JUSTICE V.K. JAIN (ORAL)

The complainant, who is a retired Air Force Sergeant,  was allotted a residential flat by the appellant in its Greater Mohali (Kharar) Scheme at the tentative cost of Rs.1404000/- which was later revised to Rs.1642000/-. A dwelling unit in the aforesaid scheme was allotted to him and he paid a sum of Rs.1892000/- to the appellant till January, 2017 when he was asked to take the possession of the said unit. According to him, there were defects in the flat which were not removed and, therefore, the possession could not be taken by him. He, therefore, approached the concerned State Commission by way of a consumer complaint.

2.      The complaint was resisted by the appellant who took a preliminary objection that the complainant was not a consumer, the appellant being a welfare organisation working on no profit no loss basis. It was further stated in the reply that when the complainant approached the appellant for removing the defects, the contractor was asked to remove the same and thereafter the complainant was requested  to take possession which he deliberately avoided to take.

3.      Vide impugned order dated 29.11.2018, the State Commission directed as under:-

“(i)      to hand over the possession of the Unit No.Y-204, Type-B Category in Jal-Vayu Tower, Mohali after removing defects, if any

(ii)       to pay Rs.1,50,000/- as lump sum compensation for delay in completion of the project/not removing defects in the construction, mental agony and harassment suffered by the complainant as well as litigation expenses.”

4.      Being aggrieved from the order passed by the State Commission, the appellant is before this Commission.

5.      Admittedly, a residential flat was booked by the complainant with the appellant and the sale consideration for the said flat was also paid by him directly to the appellant though the work of construction of the flat was entrusted by the appellant to a contractor. The appellant having allotted a residential flat to the complainant for valuable consideration and having accepted the said consideration from him, the complainant became its consumer irrespective of whether the appellant was working on no profit no loss basis or it intended to make profit out of the said transaction. I, therefore, find no merit in the preliminary objection taken by the appellant.

6.      It was noted by the State Commission that though the possession of the flat was to be delivered in 2009, it was offered to the complainant for the first time in January 2017. Therefore, admittedly there was delay in offering possession of the allotted flat even if it is assumed for the sake of arguments that there was no defect in the flat when its possession was offered to him.

7.      This is appellant’s own case that on receipt of a letter from the complainant, they requested the construction agency to remove the defects. This shows that the defects did exist in the flat which the contractor was asked to remove. The case of the appellant is that the defects were thereafter removed whereas the case of the complainant was that the defects were not removed. The direction of the State Commission for delivery of possession after removing the defects, if any, therefore, cannot be faulted with. Obviously, if there is no defect in the flat, there would be no question of the appellant removing the same. On the other hand, if one or more defects still persist in the flat, the appellant has to remove the same either itself or through the contractor before delivering possession to the complainant.

8.      As regards compensation, considering the abnormal delay of more than seven years even in delivering possession of the allotted flat to the complainant for the first time, the compensation awarded by the State Commission cannot be said to be excessive or unreasonable.

9.      It was contended by the learned counsel for the appellant that the part of the principal amount in respect of the allotted flat is still outstanding against the complainant. It goes without saying that if there is any outstanding principal amount against the allotted flat, the same can be recovered by the appellant before delivering possession in terms of the order of the State Commission or the said amount can be adjusted out of the of the compensation payable to the complainant, in terms of the order of the State Commission. With the aforesaid clarifications, the appeal stands dismissed.