NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
                                                NEW DELHI.

 

                                  

                    ORIGINAL PETITION NO. 190 OF 2000

         

 

Kunj Behari Mehta  & Anr.               …      Complainants

              Versus

Ansal Properties & Industries Ltd. …      Opposite Party

 

 

BEFORE:

 

      HON’BLE MR. JUSTICE M.B. SHAH, PRESIDENT.

      HON’BLE MR. ANUPAM DASGUPTA, MEMBER.    

 

 

For the Complainant    …      Mr. S.K. Dholakia, Sr. Advocate

                                                With Mr. Rajesh Lathigara, Advocate     

 

For the Opposite Party          …      Mr. Avtar Singh, Advocate.

 

 

Dated:  12th MAY, 2008

 

O  R  D  E  R

 

 

JUSTICE M.B. SHAH, J.,  PRESIDENT

 

                   Can a builder after agreeing to deliver the possession within a stipulated time,  raise a contention that as the price of the  flat/property has gone up, it should not be directed to pay any compensation or to pay compensation  at reduced rate for delay in delivering  the possession of the property?   

 

                   In our view  such contention of any builder is unjustified and unreasonable because after sale of the property all the benefits accrue to the purchaser and not to the vendor.  In any case, if  such contention is  accepted, the builders/contractors would earn crores of rupees by delaying  the delivery of the possession  of the flat/property  for months together for one reason or the other.

 

Facts:

 

                        The Complainants have approached this Commission on 3rd May, 2000 with a prayer that  the Opposite Party – Ansal Properties & Industries  Ltd.,  be directed to deliver  possession of  apartment No.502,  on 5th floor, E Block, Celebrity Homes and also to pay interest @ 24%  per annum  on Rs.26,26,790/-, i.e.,  the amount  deposited by them with the Opposite Party,  w.e.f. 10.10.1998 till the date of delivery of possession.   In  the alternative, they have prayed that  if the  Opposite Party, is unable to deliver the possession of the apartment, then the Opposite Party be directed to refund the amount of Rs.26,26,790/-  to the Complainants   with interest @ 24%  from  the date of  payment  of the instalment  till the date of actual realization from the Opposite Party.

 

                   On the said  complaint, on  19th December, 2000, this Commission  had issued notice to the Opposite Party.  However, the matter remained pending on one ground or the other.  When it came up for hearing on 7th  December, 2007, the matter was adjourned   so as to enable the parties to explore the possibility of  a compromise.   On that date it was agreed by the Complainants that they would deposit Rs.5,58,000/- with the  Registrar of this Commission  on or before 12th December, 2007  and the Opposite Party would deliver the possession of the flat  to the Complainants on or before 19th December, 2007.   This agreement was without prejudice to the contentions raised  by  both the parties before this Commission.  It was also pointed out by the learned counsel for the  Opposite Party that while calculating the amount of Rs.5,58,000/-, the Opposite Party   had not considered the maintenance charges which were required to be paid by the Complainants  from the date of  offer  of possession,   i.e.,  from September, 2003 and, hence, that issue be kept open for arguments at the time of final hearing.   Order was passed accordingly.

 

                   Again, when the matter came up for hearing on 30th April, 2008,  the learned counsel appearing on behalf of the Complainants submitted that for unjustified  delay  in delivering the possession of the apartment  from 10th  October, 1998 till 20th December, 2007, the Opposite Party should be directed to pay interest @ 24% per annum on the amount deposited by the Complainants.  Further, reliance was placed on the receipt dated 3rd September, 1996 and  covering letter dated 28th August, 1996 to the effect that  interest @ 17% per annum   would be payable by the  Opposite Party on all advance  deposits  provided the entire payment is made in one go.  On that basis , the Complainants deposited the  6th, 7th, 8th and 9th instalments  for which receipt was issued  by the Opposite Party  on 3rd September, 1996.  On that receipt,  it was specifically mentioned, “This payment is to confirm that the 6th, 7th, 8th and 9th instalments are made in advance and 17% interest would be allowed”.

 

                   For verification of the said letter and the receipt, time was given to the learned counsel for the  Opposite Party.  At the time of hearing, learned counsel for the Opposite Party did not  dispute the said letter or the receipt.

 

                   With this background, we would refer to the agreement executed between the parties with regard to sale of the apartment which was to be constructed by the Opposite Party.   The agreement is dated 2nd March, 1995.  As per the said agreement, the Opposite Party was to construct the Celebrity Homes, Palam Vihar with  certain specifications as provided therein  and the Complainants were required to the pay basic sale price of Rs.28,38,000/-,  external development charges of Rs.89,870, charges of Rs.1,00,000/- for car parking  space in the basement,  and club membership  fee of Rs.20,000.  The basic sale price was to be paid in  instalments from 9th April, 1995 to 9th December, 1997.  It was also agreed that at the time of delivery of possession 5% of the basic price,  i.e.,  Rs.1,41,900/- was to be paid by the Complainants.

 

                   As per Clause 13, the Opposite Party had agreed  that the possession of the said premises, Phase-1,  was likely to be delivered  by the Company to the Apartment/Penthouse/Garden  Allottee within three and half years from the date of booking,  subject to force majeure circumstances and on receipt of all payments punctually as per agreed terms,   and also on receipt of complete payments of the  basic sale price  and other charges due and payable upto the date of possession.

 

 

                   As some extra construction was made, the Complainants were required to pay a higher  basic sale price at Rs.29,88,800.  Out of that, the Opposite Party received Rs.25,29,770/-.  That amount was paid by the Complainants before October, 1997.

