RAJIV GUPTA vs ANSAL HOUSING And CONSTRUCTION LTD.

APPELLANT was the complainant before the State Commission, where he had filed a complaint alleging deficiency in service on the part of the respondent.

UNDISPUTED facts of the case are that the complainant purchased a shop being constructed by the respondent, Ansal Housing and Construction Ltd. Original allottees were Jitender Singh and Mahendra Singh, who subsequently transferred it to one Smt. Shakuntala Jhilani, who in turn transferred the shop to the appellant/complainant which was agreed to by the respondent vide letter dated 23.8.1991. Original price of the commercial shop was fixed at Rs. 1,52,145 of which 70% was paid. Subsequently the price was escalated and the area of shop which was originally indicated as 304.29 sq. ft. was increased to 354.92 sq. ft. Additional demands were made for meeting the electricity charges as well as for maintenance/security which was not acceptable to the appellant; possession was also offered late, i.e., in 1992 with considerable delay. When the issues about the area, cost escalation and other demands raised by the respondent were not getting settled, including the rebate of 3% promised by the respondent, a complaint was filed before the State Commission, who after hearing the parties by its order dated 14.10.1997 granted the following reliefs: "12. In conclusion the complaint is allowed in part to the extent that the opposite party shall revise its demand after giving benefit of the rebate of 3% to the complainant and intimate the amount due from the complainant to him within two weeks of this order and shall deliver possession of the shop complete in all respects to the complainant within one week of the date on which the amount is deposited by the complainant with the opposite party. The other reliefs prayed for in the complaint are refused but the complainant is held entitled to the costs of proceedings from the opposite party which we assess at Rs. 1,000. This amount shall be payable within two weeks of this order."

Dissatisfied with these reliefs, this appeal has been filed by the appellant before us.

We heard the appellant in person and also learned Counsel for the respondents as also perused the brief notes of submission filed by the parties.

TO begin with we like to reproduce the reliefs claimed by the appellant in his complaint: "(a) That the opposite parties be directed to deliver the possession of the shop No. GF-112, having actual area of 304.29 sq. ft. as agreed vide allotment letter dated 23.8.1991 (Annexure 2) to the complainant. (b) That the opposite parties be further directed to charge a sum of Rs. 1,52,145 which is total sale consideration of the said shop as agreed vide allotment letter dated 23.8.1991 (Annexure 2) from the complainant. (c) That the opposite parties demand letter dated 20.11.1992 demanding illegal demands in various heads which was not agreed to be treated as illegal and the said demand letter dated 20.11.1992 (Annexure 9) be quashed. (d) That the opposite parties be directed to pay interest @ 18% per annum compounded at half-yearly rest on the sum of Rs. 1,06,501.50 from January, 1990 till the date of its payment, for the non-delivery of the possession of the said shop as promised to deliver in the end of year 1989 and opposite parties be further directed to give 3% rebate on the cost of the said shop as stated on para 15 of the complaint. (e) That the opposite parties be directed to pay a sum of Rs. 3,000 spent in to and fro expenses in meeting the officials at their office and writing various registered letters. (f) That the opposite parties be further directed to pay compensation amounting to Rs. one lakh being calculated @ Rs. 100 per day for the suffering of mental and physical tension and economical loss. (g) Any further orders as this Hon''ble Commission deems fit in the circumstances of the case."

Dealing with the first prayer first, there is no dispute that the area involved was 304.29 sq. ft. as per letter of allotment issued to Smt. Jalani as well as to the appellant. We have no doubt in our mind that transferees were bound by the terms of original allotment issued on 17.4.1987 to the original allottee. Clause 4(d) of this letter issued on 17.4.1987 reads as follows: "Rates charged above for the area of the flat are for covered area plus proportionate share of area under common passages staircase wells, lifts and recessed space below window cell etc., i.e., super area basis."

(Emphasis supplied)

IT is important to co-relate this with the report of the Local Commissioner appointed by the State Commission. This report is at pages 69-71 in the form of an affidavit filed by the Law Officer of the respondent. IT is clear that the built-up area of the shop is 20.90 sq. mts. and the rest of the area is super area, i.e., areas mentioned in Clause 4(d) of the original letter of allotment. Nothing to the contrary has been shown to us to take any view different than the one taken by the State Commission on this point. The interpretation of Clause 4(d) leaves us with no option but to agree with the respondent that the area allotted included the super area proportionate to the common passage, etc. Hence we see no merit in this part of prayer of the complainant. A part of the complaint also is that he never asked for area more than 304 sq. ft. Clause 1 of the allotment letter itself clearly mentioned ''reduction or increase'' in the above mentioned area as a result of other changes brought by the sanctioning authorities, architect or the builders. In view of this, this plea also lacks of merit and we are unable to entertain this. The second part of the prayer relates to the price escalation, which as per settled law cannot be gone into by the Consumer Fora, hence we refrain from going into this question. Coming to prayer (C) of the prayer mentioned in the complaint, as per letter of allotment dated 20.11.1992 (page 67 of the paper book) items (i) (ii) (iii) (iv) are already dealt in by us above. The demand under item (v) of this letter falls within the terms of Clause 10 of the letter of allotment dated 17.4.1987, in which it was made clear that electric connection charges will be charged extra, hence, we see no merit in this prayer as well.

AS far as security charges are concerned, these charges cannot be raised as they were not part of any terms of allotment, hence respondent cannot raise this demand. To this extent this prayer is allowed.

AS far as the question of delayed delivery is concerned, it is not in dispute that the original allottee was issued letter on 17.4.1987 and delivery should have been completed within 3 years. Even we see the letter of allotment in favour of the complainant dated 23.8.1991, the last instalment of 10% was to be paid at the time of possession which was fixed at 15.2.1991 which stand penned out. Despite this penning out this letter leaves us with a clear impression that the construction of shops should have been completed by February 1991 which, we accept even though it is beyond the period of 3 years from the letter or original allotment. Possession was offered much latter than this date. In these circumstances, the appellant shall be entitled to interest @ 12% p.a. on the deposited amount from the respective date of deposits till the time of ''offer-of-possession'' letter was issued by the respondent. Coming to the next relief of cost of Rs. 3,000, State Commission, in our view, has granted this cost and we do not wish to interfere with this.

As far as the last prayer is concerned, we agree with the State Commission that it is the complainant who himself refused to take the possession for largely self-created reasons. We see no merit in this prayer. The award of interest for delayed delivery is sufficient compensation for the appellant/complainant in this regard.

IN the aforementioned circumstances, the appeal is allowed only in above terms that the appellant shall be entitled to interest as well as non-payment of security charges as indicated earlier. The appeal stands disposed of in above terms. Appeal partly allowed.