Narinder Puri vs Ravi Kiran Jain

THIS is an appeal by the opposite parties before the District Forum (four in number) against the order of the District Forum dated 4.1.2000 by which the complaint filed by Ravi Kiran Jain was allowed in the following terms : ''So we accept this complaint with costs and in terms of the agreement Ex. C -2 we grant Rs. 1,50,000 as damages along with interest @ 18% from 31.10.1998 till its payment or till to provide the fully operational Elevator. The interest has been allowed as compensation for mental tension, harassment and for not proper use of the property purchased by the complainant for running his profession. Besides that the opposite parties will pay Rs. 5,000 as cost of this complaint. The opposite parties have been directed to comply with the directions of this Forum within one month from the receipt of this order. Copy of this order be sent to the parties free of cost by registered post or in person under the rules. Record be consigned.''

THE facts are not much in dispute. Ravi Kiran Jain, complainant, filed a complaint before the District Forum on 15.7.1999 with the allegation that he had purchased property measuring 446 sq. ft. located on the fourth floor in the building known as Kapilvastu situated in Civil Lines, Jalandhar, from opposite party Nos. 3 and 4 i.e., Lalit Bahri and Deepak Bahri, who were the owners of the property and had executed a sale deed in favour of the complainant. Mr. Narinder Puri, who was opposite party No. 1, was the Managing Director of M/s. Bison Builders and Properties whereas opposite party No. 2 was M/s. Bison Builders itself. It was the case of the complainant that at the time of effecting the sale and delivery of the possession of the area purchased on the 4th floor of the building, opposite parties had agreed to provide fully operational Elevator (Lift) by 31.10.1998. In fact, to straighten the matter, an agreement by the opposite parties (the present appellants) was also entered into with the complainant on 27.6.1998, Ex. C -2, that the lift will be provided by 31st October, 1998 failing which the opposite parties will pay a sum of Rs. 1.5 lakh to the complainant. Detailed reference to Ex. C -2 will be made hereinafter. The opposite parties having failed to provide the lift by the stipulated date and even having failed to honour the agreement dated 27.6.1998 to pay Rs. 1.5 lakh, the complaint was filed before the District Forum claiming Rs. 3 lakh, including the agreed amount of Rs. 1.5 lakh, as damages/compensation for causing inconvenience, harassment and mental agony to the complainant. Costs of the complaint were also claimed. As observed above, the complaint was allowed on 4.1.2000. Hence the present appeal.

OPPOSITE party Nos. 1, 2 and 4 had filed a combined reply to the complaint and separate reply on behalf of opposite party No. 3 was filed. The preliminary objection by the opposite party Nos. 1, 2 and 4 as also by opposite party No. 3 was taken which is in the following terms : ''That the matter regarding the installation of the lift and the consequences that were to follow on account of the non -installation of the lift, had already been settled between the parties vide agreement dated 27.6.1998. In view of the said agreement and settlement between the parties, no complaint under the Consumer Protection Act, is maintainable.''

IT was further stated in the reply that all the purchasers in the building had not paid the entire consideration and, therefore, the lift could not be provided. During the course of arguments it was also argued before the District Forum that the complainant was not a consumer. Further in view of the agreement dated 27.6.1998 between the parties, remedy, if any, lay before the Civil Court. Before we proceed further in the matter it will be apposite to reproduce the agreement dated 27.6.1998, Ex. C -2 made between the parties : ''This agreement is made this 27th day of June, 1998, at Jalandhar between Shri Lalit Bahri and Shri Deepak Bahri sons of Shri T.N.S. Bahri, owners of the property known as''Kapil Vastu'' Civil Lines, Jalandhar (hereafter called the ''owners) of the first part, M/s. Bison Builders and Properties Private Limited, a company registered under the Companies Act, 1956 having its registered office at Jalandhar, through its Managing Director Shri Narinder Puri, engaged in the construction of the said property (hereafter called ''the builder'') of the second part. And Shri Ravi Kiran Jain son of Shri Manohar Lal Jain c/o Jain Mahajan & Co., Adda Hoshiarpur, Jalandhar City (hereafter called ''the buyer'') of the third part. This is hereby agreed: (1) That the sale deed has been executed and possession of the area measuring 446 (four hundred forty six) sq. feet on the 4th floor of the said property known as ''Kapil Vastu'', has been taken and as per terms and conditions between the builder, owner and the buyer, a fully operational elevator (passenger lift) will be provided by the builder by 31st October, 1998. (2) That the sale has been effected and property has been purchased on the fourth floor on the pre -requisite condition of providing the lift without any further cost to the buyer and the provision of the lift has been considered while effecting the sale deed and in case the builder fails to provide the lift with in the stipulated period, the builder would pay a sum of Rs. 1.50 lac (Rupees one lac fifty thousand only) to the buyer forthwith. (3) That the payment has been ascertained for causing inconvenience and for not providing the lift and causing hindrance to the right to use the property purchased and the buyer may, therefore, make his own arrangement for providing the lift along with or without other owners of space in the said property and the owner as well as the builder will not make any objection for the same but shall allow use of the power connection installed or to be installed for the purpose of operation of lift only. (4) That in case the builder fails to provide the lift within the stipulated period or fails to make the payment of Rs. 1.50 lac (Rupees one lac fifty thousand only), the buyer will be within his rights to recover this amount through legal proceedings. (5) That the buyer cannot demand any more money even if the cost of providing the lift comes to more than the amount fixed herein. In witness whereof, the parties hereto have signed this agreement on the day, month and the year first ever mentioned above in the presence of the following witnesses.''

