ANSAL HOUSING AND CONSTRUCTION LTD vs V B Gautam

THESE two revision petitions (R.P. Nos.3909/2011 and 506/2012) have been filed by Dr.V.B. Gautam (hereinafter referred to as the ''Petitioner '') and M/s Ansal Housing & Construction Ltd. (hereinafter referred to as the ''Respondent '') being aggrieved by the order of the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the ''State Commission '') in Appeal No.830/2009. Since the parties and the facts are similar in both cases, we propose to dispose these of by a single order by taking the facts from R.P.No.506/2012.

IN his complaint before the District Forum, Petitioner/Complainant had alleged that he had booked a residential flat on 13.03.1992 under an SFS Scheme of the Respondent at a total cost of Rs.4,99,000/- and after payment of advance money, he was forced to sign an agreement with arbitrary clauses following which Flat No.804, Block-9, Abhilasha Apartment was allotted to him. Petitioner continued to pay towards the cost of the flat including Rs.57,867/- as demanded by the Respondent vide letter 20.12.1996 and requested Respondent vide letter dated 01.01.1997 to complete necessary formalities to enable him to get possession of the flat but there was no response to this letter and instead, Petitioner received a fresh demand for Rs.93,864/- towards escalation charges and Rs.867/- as outstanding due. Petitioner thereafter filed a civil suit for redressal of his grievances in which Court directions were issued to the Petitioner to deposit the total amount of Rs.94,511/- due from him after which Respondent was directed to hand over the possession of the flat to the Petitioner and execute the Sale Deed in Petitioner ''s favour, which Respondent failed to do. Subsequently, the possession of the flat was handed over to the Petitioner with Police assistance. On taking possession of the allotted flat, Petitioner found that extensive damage had been done to it i.e. electrical fittings were destroyed, wash basin, sinks and commodes removed and the walls were also damaged. Petitioner, therefore, again approached the Respondent for necessary repairs and providing essential services in the flat as also to execute registration of the Sale Deed. However, neither was any repair done nor was the Sale Deed executed in Petitioner ''s name. Being aggrieved, Petitioner filed a complaint before the District Forum on grounds of deficiency in service and requested that the Respondent be directed to pay him damages amounting to Rs.11,30,000/-, to carry out necessary repairs in the premises to make it habitable and also to provide all necessary services i.e. water, electricity, maintenance as per existing standards. Litigation costs and other reliefs as deemed appropriate were also sought to be paid. Respondent in response stated that while it is a fact that in terms of the directions of the Civil Court, Ghaziabad, possession of the flat was handed over to the Petitioner but since Petitioner had not paid the entire amount to the Respondent, it was justified in not executing the Sale Deed in favour of the Petitioner. It was further denied that any damage was done to the flat and that essential services were not made available.

THE District Forum after hearing the parties allowed the complaint and passed the following order: "OP will register sale deed in favour of the complainant as per agreement for which the expenses will be borne by the complainant and the Complainant will pay Rs.867/- to the OP. OP should put the flat in perfect condition including woodwork, kitchen and bathroom repairs, electrical fittings etc. On account of delayed possession of the flat, mental agony and harassment, OP will pay Rs.1,00,000/- to the complainant as compensation. OP will be pay Rs.10,000/- to the complainant. "

AGGRIEVED by this order, Respondent filed an appeal before the State Commission which partly allowed the same by setting aside the directions of the District Forum to the Respondent to remove the defects in the flat. The relevant part of the order of the State Commission is reproduced: "The order passed by the District Forum that the OP builder should be asked to get the sale deed registered in the name of the complainant is justified, because the possession of the flat has already been granted by the Civil Judge to the complainant, and the complainant is therefore naturally entitled to obtain a registered sale deed of the same. The contention of the OP builder that the complainant is not entitled to get the registered deed because the payment of the remaining amount has not been made. It will appear from what has been said above, that amount has already been deposited in the appeal filed by the complainant, and the OP Builder can withdraw the amount from there. The District Forum has already directed the payment of small remaining amount of Rs.867/-, which was left out outstanding. As regards the direction given by the District Forum that the OP builder should be directed to get the flat repair, no particular details of damages and the required repairs have been given, nor has it been indicated in the complaint, as to what amount would be spent on each item. No report of any civil engineer about the same, has been filed it is therefore not possible for the Forum to pass any order with regard to repairs. The order about the same passed by the District Forum is vague and unenforceable which therefore needs to be set aside. The appeal is therefore partly allowed and the OP builder is directed to get the sale deed of the flat registered in the name of the complainant and to pay amount of compensation and costs within 30 days from the date of receipt of this order. The order of the District Forum directing the OP to repair the flat is set aside. In case the OP builder fails to get the sale deed registered within give time the complainant may apply for getting the sale deed registered through District Forum. Costs of this appeal is made easy. "

