PRONOUNCED ON : 09.01.2018

ORDER

PER MR. PREM NARAIN, PRESIDING MEMBER 

          This revision petition has been filed by the Petitioner  - Col. Ranjit Singh Dhillon, against the impugned order dated 17.07.2015 passed by the State Commission in FA No.954/2014.

2.      The brief facts of the case are that the Petitioner/Complainant, booked a residential flat measuring 1299 sq.ft., in the project launched by the OP in the year 2009.  On 30.03.2009, the petitioner deposited an amount of Rs.2,96,000/- with the OP, as per their demand and payment schedule.  On 05.09.2009, the allotment letter was issued by the OP.  On 05.12.2009, the OP issued a letter to the complainant cancelling the preferential location and unilaterally adjusting the PLC amount of Rs.1,00,000/- deposited by the petitioner, without offering any option to the complainant. On 21.12.2009, the project was approved by the Greater Mohali Area Development Authority (GMADA), whereas, the booking of the flat was done by the OP, nine months’, in advance.  On 20.03.2013, after a delay of about one-and-a-half years, the possession was offered and the same was taken by the petitioner.  Thereafter, on 21.08.2013, the petitioner/complainant filed a consumer complaint bearing No.331/2013 before the District Forum.

3.      The complaint was resisted by the OP on several grounds.  However, the District Forum vide its order dated 28.05.2014 allowed the complaint, as under :-

“In view of the above discussion, the complaint is allowed against OPs 1 & 2 and is dismissed against OP3.  OPs 1 & 2 are directed to refund the amount of Rs.6,710/- as maintenance charges; Rs. 73,000/- as excess amount charged, with interest @ 9% p.a., from the dates of deposit, till realization.  The OPs 1 & 2 should also pay a lump sum compensation of Rs.50,000/- towards harassment and mental agony and costs of litigation”.

4.      Aggrieved with the above order of the District Forum, both the parties - complainant as well as the OPs preferred Appeals before the State Commission - the Appeal No.1083/2014 filed by the OPs was dismissed and the Appeal No. 954/2014 filed by the complainant was partly allowed, as under :-

“In view of the above discussion, we partly accept the appeal and modify the order of the District Forum.  In addition to the amount already allowed by the District Forum, the appellant/complainant will be entitled to a sum of Rs.62,400/- for late delivery of possession and Rs.21,000/- as litigation expenses”.

5.      Hence, the present revision petition by the petitioner/complainant.

6.      Heard the learned counsel for the parties and perused the record. 

7.      The learned counsel for the petitioner stated that the State Commission has held that there is no deficiency in service on the part of the OPs on the issue regarding adjustment of preferential location charges (park facing and corner flat) and on the issue of addition of 90 sq.ft. area. The State Commission further held that there was no unfair trade practice on the part of the OPs. 

8.      Learned counsel for the petitioner further explained that PLC (preferential location charges) of about Rs.1,00,000/- was taken by the OPs.  However, the same flat was not given to the complainant and the PLC were adjusted in the further payments due to the OPs.  Thus the OPs have kept this amount for some time and the complainant is entitled to interest on this amount.

9.      It was further pointed out by the learned counsel for the petitioner  that there has been delay in handing over the physical possession.  The booking was made on 30.03.2009 and allotment letter was issued on 05.09.2009, wherein time for possession was given as 24-30 months’ from the date of allotment letter.  However, the possession was actually given on 20.03.2013.  So, there is a delay of roughly, complete one year and, therefore, the complainant is entitled to get compensation for this delay.  The State Commission has awarded this compensation, but on the basis of the holding charges, which are very less, i.e., Rs.5/- per sq.ft, per month, as there was no specific provision for compensation for delay in handing over physical possession. The State Commission was not right in ordering the compensation for delay on the basis of holding charges as they are two different things. The complainant had requested in his complaint  that the compensation @ 18% p.a., on the total amount, be paid. 

10.    The learned counsel further mentioned that both the fora below have not considered the compensation for increase in the area.  It was stated that there was an increase of 90 sq.ft in the actual area, as compared to the original booking.  The complainant has demanded the price of the excess area of Rs.1,91,790/-, with interest @ 18% p.a.

11.    The learned counsel further argued that the complainant has represented in the revision petition that sufficient compensation has not been awarded to him for harassment and  mental agony. 

12.    On the other hand, the learned counsel for the OPs/respondents 1 & 2, stated that the complainant has already taken possession and, therefore, he is not a consumer. It was further stated that the District Forum as well as the State Commission have reasonably compensated the complainant and all the demands of the complainant have already been met.  The PLC was adjusted in the due payment to be made by the petitioner and, therefore, it would be deemed to have been refunded.  There is no question of interest payment on this payment because the payment was due from the complainant against which, this amount has been adjusted. 

