M/S. SINGLA BUILDERS & PROMOTERS LTD. vs AMAN KUMAR GARG

This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 13.05.2016, passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as ''the State Commission'') in consumer complaint No.137/2015, vide which, the following directions were issued to the appellant/opposite party:-

i) to complete the flat, in all respects, and to issue the letter of possession and to deliver the actual possession to the complainant, within two months of the receipt of the certified copy of this order;

ii) to pay compensation at the rate of Rs.3/- per square foot per month from 28.02.2015 till the actual delivery of possession of the flat;

iii) to pay Rs.1,50,000/-, as compensation for the physical, mental and financial sufferings suffered by the complainant; and

iv) to pay Rs.11,000/-, as litigation expenses."

The State Commission further directed that in case the OP failed to complete the flat in all respects within the period mentioned above, it shall refund the amount deposited with it by the complainant, i.e., 29,70,000/- alongwith interest @10% p.a. from 30.08.2014 till payment.

Briefly stated, the facts of the case are that the complainant/respondent booked a three-BHK flat priced at 33,00,000/- with the appellant/OP builder at their project called, ''SBP Homes'' at village Chhajumarja, District Mohali, Punjab and paid a sum of 1,65,000/- as registration deposit. An allotment letter dated 22.03.2014 for flat No. 183/8, tower No. 7, admeasuring 1540 sq. ft. of super area was issued in favour of the complainant by the builder. An agreement dated 22.03.2014 containing the necessary terms and conditions was signed between the parties, according to which, a sum of 24,75,000/- was payable on 15.04.2014 and a further sum of 3,30,000/- was payable on the date of delivery of possession, which was stated to be 30.08.2014. The complainant raised a loan of 25,00,000/- from the ICICI Bank Chandigarh and executed a tripartite agreement with the Bank and the Builder. The loan was to be disbursed directly by the Bank to the OP Builder and was to be repaid in 20 years by way of monthly instalments of 24,375/- each. As per the complainant, he made all payments under the agreement to the Builder, and a total sum of 29,70,000/- as stated in the details above, was paid by him. Vide notice dated 28.11.2014, the OP Builder asked him to take possession of the flat within 15 days on payment of a sum of 5,11,998/-. The OP further raised a demand for 3,85,000/- as maintenance charges, and 41,528/- as society maintenance charges, when the flat was actually not complete. The complainant wrote a letter dated 08.12.2014 to the OP and asked them to deliver the flat, complete in all respects by December 2014, after removing the deficiencies as stated in that letter. However, the Builder was not able to remove the deficiencies as pointed out by the complainant. The complainant filed the consumer complaint in question, alleging deficiency in service on the part of the Builder and seeking directions to them to pay interest @18% p.a. on the amount deposited by him from 30.08.2014 onwards till the date, the possession was delivered to him. He also demanded that if the OP failed to deliver the possession within one month of the complaint having been filed, it may refund the amount deposited by him alongwith interest @18% p.a. from the date of the deposit of the amount.

The complaint was resisted by the OP Builder by filing a written statement before the State Commission, in which it was stated that the brochure issued by him was for illustrative purpose only and was not a legal offering. Moreover, it had been provided that the date of delivery of possession could be reasonably extended subject to ''force majeure'' clause. The Builder also stated that there was shortage of building material in the entire region. The State Commission after taking into account the averments of the parties, allowed the consumer complaint and issued directions to the OP Builder as reproduced above, directing him to deliver the possession of the flat within two months of receipt of copy of their order and also to provide compensation as stated in the order. Being aggrieved against the said order, the OP Builder is before this Commission by way of the present First Appeal.

