APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :  6^th DECEMBER 2017

O R D E R

PER DR. B.C. GUPTA, MEMBER

          This appeal has been filed under section 19 read with section 21(a)(ii) of the Consumer Protection Act, 1986 against the impugned order dated 29.05.2015, passed by the Rajasthan State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in Consumer Complaint No. CC/74/2012, vide which, the said complaint was allowed and the appellants/opposite parties (OPs) were directed to allot and handover the possession of house C-1/201, Sahara City Homes, Jaipur to the respondent/complainant within three months from the date of passing the order.  The appellants/OPs were also directed to pay a sum of ₹1 lakh as damages against mental agony etc. to the complainant and ₹10,000/- as cost of litigation.

2.       Briefly stated, the facts of the case are that the respondent/complainant Rajinder Kumar booked a house with the appellants/OPs bearing C-1/201 measuring 116.11 sq. mtr. in the proposed Sahara City Project at a tentative cost of ₹23.12 lakh.  The complainant paid a total sum of ₹3,46,890/- to the OPs by means of instalments paid on different dates.  The said booking was made in response to an advertisement given by the appellants/OPs in the newspaper “Punjab Kesari” Rohtak.  As per the terms and conditions of the scheme, 5% of the total cost of the house was to be deposited at the time of booking and 10% of the cost was to be paid in 24 instalments of ₹9,635/- each.  The balance 85% of the amount could be paid as per 3 different options listed in the scheme.  It has been alleged that after the deposit of 15% of the money with the appellants/OPs, no further communication was received from them, neither possession of the property was offered in spite of repeated requests and visits to them.  It was also alleged that the OPs failed to construct the said unit within the time as promised in the agreement letter and hence, failed to deliver the actual physical possession within the stipulated period.  The complainant filed the consumer complaint in question, seeking directions to the appellants/OPs to hand over the physical possession of the unit in question, to the complainant and also to pay interest on the amount deposited @18% p.a. from the date of deposit till the date of handing over the actual physical possession and also to pay a sum of ₹1 lakh as compensation against mental agony and ₹11,000/- as cost of litigation. 

3.       The complaint was resisted by the appellants/OPs by filing a written reply before the State Commission in which they stated that the complaint was not maintainable, as the matter was to be referred for arbitration in view of the terms and conditions of the booking.  There was no deficiency in service on their part in any manner.  Moreover, intricate question of facts and law could only be adjudicated by a Civil Court of competent jurisdiction.  Further, as per clause 14(iii) of the agreement, in the wake of any unforeseen/unavoidable reason or circumstances, the appellants/OPs were required to refund the amount deposited by the complainant alongwith opportunity loss of 5% to 12.5% of the booking advance only. 

4.       Vide impugned order dated 29.05.2015, the State Commission held that neither the house allotted to the complainant had been constructed, nor the possession of the same offered to the complainant, nor the booking amount was refunded to him after permissible deduction.  The State Commission also concluded that the allotment in question could not be cancelled due to non-payment of the necessary amount to the OPs.  The State Commission accordingly, allowed the consumer complaint and directed the appellants/OPs to allot and hand over the possession of house No. C-1/201 Sahara City Homes, Rohtak to the complainant within three months from the date of the order.  The State Commission also awarded a sum of ₹1 lakh as compensation for mental agony and ₹10,000/- as cost of litigation to the complainant.   Being aggrieved against the said order of the State Commission, the appellants/OPs are before this Commission by way of the present first appeal. 

5.       During arguments, it was contended by the learned counsel for the appellants that the complainant had filed a consumer complaint, bearing No. 776/2010 before the District Forum Rohtak, which was returned to him by the said Forum vide order dated 03.04.2012, saying that the matter was not within their territorial jurisdiction.  An appeal filed by the complainant against the order of the District Forum before the Haryana State Commission was dismissed by them vide order dated 10.05.2012.  The complainant filed a fresh complaint bearing No. 36/2012 before the Haryana State Commission, which was dismissed as withdrawn vide order dated 16.07.2012 with liberty to file the complaint before a court of competent jurisdiction.  The complaint bearing No. 74/2012 was then filed on 08.11.2012 before the Rajasthan State Commission, but the said complaint was barred by limitation, as it was filed after 115 days of the order passed by the Haryana State Commission.  The consumer complaint, therefore, deserved to be dismissed on this ground alone.  The learned counsel further stated that the complainant had made payment of ₹3,46,890/- only to the appellants/OPs as 15% of the value of the property.  The balance 85% amount of the property was still to be paid.  Despite sending various letters to the complainant on different dates, followed by reminders, copies of which had been placed on record, the complainant failed to remit the balance amount to them and hence, the allotment in question was ordered to be cancelled.  The learned counsel further argued that the impugned order was not in accordance with law, as the OPs could not be expected to provide the unit in question to the complainant at the price prevalent in the year 2004.  The learned counsel has drawn attention to clause 14(iii) in the terms and conditions of the allotment, where it had been laid down that in the event of any unforeseen/unavoidable reasons for not-handing over the property, the amount deposited was to be refunded with an interest of 5% to 12.5% of the booking advance.  The learned counsel further argued that the delay in filing the present appeal should be condoned in view of the averments made in the application for condonation of delay.  The said delay had occurred as considerable time was spent in the movement of documents from Jaipur office to the learned counsel at Delhi and also for getting approval from their Lucknow office.

