PER VINEETA RAI

        First Appeal No. 472 of 2007 has been filed by Shri B.S. Walia, Appellant herein and Original Complainant before the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as the State Commission) being aggrieved by the order of that Commission which while concluding that there was a breach of Agreement by M/s DLF Universal Limited, Respondent herein and Opposite Party before the State Commission, had awarded a compensation of only Rs.50,000/- which was far less than what was sought by the Appellant and warranted in the case.

2.     The facts as contended by the Appellant are that in June, 1993 he had booked a flat in Beverly Park (II) in DLF Qutub Enclave, Gurgaon with the Respondent after being assured that this flat was immediately below the penthouse.  Appellant thereafter made the entire payment of Rs.24,55,182/- as per the prescribed schedule in the Agreement, including miscellaneous charges.  However, he was “wonderstruck” when he was informed on 24.09.1997 that the Respondent had suo motu and arbitrarily changed the allotment of this flat to one storey below the agreed floor as a result of which it was not immediately below the penthouse as applied for by the Appellant and confirmed by the Respondent.  This clearly amounted to unfair trade practice.  Further, as per Agreement the Respondent was to deliver the flat after three years but instead of handing over the completed flat by the stipulated period, Respondent demanded escalation costs of Rs.4,29,595/-, which the Appellant had no option but to pay under duress whereas Respondent should have paid interest on the amount of over Rs.24,00,000/- already deposited by the Appellant for the delayed period.  Respondent was, therefore, guilty of deficiency in service on this count and liable for payment of interest @ 16.5% on this amount for the delayed period in handing over possession of the flat amounting to Rs.10,78,080/- since the flat was handed over only on 18.06.1999.  Being aggrieved by the unfair trade practice and deficiency in service on the part of Respondent, Appellant filed a complaint before the State Commission seeking (i) damages of Rs.5,00,000/-; (ii) interest for the delay in handing over possession from July, 1996 to February, 1999 amounting to Rs.9,09,600/-; and (iii) compensation of Rs.2,00,000/- towards mental agony and harassment.

3.     Respondent on being served filed a written rejoinder denying the allegations made by the Appellant and inter alia contented that the allegation of unfair trade practice in not allotting the flat as per the requirements of the Appellant is not borne out by the documentary evidence on record.  Appellant himself had written a letter on 23.06.1993 to the Respondent stating that a flat be reserved for him on the 10^th floor or if it is possible on the 11^th or 12^th floor.  Subsequently in his formal application for allotment, he again specifically indicated that the flat No.1410-A on the 10^th floor was acceptable to him and it was also confirmed in the Apartment Buyer’s Agreement signed between the parties.  There was never any request written or otherwise by the Appellant that he should be allotted a flat just below the penthouse. In fact Respondent vide letters dated 26.06.1993, 24.09.1997, 19.12.1997, 10.07.1997, 09.09.1997 and 04.08.1999 had clearly communicated to the Appellant that flat no. 1410-A had two floors above it, including the penthouse on the top floor.   Regarding the allegation of the Appellant that he was not liable to pay escalation costs because of the delay in handing over possession of the flat, for which Respondent solely was to blame, it was clearly stated in the Apartment Buyer’s Agreement that delay could be possible on account of various factors beyond the control of the Respondent and in the instant case the delay in handing over possession occurred because of time taken in getting necessary government clearances.  The escalation charges demanded by the Respondent were thus strictly in accordance with the terms of the Agreement and in fact no promise about any particular date for handing over the flat was made. Appellant took possession of flat no. 1410-A on 18.06.1999 and also sold the same.  Having done so, as per clause 20 of the Agreement, he had no claim against the Respondent for any reason whatsoever and, therefore, the present complaint filed by him was no longer maintainable.     

4.     The State Commission after hearing the parties and on the basis of evidence produced before it observed as follows :

“8.    After hearing the counsel for the parties and according careful consideration to the documents on record as well as the version of the O.P. reproduced from the written submission of the O.P., we find that the O.P. had vide letter dated 10-07-1993 admitted the allotment of a floor which was required by the complainant, i.e. immediately below the penthouse. However, the O.P. is harping on the number of flat without realizing that it had already agreed to allot a flat below the penthouse to the complainant. Confusion is being created by the O.P. regarding the number of the flat. Thus, if the complainant has suffered any loss, it was on account of non-allotment of flat immediately below the penthouse but subsequently he was allotted the flat and it was sold also. …

11.     Taking over all view of the matter and the breach of agreement by O.P., we deem that a lump sum compensation of Rs. 50,000/- would meet the ends of justice.”

        Hence, the present appeal.