The learned counsel for the appellant and the respondent who was present in person were heard. There is a delay of 319 days in filing the present appeal. It has been stated in the application for condonation of delay that the impugned order was not in the knowledge of the OP Builder, as the same had been passed exparte against them. After the receipt of notice for the consumer complaint from the State Commission, the OP Builder had contacted their counsel and handed over the necessary papers to him. The said counsel appeared before the State Commission, but did not file reply before them and stopped attending the proceedings after some time. However, the OP Builder was always under a bonafide impression that the case was pending adjudication in the State Commission. The OP Builder came to know about the orders when bailable warrants were issued against them by the State Commission. The OP had received copy of impugned judgment on 12.04.2017, after which they filed the present first appeal.

The learned counsel for the OP Builder stated that they were ready to hand over the possession of the Unit complete in all respects. There was no deficiency in service on their part, vis-?-vis, the complainant. The order passed by the State Commission should, therefore, be set aside and the consumer complaint should be dismissed.

The respondent who was present in person stated, however, that the order passed by the State Commission was in accordance with law and should be upheld.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

A perusal of the memo of appeal as well as the application for condonation of delay indicates that the OP Builder had duly received notice from the State Commission in proceedings in the consumer complaint. In the grounds of appeal, they have stated that they contacted their counsel and handed over the paper-book and other requisite documents to him. The said counsel got the reply drafted and signed from one of the directors of the appellant company, but the said reply was never filed before the State Commission. On enquiry, it was revealed by the appellant that the said counsel could not appear in the courts or file reply before the State Commission due to ill-health of his mother. It is evident from these facts that the appellants were fully aware of the fact that their counsel was not appearing before the State Commission, but still they did not take any step to hire the services of another counsel, or to ensure that the case was properly defended before the State Commission. The non-filing of the written version to the complaint before the State Commission, amounts to an admission of the allegations levelled against them in the consumer complaint. In so far as the huge delay of 319 days in filing the appeal is concerned, the appellants have taken the plea that they came to know about the impugned order of the State Commission on 10.04.2017, when bailable warrants were received by them. The version given by the appellants does not provide any cogent and convincing explanation for the delay in filing the appeal. As stated already, it was their duty to follow-up the proceedings before the State Commission and take necessary steps to defend the case before that Commission. They should have taken further necessary action by filing the appeal, after the case was decided by the State Commission. There are no valid reasons for condoning the delay of 319 days, therefore, and the appeal deserves to be dismissed on this ground alone. We are supported in this view by the judgment of the Hon''ble Supreme Court in "Anshul Aggarwal vs. New Okhla Industrial Development Authority", [IV (2011) CPJ 63 (SC)] , in which it has been held that:-

"It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras."

In so far as the merits of the case are concerned, as per the agreement between the parties, the possession of the property was to be delivered by 30.08.2014. However, the offer of possession was made only on 28.11.2014. Further, the State Commission have observed that as per the photographs produced before them by the complainant, the said flat was incomplete in many respects. The complainant has stated that he contacted the appellants and pointed out the defects in writing and asked them to rectify the same. However, the appellants failed to take necessary steps to remove the defects and provide the property as promised in the agreement. As per the impugned order, the State Commission have directed the appellants to complete the flat in all respects and deliver the physical possession of the same to the complainants within two months of the receipt of their order alongwith compensation as stated. The State Commission have further directed that in case it was not possible for the appellant to deliver the possession within that time, they should refund the money deposited by the complainant alongwith interest @10% p.a. It is quite evident that the order passed by the State Commission is based on a rational analysis of the facts and circumstances on record. They have directed the Builder to deliver the physical possession of the property within a specified time and provide compensation for the delay, OR in the alternative, to return the amount deposited by him alongwith the nominal interest of 10% p.a. only. We, therefore, do not find any perversity or irregularity or illegality in the said order. Even during hearing before us, the appellant stated that they were ready to deliver the possession to the complainant. They should have, therefore, taken necessary steps in terms of the order passed by the State Commission to settle the issue with the complainant. There is no justification therefore, to accept this appeal, even on merits.

Based on the discussion above, this appeal is ordered to be dismissed being barred by limitation and also on merits. The impugned order passed by the State Commission is upheld. There shall be no order as to costs.