Kusum Agarwal & Anr. vs M/s Harsha Associates Pvt. Ltd.

Leave granted. 2. The respondent was building an office complex and issued anadvertisement "Commercial space in Harsha Commercial Complex"to be constructed on Plot No.1, Local Shopping Centre, Gazipur,Delhi. The appellants who are the husband and wife jointly appliedfor one shop in the Complex which was offered to them by therespondent for a total consideration of Rs. 4,80,000/-. Pursuant tothis, an agreement was entered into between the parties on25.01.2004, whereby one shop was agreed to be sold to theappellants for a total consideration of Rs. 4,80,000/- to be paid ininstallments. 3. On 06.12.2004, the respondent wrote a letter to appellant no.1informing her that the shop is ready, requested the appellants topay the balance amount of Rs. 2,75,000/- and maintenance chargesetc., i.e. a total amount of Rs. 3,16,930.96/-on or before15.12.2004. According to the appellants, though they were ready topay this amount the shop was not handed over to them. Theappellants sent a letter to the respondent on 19.04.2005 informingthe respondent that Rs. 2,05,000/- had already been paid and theyare ready to take possession of the shop and pay the balanceamount. Since possession of the shop was not delivered, theappellants filed a complaint before the District Consumer DisputesRedressal Forum, Delhi (for short `District Forum''). Defence takenby the respondent was that the appellants were not ready andwilling to pay the balance amount and, therefore, their amount hadbeen forfeited. The District Forum directed the respondent tohandover the possession of the shop to the appellants on paymentof the balance amount of Rs. 2,45,000/- with interest @18% perannum from 28.03.2004 till the date of delivery of the possessionalong with other sundry charges. Thereafter, the appellants issuedcheques for these amounts but the possession of shop was notdelivered. 4. The respondent filed an appeal before the State ConsumerDisputes Redressal Commission, New Delhi (for short `the StateCommission'') and during the course of appeal it was disclosed bythe respondent for the first time that the shop in question hadalready been sold prior to December, 2004 when letter was writtento the appellants. The State Commission noticed thatRs.1,95,000/- had been paid earlier and Rs. 10,000/- had been paidlater and, therefore, directed the repayment of this amount within aperiod of one month. No interest was awarded and the appellants,therefore, filed revision petition before the National ConsumerDisputes Redressal Commission, New Delhi (for short `the NationalCommission''). The National Commission did not decide the matteron merits but held that the space was a commercial space and,therefore, the appellants were not consumers and dismissed thepetition. 5. At the outset, we may notice that this was not a defence raisedby the respondent either before the District Forum or before theState Commission. In fact, the respondent had not even challengedthe order of the State Commission. In our view, the NationalCommission, in a revision petition filed by the complainant prayingfor increase of compensation and payment of interest, could nothave dismissed the petition itself. We, therefore, set aside the orderof the National Commission. 6. As far as the merits are concerned, the conduct of therespondent clearly shows that he had not come to court with cleanhands. In fact, in December, 2004 when a letter was written to theappellants offering them the commercial space in question, thesame had already been sold to someone else. It would also bepertinent to mention that before the District Forum statement hadbeen made by the counsel for the respondent that the shop inquestion was lying vacant and, therefore, the District Forum hadpassed the directions mentioned hereinabove. Later, it was statedthat this statement had wrongly been made by the counsel due tomis-communication. The fact remains that the shop booked by theappellants was sold to another customer on 04.11.2004, evenbefore the letter dated 06.12.2004 was sent to the appellants. It is,therefore, a clear-cut case of deficiency in service by therespondent. 7. In view of the above, the appeal is allowed. Judgment of theNational Commission is set aside and the respondent is directed torefund the amount of Rs. 2,05,000/- , along with damages ofRs.50,000/-, i.e., Rs. 2,55,000/- in all along with interest @18% perannum payable from 06.12.2004 till payment of the entire amount. 8. The appeal is disposed of in the above terms.