RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
UTTAR PRADESH LUCKNOW
APPEAL NO. 860 OF 2015
1. Deepak Ansal (Chairman & Managing Director) M/s Ansal Housing & Construction Ltd, 15, U.G.F. Indra Prakash, 21 Barakhamba Road, New Delhi
2. Manager, M/s Ansal Housing & Construction Ltd, Shop No. 6, First Floor, Opposite M.L.B. Medical College, Jhansi
Both through Dy. Manager (Legal) in the office of Ansal Housing & Construction Ltd, LGF 151, Khajana Market, Aashiana Colony, Lucknow
Appellants
Versus
1. Pawan Jain son of Shri P.C. Jain, resident of ‘Shanker Bhawan, 95/1, Civil Lines, Jhansi
2. Rajendra Kumar Agarwal, Advocate, Son of Shri Shanker Lal Agarwal, Advocate, resident of 193, Mani Vihar Colony, Jhansi
Respondents
BEFORE
HON’BLE MR. JUSTICE VIRENDRA SINGH, PRESIDENT
HON’BLE MR. UDAI SHANKER AWASTHI, MEMBER
For the Appellants : Sri V.S. Bisaria , Advocate
For the Respondents : Sri Alok Sinha, Advocate
DATED: 21.08.2015
JUDGMENT
MR.JUSTICE VIRENDRA SINGH, PRESIDENT
This appeal has been preferred by the appellants/opposite parties against the judgment and order dated 08.04.2015 passed by the District Consumer Forum, Jhansi in Complaint Case no. 130 of 2014 (Pawan Jain Tanai Sri P.C. Jain and Rajendra Kumar Agarwal versus Deepak Ansal (Chairman & Managing Director) M/s Ansal Housing & Construction Ltd, New Delhi and Manager M/s Ansal
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Housing & Construction Ltd, Jhansi) wherein the complaint of the complainant has been allowed against the opposite parties/appellants for payment of interest @ 18% p.a. on the sum deposited by the complainants/respondents with the opposite parties/appellants in lieu of the house to be constructed by the opposite parties and the possession to be delivered within the stipulated time and which could not be complied with by the opposite parties.
We have heard Sri V.S. Bisaria, learned counsel for the appellants and Sri Alok Sinha, learned counsel for the respondents.
As per the appellants, in the year 2010 the respondents/complainants were interested in booking a villa in the project projected by the appellants/opposite parties and the complainants applied jointly for a villa, thereby signing the Provisional Booking application form/allotment letter. Vide Clause 23 and 24 of the Application Form/Allotment Letter, it was clearly stated that in the case of default in payment, booking of the respondents may be cancelled at the sole discretion of the appellants and 20% of the basic sale price constituting earnest money so deposited shall be forfeited. Further other relevant Clause 32 and 33 disclosed that on delivery of possession, it was averted that physical possession of the said unit shall be delivered to the intending allottees after the same is ready for possession and the sale deed has been registered, provided all the amounts due from the intending allottees are paid and the intending allottees shall take possession of the said unit within 30 days of the company giving written notice to the intending allottees intimating that the residential unit is ready for physical possession. A Unit No. 44 was allotted to the complainants on a basic cost of Rs.41,82,928/-. The complainants did not make payment according to plan which attracted levy of interest as per Clause 21 of the allotment agreement providing charging of interest rate @ 21% compounded quarterly on delayed payments/outstanding. Inspite of possession letter having been issued on 13.11.2014, the appellants gave time to the respondents to make the payment but the respondents did not clear the dues towards EDS, club fees, Allied charges and taxes which is essential requirement to start process of actual possession. Agreement Clause 29 of allotment letter provides amongst others, that developer shall endeavor to give possession of the Unit to the allottees within a period of 36 months from the date of receipt of allotment letter. The respondents filed the
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complaint before the District Consumer Forum claiming compensation for delayed possession which was contested by the appellants but the learned District Consumer Forum, Jhansi without appreciating the contentions and objections of the appellants allowed the complaint in haste whereby the appellants were directed to pay interest as aforesaid. The District Consumer Forum did not consider that the respondents are not consumers under Section 2(1)(d) of the Consumer Protection Act as the complainants had booked the Villa just for commercial purpose with a view to resell the same, palpably stands proved by merely having a look on description of memo of parties and supporting affidavits of both the respondents as there is no relation whatsoever between them except business relations. The complainants are not relatives and they are residing in their own houses. The complaint being beyond pecuniary jurisdiction of the District Consumer Forum. Jhansi has been wrongly entertained by the District Consumer Forum and the respondents sought interest @ 21% on a sum of Rs.40,46,285/- from 09.01.2013 and from 20.12.2014 on a sum of Rs.5,82,221/- till the date of transfer of possession and Rs.3 lacs towards compensation which aggregates more than Rs.20 lacs and the District Consumer Forum did not consider this fact on record. The appellants were not deficient in any service and the respondents have not quantified as to how a sum of Rs.3 lacs is claimed as compensation towards mental agony and harassment etc and the impugned judgment is erroneous, factually wrong and without appreciating the material available on record and against the impugned order the appeal is worth allowed.
