OM GUPTA vs PUSHPA BUILDERS LIMITED-Opposite party

THE case of the complainants, in the present complaint, in nutshell is that the complainant had booked a showroom measuring 120 sq. ft. on the upper ground floor of the building known as Pushpa Apartments-III, proposed to be built on Plot No. 44-A, Rajinder Nagar, Ghaziabad. THE O.P. at the time of booking represented that it would be a corner showroom, having a total sale price of Rs. 94,000/- inclusive of an extra amount of Rs. 10,000/- on account of the same being a corner showroom having two sides open. THE complainant accordingly paid the initial deposit amount of Rs. 5,000/- on 24.6.1998 and thereafter continued to deposit instalments as and when demanded and in all paid a total amount of Rs. 85,000/- towards the price of the showroom so booked. It is, however, the case of the complainant that the O.P. has committed fraud on the complainant, inasmuch as on a visit to the site of construction, the complainant found that the showroom in question was only one side open as the other side had been blocked by a wall constructed by the O.P. Furthermore, the building was in a semi-constructed state and no lift was installed though the building is a six-floor building and the installation of lifts is mandatory under the relevant building bye-laws and regulations. Furthermore in May, 1995 on an inquiry from the Ghaziabad Development Authority it was revealed that no completion certificate had been granted in respect of the building in question as the same did not have requisite number of lifts and also because of number of other deviations from the sanctioned plan. Furthermore, the complainant received a bill from the O.P. dated 30.6.1995 demanding a sum of Rs. 1,45,151/- even though the complainant had already paid Rs. 85,000/- towards the price of the showroom. THEreafter, another bill dated 7.3.1995 was received in which the earlier amount of Rs. 1,45,151/- had been increased to Rs. 1,78,672/-. Accordingly the complainant got a legal notice dated 16.5.1995 served on the O.P. seeking refund of the deposited amount together with interest. Since no response was forthcoming from the O.P., the complainant has filed the present complaint praying for the reliefs as detailed in para 27 of the complaint.

THE O.P. in its reply/written version has raised a number of preliminary objections: that the complaint being hopelessly time-barred is not maintainable; that the complaint is false and frivolous as O.P. company has fulfilled its part of the contract whereas the complainants have intentionally and deliberately avoided to perform their part of the contract by withholding the legitimate dues of the O.P.; that the complainants are not bona fide consumers having booked the showroom for speculation purposes and not for their own bona fide use and occupation and as such are not consumers. On merits it is admitted that the complainants had booked a showroom as per details mentioned in the complaint. However, it is denied that the said showroom was represented to be two sides open. It is further stated on behalf of the O.P. that the complainants had failed to make payments in respect of the showroom in question whereas the O.P. had offered the possession of the unit booked complete with all amenities including lifts, etc. vide letter dated 16.1.1990 subject to the deposit of the remaining dues. It is further stated that the complainants having failed to come forward to take the possession after depositing the dues, are not entitled to any amount as prayed for in the complaint and the same is liable to be dismissed with exemplary cost in favour of the O.P.

The complainant filed a rejoinder denying the contents of the written version/statement and reiterating those of the complaint. Both the parties led their evidence by way of affidavits.

