RAKESH MAHINDROO vs PUSHPA BUILDERS LTD.

MR. Rakesh Mahindroo and Smt. Neeta Mahindroo, hereinafter referred to as the complainants, filed the present complaint against M/s. Pushpa Builders Limited, hereinafter preferred to as the opposite party. The opposite party advertised a project called Pushpa Aakash Apartments at Vaishali Complex in District Ghaziabad. The project consisted of four blocks of 100 flats each called Kaveri, Saraswati, Ganga and Yamuna. Various facilities, which were to be provided in the said flats, were also advertised. It was expressly stipulated that the project would be completed by December, 91. The complainants booked Flat No. B-5 on 10th floor of Ganga Block at a total cost of Rs. 4,32,250/-with an area of 1,235 sq. ft. An agreement between the parties was executed on 4.10.89. Under the agreement, the complainant was required to make payment of the consideration by instalments. The complainants went on paying the instalments which became due from time to time and had paid the whole amount in accordance with the terms of the agreement. The complainant kept a track about the progress of the work and came to know that work of construction of the Ganga Block, in which he had made the booking, had not even been started. The OP, however, informed the complainants on their persistent enquiries that the project has been delayed for technical reasons but work of construction of Kaveri Block was in full swing and the construction had reached 5th floor. The complainants were asked whether they were interested in being shifted to Kaveri Block by their letter dated 21.9.90. The complainants informed the OP that they had noted the offer made by the Company and they would like to keep their option open at that stage. The opposite party, vide their letter dated 5.9.91, informed the complainants that on account of slump in real estate in the market it had been decided to take up the construction of two blocks namely Kaveri and Saraswati and the remaining two blocks Ganga and Yamuna were to be constructed only in the second phase. At no earlier stage had the OPs intimated that Ganga Block was to be constructed in the second phase. The case of the complainants is that they could not be compelled to shift their booking from Ganga Block to any other block in which they had not made any booking. The OP made an offer of allotment in Saraswati Block and later on changed the offer to Kaveri Block. These were not acceptable to the complainants for the reasons, (a) that they had made a booking in Ganga Block and were not interested in being shifted to another Block; and (b), flats in the Saraswati and Kaveri Blocks were also incomplete and were not habitable. The complainants, therefore, asked by their letter dated 20.11.93 the OP to refund the amount paid by them i.e., Rs. 4,32,250/-alongwith interest @ 24% p.a. and Rs. 50,000/-as damages on account of mental suffering, harassment and inconvenience.

IN the written version filed by the OP, it was stated that the project called Pushpa Aakash Apartments was to comprise four blocks of 100 flats each. Due to a slump in the real estate only 150 flats could be booked in different blocks. It is further stated that numerous buyers defaulted in making the timely payments and it was in these circumstances that construction could not be carried out as originally scheduled. It was pleaded that the complainants were not ''consumers'' within the meaning of Consumer Protection Act, that they were estopped by their acts and conduct from filing the present complaint, that the complainants should be relegated to their remedy in the Civil Court as the OP was prevented from setting-up a counter claim against the complainants in the present proceedings. While admitting that the construction of Ganga Block had not even commenced, it was stated that the work on the Ganga Block could not be started for reasons explained in the preliminary objections. With regard to Kaveri Block it was stated that the structure had been completed and the respondent was ready to offer possession subject to complainants making payment of the final bill. According to the respondent a sum of Rs. 8,750/-was outstanding against the complainants on account of balance payment in the instalments and other charges mentioned in the bill. The complainants filed a detailed rejoinder controverting the averments of the respondent. We have heard Mr. N.N. Anand, Advocate for the complainants and Mr. Ram Niwas, Law Officer of the respondent Company.

The contention of Mr. Anand, learned Counsel for the complainants is, that the present case is completely covered by the decision of the National Commission in Pushpa Builders Flat Buyer''s Association v. Pushpa Builders Ltd. II (1996) CPJ 212 (NC), Original Petition No. 60/94 decided on 21.6.96 by the National Commission. Mr. Anand further submitted that appeal against the said decision had been dismissed by the Supreme Court on 13.1.97. A perusal of the aforesaid judgment shows that the case was decided on the basis of facts arising in 10 different bookings made by various members of the complainant Association. The bookings included various blocks such as Saraswati, Kaveri and Ganga. Mr. Anand further submitted that the complainants, in the present case, were on a better footing compared to the aggrieved members of the Buyer''s Association, in that, the complainants had admittedly made complete payment as per original schedule. He pointed out that admittedly construction on the Ganga Block had not even commenced. The various pleas including the legal pleas which are sought to be raised in the present proceedings, were considered in the aforesaid judgment and for the same reasons the complaint deserved to be allowed.

AFTER going through the judgment in Pushpa Builders Flat Buyers Association case (supra) we find that the same completely covers the present case. There is no dispute with regard to the basic fact that the complainants booked a flat in Ganga Block which has, admittedly, not even been started. We further find that the National Commission appointed Mr. D.P. Gupta, retired Director General (Road Development), Ministry of Surface Transport, Government of India, as an expert to inspect the two Blocks namely Kaveri and Saraswati in the Pushpa Aakash Apartment Project and to submit his report on the following questions: (i). Whether the flats in those blocks were in habitable condition or could be made habitable within a period of six weeks from the date of commencement of the finishing work; (ii) Whether the sewerage system, electric connections, water supply connections had been duly installed and made functional; (iii) Whether the environmental conditions relating to hygiene and security were congenial to the flats in question being occupied and used by person to whom they were to be allotted?

The local Commissioner carried out the inspection and submitted his report. The National Commission extracted relevant parts of the report of the local Commissioner in the judgment. In substance, the report was that the flats were not complete and in an habitable condition. The report was accepted by the National Commission in toto. It follows that even in the Saraswati and Kaveri Blocks in which the complainants were offered, alternative flats in lieu of the one booked by them in Ganga Block, the flats were not complete and habitable. The time-limit for completing the construction of the flat in the Ganga Block long expired in December, 91. Even if it is assumed that the complainants could be offered a similar flat on the same terms and conditions in another block comprised in the same project, the opposite party is not in a position to offer possession of a habitable flat. This constitutes deficiency in service.

THE plea that out of 400 flats proposed to be constructed under the project Pushpa Aakash Apartments only 150 flats booked or that some of the buyers committed default in payment, is not available against the complainants who paid the entire amount as per original agreement and are not guilty of default. No facts have been brought to our notice which would operate as an estoppel for the complainants in filing the present complaint. We have not been shown how the respondent has been prevented from making any counter claim against the complainants and, therefore, no case has been made out for relegating the complainants to the Civil Court. For these reasons, we allow the complaint and direct the OP to refund the entire amount of Rs. 4,32,250/- alongwith interest @ 18%p.a. from the date of deposit till the date of re-payment and costs of the proceedings which are assessed at Rs. 3,000/-. A copy of this order be communicated to both the parties. Complaint allowed with costs.