6.       Per contra, the learned counsel for the complainant/respondent stated that the pecuniary jurisdiction to handle the consumer dispute was with the State Commission only, as the value of the property in question was ₹23.12 lakh.   In accordance with the order pronounced by a three-member Bench of this Commission in “Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Private Limited [CC/97/2016 decided on 07.10.2016]”, the total value of the property was to be taken into consideration for the purpose of deciding the pecuniary jurisdiction.  The learned counsel further stated that time was the essence of the contract, but the appellants/OPs had failed to deliver the possession of the property in question, as per the time schedule promised by them.  In fact, the appellants/OPs had admitted in the Memo of Appeal that as per the advertisement published by them in the daily newspaper “Punjab Kesari” dated 12.12.2014, the houses were to be constructed in 102 cities in the first Phase and the possession of the house was to be handed over till 2007.  The appellants/OPs, however, failed to deliver the same within time.  The learned counsel further stated that the order passed by the State Commission was in accordance with law and the said Commission had rightly observed that the allotted house had not been constructed, neither the possession of the same had been offered to the complainant/respondent.  As per the allotment letter dated 03.06.2009 sent by the appellants/OPs to the complainant, the possession of the house was proposed to be handed over within 38 months from the date of allotment, but the appellants/OPs failed to keep their promise.

7.       I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

8.       The first issue that merits consideration is that there is a delay of 126 days in filing the present appeal, although the appellants have mentioned in their application for condonation of delay that there was a delay of 96 days.  The impugned order is dated 29.05.2015, against which the appeal was filed on 06.11.2015.  It has been stated that a copy of the impugned order was received by the appellant on 03.06.2015.  From the said date, there is a delay of 126 days in filing the appeal.  A perusal of the application for condonation of delay reveals that the delay occurred, as the papers had been moving from Jaipur to New Delhi and Lucknow for completion of various formalities.  However, the exact particulars of the events that took place have not been described in the application for condonation of delay.  There is no cogent and convincing explanation, therefore, about the delay in filing the current appeal.  In case, the contention of the appellant that the delay occurred due to procedural formalities only, is to be believed, there shall be no sanctity left to the provisions contained in law for fixing the period of limitation for filing appeals/revision petitions etc.  It is held, therefore, that there is no adequate justification for the condonation of delay in the present case and the appeal is liable to be dismissed on this ground alone.  I am supported in this conclusion by an order passed by the Hon’ble Apex Court in “Anshul Aggarwal vs. New Okhla Industrial Development Authority”, [IV (2011) CPJ 63 (SC)], in which it has been held that:-

 “It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.”

9.       The next issue for consideration in the matter is with regard to the pecuniary jurisdiction of the consumer Fora to handle the consumer complaint in question.  It has been adequately made clear by a three-member Bench of this Commission in “Ambrish Kumar Shukla & Ors. vs. Ferrous Infrastructure Private Limited” (supra), that the total value of the property in question is to be taken into consideration for deciding the issue of pecuniary jurisdiction.  The said value being more than ₹20 lakh, it is evident that the consumer complaint could be heard by the State Commission only.  It is held, therefore, that the impugned order has been passed by the State Commission in exercise of proper pecuniary jurisdiction.

10.     The main point for consideration in the matter is that there was delay on the part of the appellants/OPs in providing the property in question, in accordance with the promises made by them through newspapers and through correspondence with the complainant/respondent.  The memo of appeal filed by the appellants/OPs itself specifies that they had proposed to construct a chain of houses in 217 cities of India in the Sahara City Scheme and invited applications for booking of the same.  As mentioned in the advertisement, it was stated that in the first step, the houses shall be constructed in 102 cities and the possession was to be handed over uptil 2007.  In the instant case, the allotment letter is dated 03.06.2009, a copy of which has been placed on record.  It is clearly stated in the said letter that the possession of the unit allotted to the complainant was to be handed over within 38 months from the date of allotment.  There is not an iota of evidence produced by the appellants/OPs to say, as to when the said units were completed and when the appellants/OPs were in a position to deliver the possession of the same.  The only contention made by the appellants/OPs is that the complainant failed to make payment of the balance amount to them, despite sending letters and reminders to him from time to time.  The State Commission observed, however, that there was no documentary evidence to substantiate the fact that these notices were ever sent/delivered or received by the complainant.  The State Commission have further observed that as per clause 14(iii) of the terms and conditions of the booking, the OPs were bound to refund the amount to the complainant, subject to deduction of opportunity loss of 5% to 12.5% of the booking advance, in case the complainant failed to pay the money due to unforeseen circumstances.  The State Commission have rightly observed that after the allotment of the house stood cancelled by the OPs, they were bound to refund the amount to the complainant in terms of the terms and conditions as stated above, but the OPs failed to do so, which in itself amounts to unfair trade practice on their part.  Another observation of the State Commission that neither the allotted house had been constructed, nor possession of the same offered, has not been controverted by the appellants/OPs by any averments/documents produced on record.

11.       Based on the discussion above, it is held there is no illegality, irregularity or jurisdictional error in the order passed by the State Commission, which may require any modification in the exercise of the appellate jurisdiction of this Commission.  The instant appeal is, therefore, ordered to be dismissed and the impugned order passed by the State Commission is upheld.  There shall be no order as to costs.