Chandigarh

StateCommission

A/200/2015

M/s Parsvnath Developers Limited - Complainant(s)

Versus

Sh. Devender Shekhar - Opp.Party(s)

Ashwani Talwar, Adv.

21 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                      

First Appeal No.	:	200  of 2015
Date of Institution	:	19.08.2015
Date of Decision	:	21.08.2015

 

1. M/s Parsvnath Developers Limited, A Company incorporated under the provisions of the Companies Act 1956, having its registered office at 6th Floor, Arunachal Building, 19, Barakhamba Road, New Delhi.

Now having its Registered Office at Parsvnath Tower, Near Shahdara Metro Station, Shahdara Delhi-110032, through its Authorized Signatory Sh. R.C. Gupta, General Manager (CRM).

2. M/s Parsvnath Developers Limited having its Branch Ooffice at Parsvnath Builders, Pride Asia Project, Kishangarh Chowk, Chandigarh IT Park, Chandigarh, through its Senior Manager/Authorized representative.

……Appellants/Opposite Parties

V e r s u s

1. Sh. Devender Shekhar s/o Sh. Raj Kumar, resident of H.No.971A, PNB Street, Near Govt. Dispensary, Dhakoli, Zirakpur, Dera Bassi, Distt. Mohali, Punjab- 140603
2. Sh. Kapil Chauhan s/o Sh. Balbir Singh Chauhan, resident of H.No.971A, PNB Street, Near Govt. Dispensary, Dhakoli,       Zirakpur, Dera Bassi, Distt. Mohali, Punjab- 140603

              ....Respondents/Complainants

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by:Sh.Aftab Singh Khara, Advocate for the applicants/ appellants.

 

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

            This appeal is directed against the common order dated 06.05.2015, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly accepted the complaint, filed by the complainants (now respondents) and directed the Opposite Parties (now appellants) as under:-

“For the reasons recorded above in Consumer Complaint No.405 of 2014 titled as Sh. Amarpreet Singh & Anr. Vs. M/s Parsvnath Developers Limited & Anr., this consumer complaint is also partly allowed.  The  Opposite Parties are directed as under :-

i)      To refund the amount of Rs.8,49,657/- to the complainants alongwith interest @ 9% per annum from the respective dates of deposit till the date of realization.

ii)     To make payment of an amount of Rs.3.00 lakhs as compensation to the complainants for causing harassment and mental agony to them and indulging into unfair trade practice and being deficient in service.

iii)    To pay Rs.11,000/- to the complainants on account of litigation charges.

This order be complied with by  Opposite Parties within one month from the date of receipt of its certified copy failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, in both the cases, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(iii) above.”    

