S.K.JAIN vs ANSAL PROPERTIES And INDUSTRIES LTD.

APPELLANTS were the complainants before the State Commission, where they had filed a complaint alleging deficiency in service on the part of the respondent, Ansal Properties and Industries Ltd.

UNDISPUTED facts of the case are that the appellant/complainant, in response to an advertisement floated by the respondent, applied for allotment of a flat on Plot No. 22, Kasturba Gandhi Marg, New Delhi in the year 1977-1978 and was allotted a flat bearing No. 504 vide respondent''s letter dated 8.11.1978. The complainant made required payments and instalments and by 19.5.1979 had paid Rs. 95,400. The remaining amount was to be paid in instalment on completion of different floors as mentioned in Clause 4 of the allotment letter. It was also stated by the appellant/complainant in complaint that the building was to be completed within 2 years from the date of commencement of construction. The building plan was sanctioned in 1979 but respondent did not commence construction till 1984 and, the building was not completed till 26.10.1991 when the possession was handed over to the petitioner. It was also the case of the complainant that several other charges on account of interest on delayed commercial levy, ground rent as well as charges for electric connection and fire fighting charges etc., were charged which the respondent was not correct in charging, thus, alleging deficiency in service on the part of the respondent, a complaint was filed. The State Commission after hearing the parties, dismissed the complaint vide order dated 26.3.2004. Aggrieved by this order, this appeal has been filed before us. We heard the complainant in person and the learned Counsel for the respondent at some length. Basic facts are not disputed hence are not reproduced.

This Commission''s order dated 29.11.2005 also notices that the appellant will limit his complaint and allegations to the point of delay in delivery of possession.

THERE is no disputing the fact, that in response to the advertisement floated by the respondent, appellant/complainant applied for allotment of a flat, which was allotted to him by the respondent vide its letter dated 8.11.1978. It also had several terms and conditions both with regard to the instalments of payment (para 4) as also the completion of building within 2 years from the date of starting of construction (para 10 of the allotment letter). There is no disputing the fact that the complainant stepped into the shoes of the original purchaser/allottee, Mr. V.K. Hajela with the consent and approval of the respondent and it is also not in dispute that the appellant was bound by the terms and conditions of allotment issued to the original purchaser.

THE fact remains, that as per allotment letter dated Nov. 1978, the building was to be completed within 2 years from the date of starting of construction. It is also not in dispute that the offer of possession was given only in 1991, even though, it is stated by the respondent that the possession was offered in 1989. Even if we take the date of offer, which was not acceptable to the appellant on account of several other demands having been raised by the respondent and we may agree with the plea taken by the appellant in this regard, yet, the appellant has to explain, in satisfactory terms, as to how did he take almost 11 years in stead of stipulated 2 years to complete the building? The main leg of the argument of the respondent is that as per allotment letter dated 8.11.1978, the allotment was "Provisional" (para 11 of the allotment letter) and specifically they had difficulty in getting the permissions from the Competent Authority which took some time and after the work was started in 1984, but with the problems involved in such a large complex, it took them five years to complete the building, which was offered to the appellant in 1989. In support of his contentions, learned Counsel for the respondent relies upon the agreement entered between the parties on 24.10.1991, according to which, the building agreement had two plans; plan I and plan II and as would be evident from plan II, the building was to be completed only by 1989, in view of which, no deficiency can be fastened on the respondents. After hearing the parties and perusal of material on record, we find that as late as 22.12.1984, respondent vide his letter written to the appellant/complainant stated that the "above-mentioned building was constructing in full swing and was expected to be completed by 15.1.1985" and asking for more money from the appellant. Not only 1985 passed by, but several other years went part the post, yet building was not completed and possession was not offered. The main ground contended by the appellant in his complaint for delay in construction related to the fact that while as per the advertisement in newspaper floated in 1977-1978, gave the details of a multi-storey (8 storey building) but finally was constructed was 15 storey building with a revolving restaurant on the top of it. It is this additionality to the originally planned 8 Storey Building which resulted in delay in delivery of the possession. The respondents went on to make additional money by building/adding additional storeys for sale. Nothing has been brought on record by the respondent to show as to when the plans were approved? and for what area? and once the construction started in 1984, i.e., after 5 years of the floating of the scheme and having retained the money of the people including the appellant in this case, what were they doing to get the plans approved? If the plans were approved then whether it related to 8-storey or 15-storey building? We are unable to sustain the plea taken by the respondents that as per allotment letter the allotment was ''provisional''. Allotment was never questioned hence, the plea has no relevance and provides no cover of protection to the respondents. Since the possession had not been given as per para 10 of this allotment letter which contained a certain time frame for completing the work, which would not have extended for more than about 2 years or may be for 2 years, it will amount to be deficiency in rendering service by the respondent to the appellant. It cannot be anyone''s case that the builder will keep sitting on the money of the consumer indefinitely on some vague and uncorroborated pretexts. Hon''ble Supreme Court has held and this Commission has also taken pains to express clearly and in unequivocal terms that the building must be completed within 2 or 2 years from the date of allotment.

