ANOOP K JOSHI vs Ansal Properties and Industries Ltd

APPELLANT was the complainant before the State Commission, where he had filed a complaint against the respondent M/s. Ansal Properties and Industries Ltd. , alleging deficiency in service on the part of the latter.

UNDISPUTED facts of the case are that the appellant/complainant had booked a flat with the respondent under the project known as ''neelpadam Apartments - II'' for which initial amount of Rs. 57,750 was deposited and a residential flat No. 607 was allotted to the appellant, but since it measured only 1050 sq. ft. and the appellant was keen to have larger flat, on his request, the appellant/complainant was allotted flat No. 601 having an area of 1410 sq. ft. subject to payment of the differential amount of Rs. 1,56,960. As per the complainant, he had paid, by 31. 7. 1996, Rs. 7,30,032 being 95% of the cost of the flat; balance 5% was to be paid at the time of handing over the possession. It is admitted position that the respondent offered the possession of the flat vide letter dated 5. 3. 1996 and also demanded a sum of Rs. 4,75,547. 50, which was inclusive of the escalation charges. After receipt of letter dated 5. 3. 1996, the appellant visited the site and found that there was no ''lift'' in Block A to take him to his 6th Floor flat. Appellant took up this matter with the respondent but the ''lift'' was not provided despite assurances. As late as in March 1998, that lift in Block A had not been provided. It is in these circumstances, a complaint was filed before the State Commission with the following prayer: "1. The opposite party be directed to hand over the possession of the flat along with all services and facilities including lift in Block A. 2. The opposite party be restrained from demanding escalation charges. 3. The opposite party be res-trained from raising any claim towards interest, charges levies, or cost from the complainant for the period from March, 1996 (when the intimation for alleged completion of flat was sent to the complainant) till the date of actual possession with all facilities and services including lift in Block A. 4. The opposite party further ordered to pay liquidated damages by way of interest @ 24% per annum from 31st July, 1996, when 95% of the cost of flat stood paid till the date of possession as aforesaid. "

The matter was contested by the opposite party. The State Commission after hearing the parties and holding the respondent deficient in rendering service, passed the order in following terms: "it is, therefore, directed that O. P. shall pay interest @ 12% p. a. on the deposited amount from 5. 3. 1996 (when possession was offered without complete amenities to the complainant) till the date of actual possession, i. e. , 11. 8. 2000. Since interest has already been awarded double benefit of compensation cannot be conferred on the complainant. However, the complainant is entitled to the cost of proceedings which is fixed at Rs. 5,000 to be paid by the O. P. to the complainant. The above directions be complied with by the O. P. within 45 days of the receipt of this order failing which the complainant shall be at liberty to file appropriate application under Sections 25/27 of the Act for implementation of this order. " not satisfied with this relief this appeal has been filed by the appellant/complainant before us.

We heard the learned Counsel for the parties at some length. It is not disputed that vide letter dated 5. 3. 1996, the amount demanded was Rs. 4,75,547. 50. This admittedly was deposited by the appellant/complainant. The prayer of the appellant/complainant is that while the respondent is entitled to escalation charges as also charges on account of various ''services'' and others, but he is not entitled to levy interest @ 24% amounting to Rs. 2,50,508, break-up of which is as follows: "b. Interest on account of alleged delay : Interest on instalment allegedly due on 1. 4. 1991 16,368. 00 Other interest 1,770. 00 Alleged delay from 25. 3. 1996 to 24. 6. 2000 2,32,370. 00"

AFTER hearing the parties and perusal of material on record, we are satisfied that admittedly the delay in providing lift upto the 6th floor, is a clear case of deficiency in service, on the part of the respondent/opposite party. If we see correspondence and letters from the respondents to the appellant dated 6. 2. 1997 and 30. 3. 1998, the respondent still only is ''assuring'' and ''promising'' to provide the ''lift'' but no lift was provided till the date of filing of the complaint. In fact, as observed by the State Commission in its order that respondent''s plea to use of lift in Block B is not sustainable for two reasons; firstly, it is not in Block A and secondly, it stops only that the 5th and 7th floor and not at the 6th floor. Any user of flats, not being serviced by the lift, would know the consequence of such a situation. It is a clear case of deficiency in service on the part of the respondent and the same rightly held by the State Commission and has not been challenged by the opposite party. In our view, if the basic amenity to reach up to the flat to the allottee is not provided and yet to expect him to take the possession of the flat, does not stand our scrutiny. We are further strengthened in our view, that even when ''final-call-notice'' was issued by the respondent, as late as 5. 3. 1996, break-up of which is given at page 64 of the paper book. Its para 7 which deals with ''interest on delayed payment'', which is completely blank, meaning thereby that as per the respondent himself, there was no delay in making the payments and nothing was due as on 5. 3. 1996. The appellant was directed to pay the demanded amount vide letter dated 5. 3. 1996 upto 31. 3. 1996 but as per material on record these payments were made after 31. 7. 1996, hence there has been delay of 3 months in making the payment on the part of the appellant. The respondent will thus be entitled to interest for delayed payment for these three months on the amount of Rs. 4,75,547. 50. only. Learned Counsel for the respondent also argued that since the appellant has already been granted interest @ 12% p. a. on the deposited amount by the State Commission, grant of prayed for relief would amount to ''double benefit'' in favour of the appellant. We see no merit in this plea for the simple reason that in our view, respondent was not entitled to any interest for the delayed period, as it is on account of their deficiency that the appellant could not take possession. As far as relief granted by the State Commission is concerned, it has been granted for the simple reason that the respondent enjoyed this amount for that period and this is as per law laid down by the Hon''ble Supreme Court in similar cases.

IN the aforementioned circumstances when there has been no delay in payment of instalments, which is corroborated by their own letter dated 5. 3. 1996 and since, the appellant could not be expected to take possession when the basic amenity was not available, hence in our view, charing of interest of amount of Rs. 2,50,0508 cannot be sustained. Since this amount has been paid by the appellant to the respondent, the respondent is directed to refund this amount after deducting interest for the period of three months on Rs. 4,75,547. 50. The appeal is allowed to this extent and the order of the State Commission stands modified to the extent indicated above. The due payment shall be made by the respondent to the appellant within a period of 6 weeks from the date of passing of this order, failing which he shall be free to proceed under Sections 25/27 of the Consumer Protection Act, 1986. The appeal is stands disposed of in above terms. Appeal disposed of.