Aggrieved by this order, both parties have filed separate revision petitions before this Commission. Petitioner in-person and Counsel for Respondent made oral submissions. Petitioner contended that the State Commission erred in setting aside the order of the District Forum directing the Respondent to repair the flat on the grounds that no evidence of same had been produced by the Petitioner including on the extent of repairs required as also costs. Petitioner contended that he had adduced adequate evidence including photographs showing lack of facilities as well the repairs required, before the District Forum. Petitioner also requested that the State Commission erred in concluding that a balance amount of Rs.867/- still remained to be paid and as proof he produced a Treasury Challan indicating that he had paid the entire amount including Rs.867/-. It was further prayed that the compensation amount of Rs.1 lakh awarded by the Fora below be significantly enhanced keeping in view the long years of mental and physical harassment caused to him.

COUNSEL for Respondent on the other hand contended that it was justified in not executing the Sale Deed since admittedly Petitioner had not paid the escalation charges as well as certain dues in time and escalation charges were paid only after a directive from the Civil Court on 25.05.2001. Therefore, there was no case for awarding compensation to the Petitioner by the Fora below. Counsel for Respondent further contended that the State Commission had rightly observed that there was no evidence of any damage or lack of essential services in the premises and rightly set aside the order of the District Forum in this connection which needs to be upheld. It was further contended that the State Commission had failed to address his submission that this case was not admissible on the principles of res judicata since the case has already been taken up and decided by a Civil Court. We have heard learned Counsel for both parties and have gone through the evidence on record. At the outset, we do not accept Counsel for Respondent ''s contention that the case is not maintainable on the principles of res judicata. This issue is well settled by a number of judgments of this Commission as also of the Hon ''ble Supreme Court including in Secy., Thirumurugan Coop. Agricultural Credit Society Vs. M. Lalitha - (2004) 1 SCC 305 wherein it has been held that as per Section 3 of the Consumer Protection Act, the provisions of the Consumer Protection Act shall be in addition to and not in derogation of any other provisions of any other law for the time being in force. In other words, this Section provide an additional platform to a consumer for seeking relief as in the instant case. It may also be noted that in the instant case even after the premises had been handed over to the Petitioner with the help of the Police as per directions of the Civil Court, Petitioner still had certain grievances; namely, damage to the property, lack of essential services and also the fact that the Sale Deed had not been executed by the Respondent. Therefore, Petitioner was well within his rights to seek redressal of his grievances before this Commission on grounds of deficiency in service. We, however, agree with the finding of the State Commission that no credible evidence has been filed by the Petitioner to prove that the flat allotted to him needed extensive repairs and uphold this part of the order of the State Commission. The State Commission had concluded that since Petitioner has deposited the entire amount due which included the escalation charges as well balance amount of Rs.867/-, it directed the Respondent to get the Sale Deed registered within 30 days. Petitioner has shown us proof of his having made this payment in the Treasury by producing the Challan and we, therefore, uphold the order of the State Commission and direct the Respondent to execute the Sale Deed within 30 days. Respondents are at liberty to get released the amount deposited in the Treasury in this case. However, in view of the fact that Petitioner had erred in making payment of the amount due within the scheduled timeframe, we feel that a compensation of Rs.1 lakh awarded to the Petitioner by the District Forum and upheld by the State Commission is on the higher side and it would be reasonable and justifiable to reduce this amount from Rs.1 lakh to Rs.30,000/-. However, litigation costs of Rs.10,000/- awarded by the District Forum and upheld by the State Commission are maintained.

TO sum-up the revision petitions are partly allowed. Respondent is directed to execute Sale Deed in favour of the Petitioner within 30 days from the date of receipt of this order. Respondent is at liberty to get released the money deposited in the Treasury by the Petitioner. The order of the State Commission regarding compensation is reduced from Rs.1 lakh to Rs.30,000/- which shall be paid by the Respondent to the Petitioner within 4 weeks from the date of receipt of this order along with litigation costs of Rs.10,000/-. Both revision petitions are disposed of on the above terms.