13.    Coming to the delay in handing over the possession, it was argued by the learned counsel for the respondents that there was no provision in the Builder-Buyer Agreement and, therefore, the State Commission has rightly decided the compensation on the basis of holding charges on the principle of equity. If the builder is charging Rs.5/- per sq.ft., per month, as the holding charges, the complainant would also be entitled to receive the same if the delay happens. 

14.    So far as the excess area is concerned, the complainant has already accepted this and has taken possession.  Once the complainant has taken possession, after paying the due amount, he cannot raise the issue of excess area.  The excess area is as per the plan approved by the competent authority.  So, no amount is refundable for the excess area and that the complainant is already enjoying this excess area.  In connection with the mental agony and harassment, learned counsel for the respondents 1 & 2 stated that both the fora below have given sufficient compensation on account of mental agony and harassment.  The complainant does not deserve more than that amount. 

15.    Learned counsel for respondent No.3 stated that the respondent No.3  is only a proforma party and he has nothing to do in the matter.  However, respondent No.3 has unnecessarily been dragged into the matter as the main dispute is between the purchaser and the builder only.

16.    I have given a thoughtful consideration to the arguments of    the learned counsel for the parties and have examined the material on record.  So far as the question of PLC is concerned, the OPs have adjusted this amount against the dues to be paid by the complainant.  Based on this fact, both the fora below have not awarded the refund of the PLC or payment of any interest on this amount. As the circumstances for adjustment of the PLC have been caused by the approval of the plan by the competent authority and the OPs have already adjusted this amount, no deficiency can be attributed to the OPs. 

17.    In connection with the excess area of 90 sq.ft., it is clear that the complainant has taken possession of the flat, including this excess area after paying the due amount for this area, and, he is enjoying this excess area, hence, there cannot be any ground for refund of the amount paid for this excess area.  Thus there is no merit in this request of the petitioner for refund of Rs.1,91,790/-.

18.    Coming to the question of delay in handing over the possession, it is seen that though the District Forum has not awarded any separate compensation, yet,  a hefty amount of Rs.50,000/- has been awarded to the complainant. After filing Appeal before the State Commission, the State Commission has taken due cognizance of this fact and while modifying the order of the District Forum has awarded Rs.62,400/- as compensation for the delayed possession and also awarded Rs.21,000/- as litigation expenses, over and above the amounts, awarded by the District Forum.

19.    Thus, it is clear that compensation for the delayed possession has already been awarded by the State Commission and the assertion of the complainant that the State Commission has awarded this amount on the basis of the holding charges and, therefore, not sufficient, does not hold much water, as there is no clause in the Agreement for such compensation. Moreover, clause 12 of the Buyer’s Agreement clearly mentions about the time for construction of the independent floor, which reads as follows :-

“The construction of the said independent floor is likely to be completed, within 24 to 30 months of commencement of work, which shall be tentatively, the date of receipt of all requisite sanctions/ approvals/ permissions / clearances, subject, however to force majeure circumstances, regular and timely payments by Allottee(s), availability of building material, etc., change of policy by Government / Local Authorities, etc. No claim by way of damages/compensation shall be raised against the company in case of delay in handing over the possession on account of the said reasons, or any other reasons, beyond the control of the company”.

20.    On the basis of the above clause, it is thus clear that no definite date for possession was actually given in the Agreement.  As per the record, it is not plausible to reach to any conclusion as to when the work had started or when all the approvals were obtained.  However, as per the averment made in the written statement, the OPs have claimed that the offer of possession was made on 29.03.2012.  However, the dues were not paid by that time and, therefore, the complainant could not take the possession.  From these facts, it cannot be clearly stated as to what was the delay in handing over the possession. In these circumstances, the State Commission has approximated the period of delay and compensation has been awarded.  When the delay can not be ascertained properly, admissibility of any award of compensation for delayed possession itself becomes doubtful. In these circumstances, I do not find it reasonable to interfere with the impugned order of the State Commission, in this regard.

21.    So far as the compensation for mental agony and harassment is concerned, the District Forum has awarded compensation of Rs.50,000/- which seems to be quite reasonable, which the State Commission has, retained.  The State Commission has additionally awarded Rs.21,000/- as litigation expenses.  In this way, the complainant has been sufficiently compensated.  In fact, all the grievances of the complainant have been appropriately redressed by the fora below  and it seems that this Revision Petition has been filed for undue gains.

22.    Based on the above discussion, I do not find any illegality, material irregularity or jurisdictional error in the impugned order dated 17.07.2015 of the State Commission which calls for any interference from this Commission. The Revision Petition No. 2797/2015  is accordingly  dismissed.  No order as to costs for this revision petition.