IT will be seen from the agreement itself and the pleadings of the parties that the appellants (opposite parties before the District Forum) had agreed that they would provide the Elevator i.e., Lift by 31.10.1998. This was one of the amenities/services that was to be rendered/provided by the owner/builder. Consequently to say that the complainant is not a consumer is not correct as the appellants (opposite parties before the District Forum) were to render a particular service i.e., providing of Elevator. By the agreement dated 27.6.1998 it was made clear that the lift will be provided without any charges as that was a pre -requisite condition of the sale of the built area. No cost was to be borne by any of the purchasers for providing them lift as that was to be borne by the owner/builder. The agreement dated 27.6.1998, Ex. C -2, was signed by the complainant as well as all the appellants (O.Ps. before the District Forum). In this very agreement it was agreed by the opposite parties before the District Forum that in case they do not provide service Lift by the stipulated period, they will pay a sum of Rs. 1.5 lakh to the complainant. The amount was in the nature of damages. This did not absolve the opposite parties before the District Forum to provide Lift. Consequently to say that the complainant should have resorted to remedy before the Civil Court is not well based. Otherwise also, what would have been the defence of the appellants before the Civil Court in view of the specific and clear agreement dated 27.6.1998, Ex. C -2. The Lift having not been provided by the stipulated date, certainly a cause of action had accrued to the complainant to approach the District Forum.

DURING the pendency of this appeal the respondents have provided a Lift in the building where the complainant has his area. An affidavit of Shri Narinder Puri, Managing Director, M/s. Bison Builders and Properties Private Ltd., Jalandhar, dated 28.9.2005 has been placed on record in which it is mentioned that the Lift has been provided in the building which is fully operational and the trial run has been shown to various owners of the offices and show rooms situated in the building. M/s. Sapan Engineers, who had installed the Lift, have also given a certificate dated 3.9.2005 that the fully operational Lift has been provided in the building. When this appeal was filed the operation of the impugned order was stayed till further orders on July 17, 2000. In these circumstances, when the Lift has now been provided the question arises should the relief granted by the District Forum stand as it is or be modified. When the parties had contracted that if the Lift is not provided within the stipulated period the respondent would give Rs. 1.50 lakh to the complainant, we will assume that this Rs. 1.50 lakh included the contribution of the complainant towards the costs of installation of the Lift as also damages for not providing the Lift. Since the Lift has now been provided, the sufferings of the complainant have come to an end. The complainant or their tenants do not have necessarily to climb the stairs/ramp. As per the agreement the Lift was to be provided by 31.10.1998. It has been provided at least after seven years of the stipulated date. For the inconvenience, harassment etc. we are of the view that for these seven years the complainant -respondent would be entitled to compensation/damages. We assess the same at Rs. 50,000 which will include the costs of litigation also. Consequently, the appeal is allowed to the extent that the complainant would be entitled to compensation/damages to the extent of Rs. 50,000 from the opposite parties (appellants) jontly and severally. The order of the District Forum stands modified to that extent. Let this payment be made within two months from the receipt of the copy of this order failing which the amount would carry interest at the rate of 9% from the date of the order till the payment. Orders were reserved on 28.9.2005. To be communicated to the parties. Appeal allowed. -