IN the complaint itself, para 2 states that as per advertisement, the respondent was to construct multi-storey (8 storey building) on the said plot but they went on to add 7 more storeyes to the structure resulting in delay in handing over the delivery of the possession of the said flat (para 10 of the complaint). IN the written version filed by the respondent before the State Commission in reply to para 2 states ''it is a matter of record'' and in response to para 10, there is bald denial of the contents of para 10 of the complaint. IN the legal notice issued by the appellant dated 18.11.1991 the point has been taken up but not reputed. Thus, it will be correct to accept the premise that originally building was to be constructed upto 8 storeys but since they went on to add 7 more storeyes, obviously, calling for further approvals resulting in the uncalled for delay in delivery of the possession to the appellant. Their contention that they went on to deliver the possession in 1989 which is good as far as the respondent is concerned, is belied by the very fact that their letter dated 22.12.1984 clearly stated building is expected to be completed by 15.1.1985.

IN our view, the reliance placed by the learned Counsel for the respondent on the agreement dated 24.10.1991, will be an effort to place the cart before the horse, what the complainant is complaining is delay in delivery of possession from 1981 onwards, i.e., providing for 2 years from the date of allotment letter (this figure being referred to in the allotment letter (para 10). Even though, the appellant was offered possession some time in 1989 but possession was actually given in October, 1991 and this agreement has been executed at the time of giving the possession, which in our view, cannot supersede the terms and provisions given in the letter of allotment which was issued on 8.11.1978. The other two pleas, i.e., reliance on the payment plan Nos. 1 and 2 or whatever on an agreement executed at the time of or around the time of giving possession after over a decade of letter of allotment will be of no consequence in determining the deficiency in service on the part of the respondents for delay in delivery of the possession. We are quite clear that having received the payments as per the terms and conditions and as per the terms of the allotment letter, the respondent was under obligation to hand over the possession within 2 years, i.e., by about 1980, we can give one more year margin for him to complete the project but not more than that. The respondents having taken almost 11 years to offer the possession is definitely a visible case of deficiency in rendering service to the appellant.

As per law laid down by this Commission and Hon''ble Supreme Court, the appellant shall be entitled to interest on the deposited amount from 3 years after the allotment and till the date of offer of possession by 4.12.1989. We are constrained to observe that we find no merit in the summary manner in which the State Commission dismissed the complaint relating to issue of delay in delivery of possession. On this point by merely stating that since no specific period was mentioned in Clause 4 of the agreement, hence it will obviate the delay in delivery of possession, they did not care to note that the agreement was executed around the time when the offer of possession of the flat was given. In our view the State Commission has not dealt with the case in proper prospective and also keeping in mind the judgment of this Commission as also of the Hon''ble Supreme Court on the subject, in view of which, we are unable to sustain the order passed by the State Commission, which is set aside.

THE respondent is directed to pay to the appellant/complainant an interest @ 12% p.a. on the deposited amount from the respective date of deposits made upto 4.12.1989, from 3 years after the initial deposit, i.e., 1.1.1982 (giving clear 3 years to the respondent to have completed the building) to 1.12.1989 (i.e., date of offer of possession), along with cost which we fix at Rs. 5,000. The appeal is allowed in above terms.

ALL the above payments be made to the complainant within a period of 6 weeks from the date of passing of this order. Appeal allowed.