2.       The facts, in brief, are that the complainants approached the  Opposite Parties, for the purchase of a dwelling unit. It was stated that the representative of the  Opposite Parties showed the project/complex “Parsvnath Castle” to the complainants, comprising multiple apartments, in the shape of group housing complex.  The basic price of one flat/apartment (2 bedrooms, drawing/dining, kitchen, and 2 toilets) in the said project was quoted as Rs.13,15,821.50 Ps. calculated @ Rs.1253.16 per sq. ft. (equivalent to Rs.13,490.07 per sq. mtr.) of super built-up area of the flat and Rs.50,000/- for open car parking space. It was further stated that the Opposite Parties assured the complainants that possession of the unit, would be delivered within a maximum period of 30 months, positively. It was further stated that, as such, complainant No.1 filled in the application form dated 05.12.2007 and issued a cheque, in the sum of Rs.50,000/-, towards booking of an apartment in the complex of the Opposite Parties, under the name and style of “Parsvnath Castle”, Tehsil Rajpura, District Patiala. 
3.       It was further stated that the complainants were allotted flat bearing No.T-1-404, on fourth floor, Tower 1, having an approximate area of 1050 square feet, in the said project. The complainants opted for construction linked plan with down payment rebate of 12% to 14% for an approximate area of 1050 sq. ft. It was further stated that the complainants obtained loan from the HDFC Limited, Sector 8, to the tune of Rs.11,00,000/-.
4.       It was further stated that Flat Buyer Agreement dated 20.03.2008 (Annexure C-3) was executed between the complainants and Opposite Party No.1. It was further stated that, in the application form the basic price of the flat/apartment was mentioned as Rs.12,49,000/-, but, on the other hand, the same was increased to  Rs.13,15,821.50 Ps., in the Flat Buyer Agreement. It was further stated that, at the same time, it was also found that, at the time of booking, it was told that physical possession of the apartment would be handed over within a period of 30 months, whereas, according to Clause No.10 (a) of the Agreement, construction of the flat was likely to be completed within a period of 36 months, extendable by 6 months, from the date of commencement of construction, on receipt of sanction of building plans/revised building plans, approvals etc. It was further stated that the complainants had made the payments, as per the Agreement. It was further stated that the complainants visited the office of the Opposite Parties, a number of times, to know about the status of construction work, but they lingered on the matter, on one pretext or the other.  It was further stated that the complainants requested the Opposite Parties to refund the amount paid alongwith interest, but to no avail.  It was further stated that even after the lapse of 6 years, there was no sign of completion of construction and delivery of physical possession of the apartment, in the near future. 
5.       It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.8,49,657/- alongwith interest @24% P.A., from the respective dates of deposits till realization; pay Rs.5,250/- per month, from July 2010; Rs.3,41,649/- as interest paid by them, till April 2014; compensation, to the tune of Rs.3 lacs, for deficiency in rendering service, unfair trade practice, mental agony and physical harassment; and cost of litigation, to the tune of Rs.55,000/-.
6.       The Opposite Parties, in their joint written version, admitted that the complainants booked a residential unit, in question, in their project namely “Parsvnath Castle”. Execution of the Flat Buyer Agreement dated 20.03.2008, between the parties, was also admitted.  It was also admitted that the complainants had paid an amount of Rs.8,49,657/-, towards part price of the said unit. It was stated that construction at the site was in progress. It was further stated that delay was caused due to global recession, which was beyond the scope of the Opposite Parties. It was denied that the Opposite Parties had assured to hand over physical possession of the said flat, within a period of 30 months. It was further stated that, as per clause 10 (a) of the Flat Buyer Agreement dated 20.03.2008, time was not the essence of the contract. It was further stated that the delay caused in the completion of project would be duly compensated at the time of delivery of possession of the unit, in question, to the complainants. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
7.       In their rejoinder, filed by the complainants, they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version, of the Opposite Parties.  
8.       The Parties led evidence, in support of their case.
9.       After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly accepted the complaint, in the manner, referred to, in the opening para of the instant order. 
10.       Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
11.       Alongwith the appeal, an application under Section 5 of the Limitation Act, for condonation of delay of 66 days, was filed by the applicants/ appellants. It was stated, in the application, for condonation of delay that certified copy of the order dated 06.05.2015 was collected by the Counsel concerned on 14.05.2015, which was sent to the Chandigarh Office of the applicants/appellants on 19.05.2015. It was further stated that, thereafter, the case file was examined and sent to the Competent Authority of the applicants/appellants, at Delhi Office, for obtaining approval for filing the appeal. After obtaining approval from the Competent Authority, the case file was sent to the Legal Department, in the first week of June, 2015. It was further stated that, however, Advocates concerned, who were to prepare the appeal, were out of station, on account of summer vacations in the Courts at Delhi. It was further stated that when the said Advocates came back from their summer vacations, immediately, thereafter, the appeal was finally prepared on 10.07.2015 and was filed before this Hon'ble Commission. It was further stated that, on account of the reasons, referred to above, there was delay, in filing the appeal. It was further stated that delay, in filing the appeal, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
12.       We have heard the Counsel for the applicants/appellants, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.
13.       The first question, that falls for consideration, is, as to whether, there is sufficient cause for condonation of delay of 66 days, in filing the appeal, under Section 15 of the Act or not. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the  Punjab and  Haryana High Court,  that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bonafide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In  New Bank of India Vs. M/s Marvels (India): 93 (2001) DLT 558, Delhi High Court,  it was held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

14.       In  Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 19107 Punjab and Haryana 45, it was held as under:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.