5.     Appellant in person and Counsel for the Respondent made oral submissions.

6.     Appellant vehemently argued that the State Commission erred in granting him a token compensation after having concluded that there was a clear breach of the Agreement.  Appellant brought to our attention a letter dated 05.08.1999 in which Respondent had admitted that there appeared to be some misunderstanding vis-vis numbering of the flats as communicated to the Appellant vide Respondent’s letter dated 10.07.1993 indicating that there was no intervening floor between the flat allotted to Appellant and the penthouse.  Appellant contended that he had opted for flat no. 1410-A on the clear understanding that there was only the penthouse above his flat.  He had clarified the same in writing to the Respondent on 16.07.1997 and also alleged that it appeared that the building plans were arbitrarily changed and one more floor was constructed between his flat and the penthouse.  Since Appellant was working abroad he was not in a position to meet the Respondent frequently as a result of which he was misled and the sale of the flat was foisted on him.  Appellant wanted to buy the flat for his personal use and he had no option but to sell it because it was not as per his requirement.  Appellant, therefore, requested that the order of the State Commission be modified and he be given the compensation and relief sought by him before the State Commission.

7.     Counsel for Respondent denied the above allegations and stated that even Rs.50,000/- given to the Appellant by the State Commission as compensation was not based on the merits of the case but Respondent paid this amount to avoid unnecessary litigation.  More importantly Appellant had accepted the decree of the State Commission without any reservations and, therefore, the present appeal for enhancement of compensation is untenable.  It was reiterated that the Appellant without any reservation had taken possession of the flat in question on 18.06.1999 and having done so as per the Apartment Buyer’s Agreement he had no claim against the Respondent for any reason whatsoever.  On merits, it was contended that Appellant after booking the flat had never indicated that he wanted only a flat on a floor just below the penthouse.  In this connection, Counsel for the Respondent brought to our notice the letter dated 23.06.1993 from the Appellant to the Respondent requesting that “you reserve a flat for me in your building Windsor on the 10^th floor or if it is possible on the 11^th or 12^th floor”.  From this letter it is very clear that Appellant had made a specific request for allotment on the 10^th floor and reference to the higher floors was made only as an alternative.  Regarding the allegation that there was delay in handing over possession of the flat and also that the escalation charges were unwarranted, Counsel for the Respondent reiterated that these were covered under various provisions in the Apartment Buyer’s Agreement entered into between the parties and, thus, binding on the Appellant.  In view of these facts, the present appeal having no merit deserves to be dismissed.  

8.     We have carefully considered the submissions made by the parties and have also gone through the evidence on record.  Appellant having booked a flat in Beverly Park (II) in DLF Qutub Enclave, Gurgaon with the Respondent is not in dispute.  It is also a fact that Appellant had signed the Apartment Buyer’s Agreement accepting allotment of flat no. 1410-A on the 10^th floor and had consequently paid for the cost of the flat.  The main point in dispute leading to filing of the present consumer complaint is that the Respondent had misled the Appellant that the flat allotted to him was just one floor below the penthouse whereas the Appellant after having accepted the flat and signed the Apartment Buyer’s Agreement came to know only on 24.09.1997 that the Respondent had suo motu and arbitrarily built two floors above the flat allotted to him, as a result of which it was not immediately below the penthouse, as applied for by the Appellant.  Apart from this, Appellant has challenged the delay in handing over the flat and the consequent escalation charges as not being warranted.    

        After going through the evidence on record, we are unable to accept the above contentions of the Appellant.  In this connection, we note that vide letter dated 23.06.1993 written by Appellant to Respondent following discussions in the latter’s office, Appellant had requested that he be reserved a flat on the 10^th floor or if it is possible on the 11^th or 12 floors.  From this letter, it is obvious that the Appellant was fully aware before having entered into the Apartment Buyer’s Agreement that there were two floors above the 10^th floor i.e. the 11^th and 12^th floors.  Subsequently, in the application for allotment Appellant himself had specifically sought allotment on the 10^th floor with no condition that it should be just below the penthouse.  Some confusion regarding whether the flat was located on the 10^th floor or the 11^th floor may have arisen, as observed by the State Commission, because of a letter from the Respondent dated 10.07.1993, in which Respondent had stated that the building has ground floor + 10 floors and, therefore, flat no. 1410-A is actually on the 11^th floor but this error was subsequently clarified in various letters written by Respondent to Appellant.  Also in the Apartment Buyer’s Agreement entered into between the parties on 05.01.1994  it was clearly stated that flat no. 1410-A was on the 10^th floor.  Further, as stated earlier, there is no evidence written or otherwise that the Appellant had insisted at the time of his purchasing the flat that only a flat below the penthouse would be acceptable to him.  It was only in 1997 when the construction was almost completed that this issue was raised.  Appellant thereafter took possession of the flat without any protest in 1999 and also sold the same, which lends further credence to the Respondent’s contention that Appellant had no initial objection to the location of the flat on the 10^th floor irrespective of whether it was one or two floors below the penthouse and this objection was only voiced in 1997 i.e. three years after he had signed the Apartment Buyer’s Agreement. 

        Regarding the delay in handing over the possession of the flat and consequent escalation charges levied by the Respondent and objected to by the Appellant, we note that there are provisions pertaining to these possibilities under clauses 15, 16 and 17 of the Apartment Buyer’s Agreement entered into between the parties and, therefore, we do not find the Respondent guilty of any deficiency in service on this count as well.

9.     Keeping in view the above facts, we are unable to accept the present appeal and dismiss the same with no order as to costs.