 

                   It is also agreed that the Complainants were required to pay extra development charges amounting to Rs.4,140/-, electric connection charges of Rs.2,35,000/- as well as fire fighting charges  amounting to Rs.29,688/-, stamp duty and registration charges at Rs.6,000/-.

                   For the aforesaid facts, there is no dispute between the parties.

 

                        The question which requires consideration is  how much  compensation is to be awarded to the Complainants for the delay in construction and delivery of possession?

 

                   As stated above, possession of the premises was to be delivered within 3-1/2 years from the date of agreement,  on payment of the due instalments regularly.   It is not disputed  that the Complainants had paid the entire amount before October, 1997.  The agreement  between the parties  was executed  on 2nd March, 1995.  If the period of 3-1/2 years is  taken into consideration, then  the Opposite Party was required to deliver the possession on or before  10th October, 1998.

 

                   However,  the  Opposite Party was actually  required to be directed by this Commission to deliver the possession in December, 2007 and consequently, the possession of the apartment was delivered only on 20th December, 2007(as against 10th October, 1998).

 

                   The learned counsel  appearing on behalf of the Opposite  Party submitted that the   Opposite Party had written a letter to the Complainants  on 2nd August, 2003 and informed the Complainants that the Opposite Party   had immense pleasure  in forwarding the  formal letter as  “Offer of Possession”  and welcoming the Complainants to Celebrity Homes – an important Land Mark of Palam Vihar.   The Opposite  Party  produced on record   a copy of the said letter.

 

                   As against this, it is contended by the learned counsel for the Complainants that   the said letter was sent to a wrong address, because   before  the date of the  said letter the  Complainants had  shifted  and the letter was received back by the Opposite  Party.  The learned counsel further contended that knowing full well that the complaint was filed on 19th December, 2000, no such offer  of possession was made before this Commission,  in the present proceedings.  He submits that  this was a  fraud committed by the Opposite Party.    He, therefore, contended that the Opposite Party should be  directed to pay compensation and the  measurement of the compensation should be grant of  interest, if not @ 24% p.a. as prayed,  at least,   @ 17 % per annum as agreed by the Opposite Party  in its own letter dated 28th August, 1996 and the receipt dated 3rd September, 1996.

 

                   As against this, the learned counsel appearing  on behalf of the Opposite Party submitted that   in such cases, there  was  no question of awarding interest @ 24% or 17%  because the  Opposite Party   had already delivered the  possession of the flat and   the value of the said flat  had increased   due to the increase in the price of the property.

 

                   The learned counsel  for the  Complainants contended that the Opposite Party  was  charging interest @ 24% per annum, on delayed payments, and, therefore, it should be directed  to pay compensation at the said rate, and, in any case  @ 17% per annum.

 

                   In our view, the contention that  there is increase in the price of the property and,  therefore, compensation  for such inordinate  delay in delivery of possession should not be granted, is totally misconceived.    If the price  of an immovable  property  increases, it cannot be said that the parties are not required to abide by their contractual obligations.  In any case,  it is the luck of the Complainants that the price of the  property  has  increased and it cannot be said that it is for the benefit of the vendor.   The builder/vendor  of the property cannot claim advantage on account of increase in price after sale.    Hence, this contention is totally unreasonable and unjustified.  

 

                   Further, an Application dated 7.11.2006  was filed before this Commission,  stating therein that the Complainant, namely, Kunj Behari Mehta,  came to India on 29.9.2006 and visited the flat on 1.10.2006 and came to know  that the Opposite Party had  given possession of  adjoining flats, namely,  E-501 and E-503. He, therefore,  met the Manager at site who informed that his flat No.E-502 was ready for possession  for quite some time.   However, the Manager expressed his inability  to show the flat in question as the same was occupied by the contractor of the Opposite Party,  and,  at that  time,   the flat was locked.  Thereafter, the  complainant  No.1 went to the Head Office of  the  Opposite Party and contacted the Manager-Sales  and  requested  him to hand over the possession of the flat in question.  The Manager,  roughly  and curtly,  replied,  “Go to the Court and get its possession through the Court”.  These facts are not denied by the Opposite Party.

 

                   Considering the aforesaid facts, in our view, the Opposite  Party is required to pay compensation for  unjustifiably   not delivering the possession of the flat as per the agreement in October 1998 till December, 2007.

                  

                   In our view, the ends of  justice would be met if,  for this unjustified delay,   we direct the Opposite Party to pay interest @ 12%  per annum from 1st November, 1998 till 1st December, 2007 on the amount deposited by the Complainant upto 1st November, 1997  i.e. in all  on a sum of  Rs.25,29,770/-.

 

                   Further, for the high-handed and rough behaviour of the  Manager of the Opposite Party, the Opposite Party shall pay compensation of Rs.50,000/-.    This amount shall be  deposited  with this  Commission  by way of  bank draft drawn in the name of the Registrar of this Commission which shall be transferred  to the “Consumer Legal Aid Account” maintained by this Commission.

 

                   In the result, the complaint is partly allowed.  The Opposite Party is directed to pay interest @ 12% per  annum  from 1st November, 1998 till 1st December, 2007 on the amount deposited by the Complainant upto 1st November, 1997,  i.e.,  in all  on the  sum of  Rs.25,29,770/-.     It would be open  to the Complainants  to withdraw the amount of Rs.5,58,000/- deposited with this Commission and the Opposite Party after adjustment of the said amount of deposit,  shall pay the remaining amount on account of interest to the  complainants  within four weeks from today.  There shall be no order as to costs.

                                                                                               Sd/-

……………………………….J.

(M.B. SHAH)

PRESIDENT

 

 

                                                                              Sd/-

………………………………….

(ANUPAM DASGUPTA)

MEMBER