.12.2008 of State Commission in the First Appeal No. 1012 of 2008 filed by us".

Revision petition was filed before this Commission in respect of interim application. The complainants wanted to pay the amount before this Commission as per the order rendered by the District Forum. However, we had restored the case and sent back the case to the State Commission. The possession was ultimately given after deposit of Rs. 3,12,368, on 18.4.2013. Learned Counsel for the OP argued that under these circumstances, no fault can be attributed to OP.

FOR the following reasons, we clap no significance to the arguments canvassed by the Counsel for the OP. Flat F -296/FF was allotted subsequently, after September, 2001. The Flat No. 242 -GF was booked on 31.5.1997. No headway was made for about three years. Terms of the flat were not handed over to the complainants. In a case titled as Samarth Associates Eng. & Builders & Ors. v. Ramesh Ramachandra Lokhande, RP No. 4729 of 2012, dated 10.9.2013, this Commission held as under: "7. The following deficiencies are apparent on the face of the record. First of all, it is not understood why the agreement was not executed at or about the execution of receipt of Rs. 25,000. In Belaire Owners'' Association v. DLF Ltd. & Ors., Case No. 19/2010, vide supplementary order dated 3.1.2013, the Competition Commission of India, held:

"31. The terms of the agreement to be entered into with the allottee were never shown to the allottee at the time of booking of the apartment. These terms and conditions of the agreement were prepared and framed by the company unilaterally without consulting the buyer. Once the company had already received considerable amount from the applicants/buyers, this agreement was forced upon the allottees and the allottee had no option but to sign the agreement, as otherwise the agreement provided for heavy penalties and deduction from the money already deposited by the allottees with the company, which itself was an abuse of dominance. The appropriate procedure would have been that a copy of the agreement which DLF proposed to enter with the allottee should have been made available to the applicants at the time of inviting applications".

AGGRIEVED against the order of this. Commission, dated 10.9.2013, Special Leave to Appeal (Civil) Nos. 36667 -68 of 2013, with the same cause title (Samarth Associates Engineers & Builders & Ors. v. Ramesh Ramachandra Lokhande), was filed before the Hon''ble Apex Court. The Hon''ble Apex Court, vide its order dated 16.12.2013, dismissed the same. It is not explained as to why did the OPs withheld the money of the complainants, for such a long time, without any rhyme or reason. No compensation was given for those four years. Though, in the agreement, it was stated that the Petitioner would not compensate for the delay, yet, vide letter dated 25.2.1999, it was clearly, specifically and unequivocally mentioned by the OP, as under: "Dear Sir,

This has reference to your above said letter and noted the contents therein. Kindly note that interest @ 15% on all instalments paid in advance shall be credited to your account after deduction of TDS, etc.

Thanking you,

Yours faithfully,For ANSAL BUILDWELL LTD.Sd/ -P. VARSHNEY/DY. GENERALMANAGER".

Was this letter written in order to lead the complainants, up the garden path?

SECONDLY , we come to the offer letter dated 7.6.2004. Apparently, this was not a correct demand. Both the Fora below have come to the conclusion that an amount of Rs. 3,12,336 was recoverable but the OP demanded a sum of Rs. 4,40,970.90, that too, during the pendency of this case. Consequently, we pin no value with such like offer. In view of the orders passed, subsequently, by the Fora below, its demand letter pales into insignificance and has to be eschewed out of consideration.

AT the time of admission, the State Commission Bench presided over by Justice J.D. Kapoor, passed the following order, on 15.12.2008: "FA -08/1012

Merely on the allegations that the appellant withheld possession of the flat for non -payment of Rs. 1,06,793 against the total consideration of Rs. 11,38,750 which too is disputed by the appellant, the District Forum has vide order dated 26th September, 2008 directed the appellant to handover the possession of the flat after charging Rs. 3,12,338 as admitted by the appellant and also to pay Rs. 15 lacs as compensation, appeal is admitted but subject to deposit of Rs. 5 lacs towards compensation amount including statutory deposit. So far as direction to handover the possession is concerned, learned Counsel undertakes to handover the possession against payment of Rs. 3,12,338 within one month. Appeal is admitted in respect of the compensation awarded by the District Forum.

Re -list on 30.1.2009".

Subsequent order passed by the State Commission, on 11.3.2013, reads as follows: "FA -1012/8

During the course of the argument, it is revealed that State Commission vide order dated 15.12.2008 has directed the appellant to pay Rs. 5 lakh towards the compensation and also hand over the possession of the flat in dispute to which the Counsel for the appellant also agreed and has given an undertaking. By this order, it is also directed that the respondent shall pay Rs. 3,12,338, but it is very strange that more than 4 years have gone, this order has not been complied with. Now it is prayed by the Counsel for the appellant that 30 days'' time be given to make the flat in question habitable and on the expiry of 30 days, the flat shall be handed over to the respondent. The respondent states that he is ready to pay the amount of Rs. 3,12,338 and has shown the DD for this amount to us.

Put up on 15.4.2013 for further hearing and before this date, the appellant shall hand over the possession to the respondent as directed above. It is made clear that the DD of Rs. 3,12,338 shall be handed over to the appellant at the time of possession only and not before this".

[Emphasis supplied]

It is thus crystal clear that the flat in question was not ready/habitable till 11.3.2013. The possession was given on 18.4.2013.

THE offer was made on 7.6.2004. There is a lot of difference between 31.8.1997 to the years 2004, 2009 and 2013. The prices of the land have increased by leaps and bounds. It is not difficult to fathom, why did the OP adopt a Fabian policy?, certainly, to feather its own nest, i.e., to make profits at the expense of others. Shalimar Residency floors were never made the headway towards its project. They should have worked against the clock. For the said twelve years, no lucid explanation is forthcoming.

THE Hon''ble Apex Court in KA. Nagamani v. Housing Commissioner, Karnataka Housing Board, Civil Appeal Nos. 6730 -6731 of 2012, dated 19.9.2012, gave 18% interest to the consumer due to non -possession of the premises in dispute. It must be borne in mind that the OP has itself stated in no uncertain words that it will pay interest @ 15% p.a. to the complainants on the delay. The prices have escalated more than ten times, since then. The complainants could get the fruit of their hard earned money only after sixteen years. Consequently, the order passed by the District Forum cannot be faulted. It is, therefore, ordered that order passed by the District Forum be complied with within 90 days from the receipt of this order, otherwise, it will carry interest @ 18% p.a., till its realization. The revision petition stands disposed of.