15.         In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

16.          In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-

“The party should show that besides acting bona fide, it had taken all possible steps within its  power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”

17.         In Mahant Bikram Dass Chela Vs. Financial Commissioner and others, AIR 1977, S.C. 2221, it was held as under:-

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”

18.       In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-

“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”

19.         A bare reading of the first proviso, engrafted to Section 15 of the Act, makes it clear, that the material part of the language thereof, is pari-materia to Section 5 of the Limitation Act, 1963. Admittedly, the applicants/appellants, received  certified copy of the order impugned dated 06.05.2015, on 14.05.2014. The applicants/ appellants, failed to produce, on record, even a single document, to apprise this Commission, as to on which date, the case file was sent for obtaining approval of the Competent Authorities, for filing the appeal. Thus, the bald assertions of the applicants /appellants, in the application aforesaid, in the absence of any cogent and convincing evidence, cannot be taken into consideration. It may be stated here that, once certified copy of the impugned order, was received in the office of the applicants/appellants, on 14.05.2015, it was the bounden duty of the concerned Officer/Official(s), to take decision, within maximum two to three days, and forward the relevant file/ documents, to their Competent Authorities, for granting permission/approval to file the appeal. However, as stated above, there is nothing, on record, as to on which date, the file/documents and certified copy of the order impugned, were forwarded to the Competent Authorities of the applicants/ appellants, seeking approval for filing an appeal. Why it took 66 days, for obtaining approval of the concerned Authorities, for filing the appeal, is not known. Thus, in our considered opinion, no sufficient cause is made out, from the averments, contained in the application, for condoning the delay. It appears that after receiving certified copy of the impugned order, the concerned Officials of the applicants/ appellants/Opposite Parties, slept over the matter, and, ultimately, woke up from their deep slumber, after 66 days, when the instant appeal was filed. It could be said that the Officials of the applicants/ appellants were not diligent, in pursuing the matter. The prescribed period of limitation, as envisaged by Section 15 of the Act, for filing an appeal is 30 days, from the date of receipt of a certified copy of the order.  The applicants/appellants did not act, with due diligence, resulting into delay of 66 days, in filing the appeal, which is about more than two months, beyond the prescribed period of limitation. The cause set up by the applicants/appellants, in the application, for condonation of delay, could not be said to be plausible. The mere fact that the Officials of the applicants/appellants, acted in a leisure mood, without envisaging the consequences, which could ensue, on account of non-filing of an appeal, within the period prescribed, under Section 15 of the Act, does not mean that the applicants/appellants could be shown undue indulgence. The delay, in filing the appeal was, thus, intentional, wilful and deliberate. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 66 days, cannot be condoned. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. The application is, thus, liable to be dismissed.
20.          The next question, that arises, for consideration, is, as to whether, even if, sufficient cause is shown, it is obligatory, on the Commission, to condone the delay. The answer to this question, is in the negative. In  Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361, it was  held as under:-