WE have carefully gone through the evidences and documents/material on record, as well as written submissions filed on behalf of the complainant. WE have also heard the arguments advanced on behalf of the complainant in the presence of the authorised representative of the O.P. Shri Mahabir Singh. The complainant has alleged deficiency in service on the part of the O.P. on three grounds mainly, that though the possession of the premises booked by the complainant was promised to be delivered by the year 1989 the same has not been delivered till date; further that the construction so raised is unauthorised and liable to be demolished on account of number of deviations from the sanctioned plan and the building bye-laws; that the showroom booked by the complainant was initially represented to be two sides open and as such an extra amount of Rs. 10,000/- had been included in the sale price of the showroom. But on inspection of the site it was revealed that one entrance had been blocked by the O.P. by constructing a wall and as such the same was not two sides open any longer. The above controversies raised by the complainant have been countered by the O.P. by stating that the premises booked by the complainant were never represented to be two side open. Furthermore, the construction of the complex in question was completed in 1990 and the possession was duly offered to the complainant in January, 1990. However, the complainant had failed to take the possession by paying the balance dues and as such it was the complainant who had failed to fulfil its part of the contract by not paying the instalments in time and also by withholding full payment of the showroom in question. It has also been argued on behalf of the O.P. that there are no deviations from the sanctioned plan and the building constructed by the O.P. is as per the terms of perpetual lease deed executed with the Delhi Development Authority. However we are not convinced by the arguments advanced on behalf of the O.P. The O.P. has neither in its reply/written version nor in its affidavit by way of evidence specifically denied or rebutted the fact that the complainant had booked a showroom having two sides open and paid an extra amount of Rs. 10,000/- for the said facility. Furthermore, the complainant has placed on record letters dated 27.10.1993 and 28.11.1994 wherein the complainant has specifically pointed out the fact that the showroom in question on inspection of site was not found to be two sides open as assured. No reply to these letters denying the said fact has been placed on record. Had there been no assurance regarding the showroom in question being two sides open the O.P. would have controverted the said fact by responding to the said letters of the complainants. Therefore, the grievance of the complainant in this regard appears to be justified. As regards the assertion of the O.P. that the possession was offered to be handed over to the complainant in January, 1990 the same also appears to be totally false in view of the letters dated 18.7.1996, 30.11.1998 and 28.1.1999 received from the Ghaziabad Development Authority by the complainants in response to their letters/queries (annexed along with the written submissions filed by the complainant) which reveal that the complex in question has not been constructed in consonance with the existing building bye-laws and on account of deviations from the sanctioned plan no completion certificate has been issued by the Competent Authority. Furthermore, the deviations from the sanctioned plan are not compoundable and as such the unauthorised construction is liable to be demolished. Therefore, it is apparent that the claim of the O.P., that the building in question was ready with all amenities for handing over possession to the complainant in January, 1990 appears to be incorrect and is not borne out of the record. Furthermore, a copy of the advertisement placed by the complainant along with the complaint specifically states that the complex in question would be ready for possession by 1989 whereas the material on record tells a different story, that the complex in question had not received the completion certificate till the date of filing of the complaint. In the above context the preliminary objection of the O.P. that the complaint is barred by limitation, is also not tenable as even after the filing of the complaint the construction of the complex, in which the showroom booked by the conmplainant is situated, has not been completed and cannot be occupied by the complainant as such since the cause of action is continuing the complaint is not time-barred. The other preliminary objection raised by the O.P. that the premises in question having been booked for commercial purposes the complainant is not a ''consumer'' under the Act, is also not maintainable as the bar of commercial purposes was applicable only to the goods purchased and not to services rendered, under the Act, as is evident from Section 2(1)(d)(ii) of the Act prior to the Amendment of 2002.

THEREFORE, in view of the fact that the O.P. has failed to hand over the possession of the showroom booked by the complainant as assured and that the same is not as per the specifications promised i.e., two sides open and further no completion certificate has been issued by the Competent Authority on account of unauthorised construction and deviations from the sanctioned plan the complainant has established on record the unfair trade practice and deficiency in service on the part of the O.P. Therefore, in the circumstances O.P. is directed to refund the amount of Rs. 85,000/- deposited by the complainant with the O.P. towards the price of the showrom, together with interest @ 18% p.a. from the date of deposit of each instalment till the date of actual payment. The O.P. is also directed to pay a sum of Rs. 5,000/- to the complainant towards the cost of these proceedings. In case of non-compliance of this order within 45 days of the date of receipt of the same, the complainants will be entitled to initiate appropriate proceedings under Sections 25/27 of the Act for the implementation of this order, as may be advised. The present complaint filed by the complainants stands disposed of in above terms. Complaint disposed of.