Vide written arguments filed by the respondents/complainants it is contended that both the respondents/complainants jointly booked a Unit no. 44 on 20.12.2009 and the agreement of allotment was executed in between the parties for total cost of Unit for R?s.41,82,928 including PLC but excluding EDC, Mandatory Club Fees, Power Back up Charges. The complainants paid 95% of the total cost of unit i.e. Rs.40,46,265.08 plus part development charges and service tax as per Construction Linked Payment Plan laid down in Schedule of the Agreement within the period of 36 months from the date of booking excluding 05% of basic amount EDC. The appellants have confirmed the receipt of that amount vide their letter dated 18.06.2014 and thereafter the respondents/complainants made full and final payment of the unit to the tune of Rs.5,82,221/- on 20.12.2014 as demanded by
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the appellants vide letter dated 13/15.11.2014 which includes Basic charges, External Development Charges etc. and thus the complainants paid a total sum of Rs.46,28,486/- but still not received the possession of the house/unit which amounts deficiency in service and unfair trade practice of the appellants/opposite parties and therefore, the complainants were constrained to file the complaint before the District Consumer Forum for payment of interest on the deposited amount till the date possession and compensation for harassment which is partly allowed by the District Consumer Forum vide impugned order against which this appeal has no force.
It is also contented on behalf of the complainants that the opposite party is demanding interest of Rs.12,329/- @ 21% a compounded quarterly on club fees of Rs.12,500/- which was earlier not demanded by the opposite parties. The entire payment was timely made by the complainants. The appellants are not able to show default or lapses on the part of the complainants/respondents. The appellant vide letter dated 10.03.2015 has also accepted the receipt of the balance 05% payment to the tune of Rs.5,82,221/- on 20.12.2014.
It is further submitted by the complainants that it is very much regretted that even after making the payment the appellant has withhold the possession of the Villa while the opposite party was duty bound to give delivery of the Villa in the stipulated period of 36 months. The allegations of the opposite parties that the complainants are not the consumer and booked the Unit for investment purpose and they have business relation are wrong. The fact is that the both the complainants are family friends for last 40 years and both the complainants do not have any house in Jhansi or any other place in India and one of the complainants is living in rented house since last 20 years and the other is living with his father and it is very much surprised that how the opposite parties assumed that Villa was booked for commercial purpose. Since the complainants have claimed relief merely for interest from the opposite parties which does not exceed the pecuniary limit of Rs.20 lacs for the purpose of jurisdiction of the District Consumer Forum, therefore, the objection pertaining to jurisdiction of the District Consumer Forum is also baseless. There had been no Force Majeure existed in the present case so that it may be stated that appellants were not able to deliver possession in time.
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Hence the appeal deserves to be dismissed.
After hearing of both the parties we have found that the Villa was booked by the complainants jointly and a total sum of Rs. 46,28,486/- has been paid to the opposite parties. The possession is not still delivered by the opposite parties to the complainants.
