Paramvir Singh vs P H Houses Pvt Ltd

THE complainant/petitioner had applied for allotment of residential unit at Greenfield Towers, VIP Road, Zirakpur on 20.11.2006 and deposited booking amount of Rs. 50,000 with OP/Respondent. The Complainant was allotted Unit No. A-V-4, two bedroom, 5th Floor for a total sum of Rs. 17,50,000. The Complainant paid a total sum of Rs. 15,75,000. The possession of the residential unit was to be given on or before 21.11.2008 as per allotment order issued by OP/Respondent. According to the Complainant, the OP failed to handover possession of the unit by 21.11.2008 and instead stopped the construction of the apartments. The Complainant vide letter dated 24.1.2009 requested the Respondent either to handover the possession of the residential unit or to refund the entire money with interest. The OP/Respondent failed either to deliver possession or return the money on account which the Complainant approached District Forum for direction to deliver possession of residential unit or to refund the amount deposited by him with 18% interest thereon as also compensation @ Rs. 5 per sq. ft. per month w.e.f. 1.12.06 till possession is handed over. In addition, a sum of Rs. 2,00,000 as compensation for mental tension and harassment and Rs. 3,00,000 as punitive damages for unfair trade practice.

IN the written version filed by the OP/Respondent on 28.5.2009, it was stated that the delay was beyond the control of OP/Respondent and that the construction of the residential units shall be completed in near future. The District Forum accepting the plea of the Respondent/OP that the construction was going on at full swing and the same shall be completed early and the possession would be delivered without any unnecessary delay directed the OP to deliver the possession of the flat/unit by completing the construction without any delay. The District Forum also ordered that till the possession is delivered, the OP is directed to pay to the Complainant a compensation at the rate of Rs. 5 per sq. ft. per month w.e.f. 1.12.2006 till the last day of the month in which the possession is delivered. This order of the District Forum was challenged by both the parties before the State Commission.

BEFORE the State Commission, Counsel for the OP had submitted that the flats/units are under construction and they are nearing completion and soon they would be completed and handed over to the buyers. On the basis of this statement made by the Counsel for the OP, the State Commission held that there was no justification for OP to refund the amount paid. The appeals were disposed of with modifications. The petitioner has challenged the order of the State Commission in revision.

WITH the consent of learned Counsel for the parties, the matter was finally heard at the admission stage.

LEARNED Counsel for the petitioner argued before us that the OPs have repeatedly made false representations before the Fora below right from the beginning that the flats/units will be ready very soon and possession thereof shall be delivered to the Complainants; that the possession was to be delivered by 21.11.2008, yet, the possession has not been delivered so far. He, therefore, contends that the amount paid by the petitioner be refunded with interest and compensation.

WE had asked the Respondent/OP to file affidavit as to by which date the construction will be completed and possession of the flat/unit shall be handed over to the Petitioner/Complainant. The Managing Director of the Respondent has filed an affidavit dated 9.2.2011 wherein it has been stated that the Respondent Company shall make its utmost and sincere efforts to ensure completion of construction and handing over of the apartment booked by the Petitioners on or before 17.6.2012. In view of this affidavit, we had repeatedly asked learned Counsel for the Respondent as to what the Respondent/OP meant when it was stated before the Fora below that the construction will be completed in near future and learned Counsel for the Respondent states that the said expression means 3 to 5 years. We find it extremely difficult to accept this submission of Counsel for the Respondent. However, the main contention of the Counsel for the petitioner is that the parties are bound by terms and conditions of the contract and that there is no case for refund. In support of his submissions that the parties are bound by terms and conditions he has placed reliance on the judgment of the Apex Court in Secretary, Bhubaneshwar Development Authority v. Susanta Kumar Mishra, V (2009) SLT 242=2009 (1) CCC 117 (NS), United India Insurance Co. Ltd. v. Harchand Rai Chandan Lal, IV (2004) CPJ 15 (SC)=V (2004) SLT 876; and in Bharathi Knitting Company v. DHL Worldwide Express Courier Division of Airfreight Ltd., II (1996) CPJ 25 (SC)=1996 (1) Curr.Con.C 596 (NS). He, therefore, contends that the revision be dismissed.

LEARNED Counsel for the Complainant relied upon Section 55 of the Contract Act and submitted before us that the time is essence of the contract and since the flat/unit has not been handed over even though more than 3 years have already elapsed from the date on which it was to be handed over, the OP be directed to refund the amount paid with 18% interest. He also said that the contract in question is one sided and heavily overloaded in favour of the OP and at the time of signing the contract the parties have no option, but to sign the same.

WE have gone through the record. The allotment letter dated 21.11.2006 states that the possession shall be delivered on or before 21.11.2008. The said letter states that if for any reason whatsoever whether within on outside the control of first party, the whole or part of the project is abandoned, no claim will be preferred by the second party and that the plans are tentative and are subject to change at any stage by the Sanctioning Authority/First Party/Architect. It also provides that timely payment of instalment is the essence of this agreement. The allotment letter further states that construction of Apartment is likely to be completed at the earliest from the date of commencement of work and no claim by way of damage/compensation shall lie against the First Party in case of delay in handing over the possession on account of the availability of construction material, change of policy by the Government/local authority, etc. or for any reason beyond the control of the First Party. In the note below Plan ''B'' it is stated that the Company would pay penalty to its customer @ Rs. 5 per sq. ft. per month for any delay in handing over the apartment beyond the committed period of 24 months from the date of allotment. Thus, possession has not been treated as essence of the contract by the OP. The contract in our opinion is one sided and unfair to say the least. The petitioner had paid a total sum of Rs. 15,75,000 the details of which are as under: Payment Plan Name: ''B'' Rs. 17,50,000 Basic Sale Price (BSP) Sl. Particulars Amount Due date No. Rs. 1. BOOKING 50,000 21.11.06 (Annexure C-1) 2. 1st Instalment 3,00,000 29.12.06 (Annexure C-3) 3. 2nd Instalment 3,50,000 19.2.07 (Annexure C-4) 4. 3rd Instalment 4,37,500 3.8.07 (Annexure C-5) 5. 4th Instalment 4,37,500 5.3.08 (Annexure C-6)

IN spite of the payment of Rs. 15,75,000, the possession of the flat/unit was not delivered on 21.11.2008 and the OP repeatedly and falsely represented before the Fora below that the construction would be completed at an early date without unnecessary delay and the flats would be ready soon. In the affidavit filed by the Managing Director of OP before this Commission it has been stated that the apartment booked by the Petitioner would be ready on or before 17.6.2011. The consumer cannot be made to wait indefinitely at the whims and fancies of the builder especially when false representations have been made by the OP regarding completion of the construction at an early date, soon and in near future.

THERE cannot be any dispute in respect of the proposition laid down by the Apex Court. However, in the facts and circumstances of the case and in view of the developments which have taken place so far, we are of the opinion that interest of justice demands that the amount paid by the Complainant/Petitioner to the OP should be refunded by the OP with interest @ 15% p.a. from the date of deposit till the entire amount is paid. In addition, in the facts and circumstances of this case, we direct the OP to pay compensation of Rs. 50,000 to the petitioner/complainant for mental agony and harassment. The cost of the proceedings through out shall be borne out by the OP which is fixed at Rs. 25,000. The amount, if any, paid to the Complainant @ Rs. 5 per sq. ft. w.e.f. 1.12.2006 shall stand adjusted against the amount payable to the Complainant under this order. The revision is allowed in aforesaid terms and the orders of the Fora below are set aside. Revision Petition allowed.