JUSTICE V.K. JAIN (ORAL)

The complainants/respondents were husband and wife entered into an agreement with the petitioner for purchase of a residential flat which the petitioner had advertised for sale in Maya Graden VIP Road, Zirakpur. The sale consideration for the aforesaid flat was agreed at Rs.17,80,000/- including Rs.80,000/- towards the cost of the car parking. It was also agreed between the parties that the sale deed in favour of the complainant would be executed on or before 31.3.2010 and in the event of delay, the petitioner shall pay a fixed compensation of Rs.5/- per sq.ft. per month to the complainants. The complainants paid a sum of Rs.18,22,438/-, inclusive of taxes to the petitioner firm. The possession of the flat was delivered to the complainants on 28.12.2011. The sale deed of the said flat was also executed in their favour. After receiving possession of the flat and execution of the sale deed in their favour, the complainants approached the concerned District Forum by way of a consumer complaint alleging several deficiencies in the flat sold to them and also claimed compensation for the delay in delivery of its possession.

2.      The complaint was resisted by the petitioner which interalia alleged that the complainants themselves had not made payment of the sale consideration within the time agreed between the parties. It was also pointed out in the written version filed by the petitioner that as per agreement between the parties interest @ 20% p.a. was payable by the complainants for the delay in making payment. It was also pointed out that the complainants had taken possession of the flat on being satisfied that it was complete in all respects.

3.      The District Forum vide its order dated 30.4.2013 directed as under:

“9.  For the reasons recorded above, the complaint is allowed. The OP is directed to do the following:

1. To provide the complainants demarcated covered parking.

2. To provide them bed room dimensions

3. To rectify the leakage/dampness

4. To provide kitchen partition as per drawing

5. To remove minor defects like final painting, gaps in shutters, CP fitting adjustment, shifting of one jet, geyser point in one toilet.

The OP should also pay to the complainants Rs.1,24,583/- (Rs. One lac twenty four thousand five hundred eighty three only) with interest thereon @ 9% per annum with effect from 28.12.2011 till the date of realization on account of delay in delivery of possession; to pay them compensation of Rs.25,000/- (Rs. Twenty five thousand only) for harassment and Rs.10,000/- (Rs. Ten thousand only) towards litigation costs. In case no compliance is made of this order within a period of month, the complainant shall be entitled to proceed under the provisions of Section 25 and Section 27 of the Consumer Protection Act, 1986. Certified copies of the order be furnished to the parties forthwith free of costs and thereafter the file be consigned to the record room.”

4.      Being aggrieved from the order passed by the District Forum, the petitioner approached the concerned State Commission by way of an appeal. The said appeal having been dismissed vide impugned order dated 30.11.2015, the petitioner is before this Commission by way of this revision petition.

5.      The first question which arises for consideration is as to whether the complainants were entitled to the agreed compensation on account of delay on the part of the petitioner in delivering possession of the flat to them. The contention of the learned counsel for the petitioner is that at the time of delivery of possession, the complainants were required to pay interest for the delay in making payment to the petitioner and therefore, it was agreed between the parties that neither the petitioner shall pay compensation for the delay in delivery of possession nor the complainants shall pay interest on the delayed payments. I have carefully perused the written version filed by the petitioner before the District Forum. No such specific agreement between the parties had been pleaded in the said written version. In the absence of pleading of such an agreement, the contention cannot be accepted. The learned counsel for the petitioner relies upon the decision of this Commission in Shankar Lal Gupta Vs. Avas Ayukt &  Anr. in R.P. No. 3154 of 2005  decided on 7.3.2006, where ,according to her this Commission upheld the right of the respondent to receive interest for the delay in making payment. There is no quarrel with the proposition that if there is delay on the part of the buyer in making payment as per the contractual obligations, he would be liable to pay interest, if any,  as per the agreement between the parties. However, having delivered of the possession of the flat to the complainant without insisting upon any interest for the delayed payment,  the petitioner waived/condoned the said interest for the overdue payment and, therefore, it is not open to the petitioner to deny the agreed compensation for the delay in delivery of possession of the flat on the ground that the buyer had also delayed the payment of the sale consideration. Therefore, the orders of the Fora below, to the extent compensation for the delayed possession has been awarded, does not call for any interference by this Commission in exercise of its revisional jurisdiction.

6.      In the facts and circumstances of the case no justification for award of compensation amounting to Rs.25,000/- is made out when the District Forum had also awarded interest @ 9% p.a. on the compensation for the delayed possession along with cost of litigation quantified at Rs.10,000/-. No other ground is pressed by the learned counsel for the petitioner.

Therefore, the revision petition is disposed of by modifying the order passed by the Fora below only to the extent that the petitioner will not have to pay compensation quantified at Rs.25,000/-.