Admittedly the possession has not been delivered by the opposite parties to the complainants within the stipulated time agreed between the parties. The District Consumer Forum held that had there been the possession delivered by the opposite parties to the complainants , either the complainants would have let out the house or would have lived in their own house and thus the District Consumer Forum allowed interest to be paid by the opposite parties on the amount deposited by the complainants. We are not convinced with the finding of the District Consumer Forum in this regard because there is a landmarked judgment on this fact as to whether the allottees are entitled to get the interest on their deposits, if the possession is being given or proposed to be given by the builders. The law is very well known in this regard laid down by the Hon’ble Supreme Court in the following cases:
“GDA v. Balbir Singh, (2004) 5 SCC 65, wherein the Apex Court has held as follows;
Where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure, the Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss, the Commission/Forum may also compensate for harassment/injury, both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.
That compensation cannot be uniform can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way
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that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a greater loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher.
Haryana Urban Development Authority vs Raje RamI (2009) CPJ 56 (SC),
wherein Hon'ble Supreme Court held that where possession given at old rate, party has got benefit of escalation in price of land, interest should not be awarded on amounts paid by allottees due to delay in allotment.
Hon'ble NCDRC in a case of Ashok Khanna versus GDA IV (2009) CPJ 115 (NC) has held that wherein possession delayed and deficiency in service is alleged and time not essence of contract is proved by Brochure and the complainant not rescinded contract due to non-performance rather accepted delayed performance, the question of breach of contract requiring payment of damages does not arise in such cases. Relevant para 15, 17 and 18 of above case are as follows ;
15. A bare reading of this clause shows that time was not the essence of the contract. The period of 2 years for completion of construction was given on estimate basis. The words “expected to be completed” denotes that the time was not the essence of the contract. Had the time been the essence of the contract, then, the word “expected” would have not been used and, instead, definite period would have been given for delivery of possession.
17. The point before us is as to whether the facts and circumstances of this case warrant a finding of negligence in delivery of possession on the part of GDA necessitating award of compensation by way of interest? The brochure relating to GDA Scheme did not mention any specific date for delivery of possession of the flats. No agreement was entered into between the parties stipulating any time for performance or delivery of flats. The only document on which reliance is being placed by both the parties is the brochure in which the expected date of completion of construction is mentioned to be 2 years. In the absence of any agreement making time to be the essence of the contract or agreement or promise held the GDA cannot be
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held negligent in providing the service requiring the GDA to either pay compensation or interest on the deposited amount to the petitioner.
18. The petitioner did not rescind the contract on the ground of non-performance. He accepted the delayed performance in terms of the contract. Under the circumstances, the question of any breach of contract or agreement did not arise which could lead to the payment of damages under the general law governing the contract. Petitioner is also not entitled to any interest because he has the benefit of appreciation in value.”
In the light of the aforesaid law laid down by the Hon’ble Apex Court we are of this view that the District Consumer Forum committed error thereby awarding interest on the deposits of the complainants. So far as the question of rent payment is concerned, there is no finding or evidence on record to show that the complainants are living in the rented accommodation. Hence the interest allowed against the established law on this point cannot be held justified and the appeal deserves to be allowed in this regard.
Though the learned counsel for the respondents/complainants took recourse of the law laid down by the Hon’ble N.C.D.R.C in “Consumer Case No. 282 of 2012 Dewan Ashwani and 7 others versus Unitech Reliable Projects Private Limited decided on 07.05.2015” , “Consumer Case no. 427 of 2014 Shri Satish Kumar Pandey and another versus M/s Unitech Limited” and III (2013) CPJ 247 (NC) Silver City Housing and Infrastructure Ltd and another versus Sumit Kumar” wherein the interest has been awarded on the deposit of the complainant. With due regard to the judgments of Hon’ble N.C.D.R.C , we are of this view that in the case of Dewan Ashwani and 7 others there was the case of refund of the amount and not for delivery of possession. Hence the facts of that case being not similar to the case of the complainants before us, the law laid down in that case is of no help to the complainants . So far as the question of the judgment delivered by the N.C.D.R.C. in the case of Satish Kumar Pandey and another is concerned, the judgment delivered by the Hon’ble N.C.D.R.C is also not of any help to the complainant on this subject there being the established law laid down by the
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Hon’ble Apex Court as is discussed above as there is no evidence on record that the complainants are living in any rented accommodation and paying rent or the alleged house is/was capable of fetching any rent. Hence we do not find any help to be rendered to the complainants in the light of the judgment delivered by the Hon’ble N.C.D.R.C in the case of Satish Kumar Pandey.