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

21.       It is evident, from the principle of law, laid down in Ram Lal & Ors.’s case (supra), that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into  consideration,  all the  relevant factors, and it is, at this stage, that diligence of the party(s) or its/their bonafides, may fall for consideration. In the instant case, as stated above, it was obligatory, on the part of the applicants/ appellants, to take immediate steps to ensure that the appeal was filed within the prescribed period, as envisaged by Section 15 of the Act. However, the Officials of the applicants/appellants, just slept over the matter, and did not take the requisite steps to file the appeal, in time.  It was, thus, a case of complete lack of bonafides and inaction, on the part of the applicants/appellants. The principle of law, laid down in Ram Lal & Others’ case(supra) is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicants/appellants, in condoning the delay.
22.         Now coming to the merits of the appeal, the Counsel for the appellants, submitted that the District Forum awarded interest as also compensation, simultaneously. He further submitted that both the interest and compensation could not be awarded, as per the provisions of law. He further submitted that even the compensation awarded by the District Forum is excessive. He further submitted that the complainants were only entitled to compensation, as per Clause 10 (c) of the Agreement dated 20.03.2008, on account of delay, in handing over possession of the unit, in question. He further submitted that the District Forum could not grant compensation, beyond the terms and conditions contained in the Agreement. He further submitted that if the compensation @Rs.5/- per square feet of the super area, as provided in Clause 10 (c) of the Agreement Annexure C-3 is computed, that falls much less than a sum of Rs.3 lacs, awarded by the District Forum, as compensation on account of mental agony, physical harassment, deficiency in rendering service, and unfair trade practice. He further submitted that the order of the District Forum, being illegal and invalid is liable to be set aside.
23.       The first question, that falls for consideration, is, as to whether, the interest and compensation could be granted to the complainants, simultaneously or not.   The words ‘interest’ and ‘compensation’ are sometimes used interchangeably and, on other occasions, they have distinct connotation.  ‘Interest’ in general terms is the return or compensation for the use or retention by one person of a sum of money belonging to or owed to another.  In its narrow sense, ‘interest’ is understood to mean the amount, which one has contracted to pay for use of borrowed money.  In whatever category ‘interest’ in a particular case, may be put, it is a consideration, paid either for the use of money, or for forbearance in demanding it, after it has fallen due, and, thus, it is a charge for the use or forbearance of money. In this sense, it is a compensation, allowed by law or fixed by parties, or permitted by custom or usage, for use of money, belonging to another, or for the delay in paying money after it has become payable. Similar principle of law was laid down in Ghaziabad Development Authority vs. Balbir Singh, Appeal (Civil) No.7173 of 2002 decided on 17.03.2004 by the Hon'ble Supreme Court of India. In Paramvir Singh Vs P.H.Houses Pvt. Ltd. Revision Petition No.2779 of 2010 decided on 11.5.2011  decided by the National Consumer Disputes Redressal Commission, in similar circumstances, when possession of the plot was not given by the builder to the complainant for a long period, refund of the amount deposited by him with interest and compensation were granted. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case.  The complainants were, thus, entitled to interest, as well as compensation simultaneously.  The submission of the Counsel for the appellants/Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
24.       It may be stated here, that the interest was granted, for improper and illegal retention of the amount deposited with the Opposite Parties, by the complainants, for a long time. Had the amount been refunded to the complainants, immediately after the stipulated date, when the project had not been completed, for want of the basic amenities at the site and construction of the unit, in question, they would have invested the same, in some business or deposited the same in the bank, as a result whereof, they would have got interest thereon. For the financial loss, which the complainants suffered, interest @ 9% p.a., on the amount deposited, granted by the District Forum, could be said to be just, fair and reasonable. The findings of the District Forum, in this regard, being correct are affirmed. The submission of the Counsel for the appellants/Opposite Parties, in this regard, being devoid of merit, must fail and the same stands rejected.
25.       The next question that falls for consideration is, as to whether, the District Forum was right, in awarding  compensation to the tune of Rs.3 lacs, for mental agony, physical harassment, deficiency in rendering service and adoption of unfair trade practice or the same is excessive. It may be stated here that according to Section 14(d) of the Act, the Consumer Foras can grant compensation, to the complainants. The word ‘compensation’ is again of very wide connotation.  It has not been defined, in the Act. According to the dictionary, it means compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss.  Therefore, when the Consumer Foras have been vested with the Jurisdiction to award value of goods or services and compensation, it has to be construed widely enabling the Consumer Foras, to determine compensation, for any loss or damage suffered by the consumers, which in law is otherwise, the wide meaning of ‘compensation’. The provision, in our considered opinion, enables the consumers to claim and empowers the Consumer Foras, to redress any injustice done to the complainants. The Commission or the Forum, in the Act, is, thus, entitled to award not only the value of the goods or services, but also to compensate the consumers, for injustice suffered by them. In this case, the amount of Rs.8,49,657/- was deposited with the Opposite Parties, towards part price of the said unit. The complainants  booked the unit, in the hope of getting its possession, within the stipulated period. Their hopes were dashed to the ground, when they saw that there was no development/construction activities, at the spot. The complainants sought refund of the amount deposited and not possession. As such Clause 10 (c) of the Agreement could not be invoked. Even if, it is assumed, that this Clause could be invoked, if compensation is calculated @Rs.5/- per square feet of the super area, per month, from 19.03.2011 (36 months from the date/month of start of construction i.e. from March 2008) that also comes to Rs.2,78,250/- (i.e. 1050 square feet x Rs.5/- x 53 months upto 19.08.2015) i.e. near about Rs.3 lacs. The Opposite Parties were not entitled to six months beyond 36 months, as they failed to produce on record any cogent and convincing evidence that the construction could not be completed within 36 months from 20.03.2008 due to the circumstances beyond their control. Therefore, it could not be said that compensation, in any way, granted by the District Forum was excessive. On the other hand, it could be said to be fair, reasonable and adequate. The submission of the Counsel for the appellants/Opposite Parties, in this regard, being devoid of merit, must fail and the same stands rejected.
26.       No other point, was urged, by the Counsel for the applicants/appellants.
27.       In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
28.       For the reasons recorded above the application for condonation of delay of 66 days, being devoid of merit, must fail, and the same is dismissed. Consequently, the appeal under Section 15 of the Act, is also dismissed, being barred by time, as also on merits, at the preliminary stage, with no order as to costs.
29.       Certified copies of this order, be sent to the parties, free of charge.
30.       The file be consigned to Record Room, after completion

Pronounced.

August 21, 2015

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER

 

 

Rg