LALIT KUMAR GUPTA And AJAY KUMAR GUPTA vs D.L.F. UNIVERSAL LTD.

THESE two cross-appeals arise from the same order passed by the State Commission allowing the complaint of the appellant in F.A. 88/1999 against the appellant in F.A. No. 345/2001.

FACTS of the case are that the complainant, Shri Lalit Kumar Gupta and Ajay Kumar Gupta had booked a country club house with the respondent, D.L.F. Universal Ltd. in July, 1990 for which an agreement was entered into by the parties, payments which were to be made in instalments were made from time-to-time as per schedule; whenever there was delay in payment, instalments were paid alongwith penal rate of interest. As per agreement, possession of the dwelling unit was to be delivered within three years of the agreement. It appears that in the interregnum period the allotment was once cancelled for non-payment, but this was restored on due payment being made. Instead of delivering the possession within three years i.e. by July, 1993 the possession was given only on 21.7.1996 i.e. after a delay of three years. In between there were certain price escalation as well which was paid by the complainant under protest. Alleging deficiency on the part of the respondent, D.L.F. Universal on account of delayed delivery of possession contrary to the terms of agreement, as well as charging escalated cost, the complainant filed complaint before the State Commission praying for several reliefs. The State Commission in its order while allowing the complaint directed the respondents to pay interest @ 20% on the deposited amount for the period of delay in handing over the possession and cost of Rs. 5,000/-. It is against this order that two separate appeals have been filed by both the parties before us. Three main points have been raised by Mr. Aditya Narain, learned Counsel for the appellant. Firstly, that they did not get any opportunity before the State Commission to argue their cases depriving them of their basic right to assist the Court by bringing full facts of the case. The State Commission filed certain dates but they have not given an opportunity and order was passed behind their back. Secondly, as per Clause 17 of the agreement even though three years'' period was mentioned for delivery of possession, but there were provisions on account of which respondent could not be held responsible if there was to be a delay in possession. According to the respondent, complainant was erratic in making payment of instalments. Once, the respondent was compelled to cancel the allotment on this account, but was later restored. Possession of the flat was first offered on 10.10.1994, it was the complainant who did not take the possession. For any delay the fault lies with him and thirdly, rate of interest granted by the State Commission is very high.

Since the order by the State Commission was passed behind their back, the order of the State Commission need to be set aside and matter be remanded for fixing hearing.

ON the other hand, it was argued by one of the complainants, Mr. Ajay Kumer Gupta that they had made 90% of the payments of instalments before the due date of delivery for the possession. Balance 10% was to be paid at the time of taking the possession. Against the promised date of delivery of flat i.e. by July, 1993, possession was given only in July, 1996. In-between they continuously escalated the price from time-to-time which also was paid by them in time under protest. No ground has been shown by the respondent justifying delay in delivery of possession, hence they are entitled to refund of all escalated costs charged from them, enhance compensation and award costs.

UNDISPUTED facts are that the parties entered into an agreement on 4.7.1990 for purchase of town house for a total consideration of Rs. 4,87,712/-. As per Clause 17 of the agreement the possession was to be delivered within three years subject to certain exceptions. Clause 17 is reproduced below : 17. That the possession of the said Dwelling Unit is proposed to be delivered by the company to the Dwelling Unit Allottee within three years from the date of execution of this agreement. The company shall not incur any liability if it is unable to deliver possession of the said Dwelling Unit by the time aforementioned, if the completion of the Town House is delayed by reason on non-availability of steel and/or cement or other building materials or water supply or electric power or slow-down, strike, or due to a dispute with the construction agency employed by the company, lockout, civil commotion or by reason of war of enemy, action or any act of God or if non-delivery of possession is as result of any notice, order, rule or notification of the Government and/or any other public or Competent Authority or for any other reason beyond the control of the company and in any of the aforesaid events the company shall be entitled to a reasonable extension of time for delivery of possession of the said Dwelling Unit. Possession as finally given on 21.7.1996. We find no merit in the agrument of the leaned Counsel for the petitioner that exceptions/conditionalities mentioned in Clause 17 of the agreement project him. It does not. There is no material on record i.e. either in the correspondence exchanged between the parties or in the written version filed before the State Commission to show that delay in delivery of possession was caused by any of the conditions mentioned. Only reference to one letter issued by the petitioner is sufficient to nail the line that possession was offered in October, 1994 and delay in these circumstances was on account of delay in taking the possession by the complainants. There letter is dated 17.5.1996 and originates from the petitioner''s offer and is signed by the Senior Commercial Manager : "Reg : Town House No. U-15/50 Gr. in DLF, Qutab Enclave Complex, Gurgaon This has reference to your letter dated 9.5.1996. We have checked up with our site office and have been told that town house shall be ready in all respects by 30.5.1996 for the possession. You are, accordingly, requested to contact our site office after 30.5.1996 for the final handing over. Thanking you, Yours faithfully, For DLF Universal Ltd. (VALSALA) GR. MANAGER, COMMERCIAL In our view no further proof is required to determine as to when the Town House 15/50 G.F. in DLF was ready for giving possession. Possession was offered in mid May, 1996 and possession was taken in mid July, 1996. There is obvious delay in handing over the possession of three years.

IN our view State Commission has rightly not gone into the question of escalation in price as was being contended by the complainant before the State Commission and has also been contended before us. Consumer Forums cannot go into the question of pricing of houses/flats is a settled law and hence, we will not like to go into it.

WE have also gone through the record on the point of not being heard and order being passed behind his back. Chronology of events reveals that on complaint being filed, written versions were filed by the petitioner/respondent in both the cases, affidavits by way of evidence were also filed by both the parties - there appears to be some mix-up on the date of hearing the arguments in two separate complaints before the State Commission. WE see certain merit in this point of the petitioner but not good enough a point to remand the case, this would only delay the matter. Before us both the parties in both the cases were given adequate time and opportunity to produce before us any material and we also heard the arguments. There is one single point which needed to determine the merit of the appeals and it is on this point alone that the State Commission has given direction upholding the complaint. We also heard the arguments by parties in extenso on this point and perused the material on record and discussed this issue, earlier in the order and we find that "there has been a delay in delivery in handing over the possession of the Town House which is a deficiency in service within the definition of this word as per C.P.A. 1986. We see no ground to interfere in the well-reasoned order of the State Commission. The appeal is dismissed with cost of Rs. 2,000/-. Appeal dismissed.