Though the appeal deserves to be allowed merely on this ground as discussed above but since two other points have also been raised in this appeal we would like to discuss these points also.
Learned counsel for the appellants contended thereby submitting that the complaint was not entertainable by the District Consumer Forum being beyond the jurisdiction vested in the District Consumer Forum and the cost of the flat since there had been to the tune of Rs.41,82,928/-, therefore, the cost of the flat shall be included in the pecuniary jurisdiction of the District Consumer Forum. In this regard learned counsel for the appellant took recourse of the law laid down by us in the “Appeal no. 1833 of 2013 M/s Supertech Limited versus Mahendra Kumar Saxena and others decided on 10.02.2015” wherein we have held that the value of the Villa will be considered in the valuation for consideration of the pecuniary jurisdiction of the District Consumer Forum. We are not convinced with this contention of the learned counsel for the appellants because in that case of M/s Supertech Limited versus Mahendra Kumar Saxena the possession was sought by the complainant and therefore, the valuation of the flat was considered to be added for the purpose of valuation for the consideration of the pecuniary jurisdiction of the District Consumer Forum but here in this case before us since the possession has not been sought by the complainants/respondents and merely the interest is sought to be allowed to the complainants on their deposits upto the limit of Rs.15,39,518/- and a further sum of Rs.2,00,000/- towards compensation and Rs.1,00,000/- towards cost of the petition aggregating the valuation of the complaint to the tune of Rs.18,39,518/-, we are not convinced with the contention
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of the learned counsel for the appellants that the District Consumer Forum was not having jurisdiction for entertaining the complaint rather in our view for the valuation of below Rs.20,00,000/- the pecuniary jurisdiction is vested in the District Consumer Forum.
One more question is also raised by the appellants that the respondents/complainants do not come within the definition of Consumer there being their case for getting the allotment of the house for commercial purpose as is also held by the District Consumer Forum that if the possession of the house would have been given by the opposite parties to the complainants , the complainants would have been in a position to let out the flat for the purpose of rent. We are not convinced with this contention too of the learned counsel for the appellants because by mere finding of the District Consumer Forum for this purpose that the house may have been rented out, the nature of the allotment is not changed and since there had been no case of the complainants /respondents that they have booked the house for the purpose of rent, it cannot be said that the complainants were intending or are intending to have the flat for commercial purpose, merely on this ground too that both the complainants are not in relation. Any two persons may unite to live jointly, there is no ban on such type of unity and unless it is proved that the complainants there being not in relation were certainly intending to have the flat for the purpose of rent, this contention is not acceptable. There have been no evidence in this regard that the complainants were/are intending to have the possession of the house for the purpose of rent. Hence this contention of the learned counsel for the appellants is also not tenable
Looking into the entire facts and circumstances and the aforesaid discussions and this fact too on record that the possession letter has been issued to the complainants by the opposite parties on 13.11.2014 and the complainants have already deposited the amount of Rs.40,46,265.08 earlier being 95% of the total cost and a sum of Rs.5,82,221/- alleging the entire payment made in full and final and the appellants also intend to deliver the possession to the complainants, we do find force in this appeal which deserves to be allowed.
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ORDER
The appeal is hereby allowed. The impugned order is set aside.
Parties shall bear their own costs.
(JUSTICE VIRENDRA SINGH)
PRESIDENT
(UDAI SHANKAR AWASTHI)
MEMBER
Asif
Steno-Court no.1
