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Judgment
Sudip Ahluwalia, Member
RP/661/2020
This Revision Petition has been filed by the Petitioner/ Opposite Party against the Respondent/ Complainant challenging the impugned Order dated 07.01.2020 passed by the State Consumer Disputes Redressal Commission, U.P., Lucknow, in Appeal No.1349 of 2019. Vide such order, the State Commission partially allowed the Appeal at the stage of admission while amending the Order dated 30.09.2019 passed by the District Consumer Disputes Redressal Forum, Gautam Buddh Nagar, U.P., in Complaint Case No. 38/2017.
The brief facts of the case are that the Complainant and his wife, Mrs. Kavisha Garg had applied for a residential Flat for personal use with the Opposite Party. It was the case of the Complainant that he along with his wife had executed an Agreement with the Opposite Party on 04.09.2013 for a residential 3 BHK + Store Unit No. T-801 on the 8th Floor in Tower – T in Group Housing Project known as ‘Stellar Jeevan’ having a built up area 1446 sq. ft. @ Rs.3213/- per sq. ft with car parking, additional car parking, PLC, Power breaking, other charges with all easements, privileges, rights and benefits attached thereto along with proportionate undivided interest in common areas and exclusive right to occupy designated one covered car parking space. It was further averred that the Opposite Party had agreed to complete the residential Flat in a short span. However, no time for possession was fixed in the Agreement. It was further averred that an Allotment Letter was issued in this respect. It was further submitted that the basic cost of the flat was Rs.46,29,933/- (excluding additional car parking + One covered car parking lease rent (one time), EEC, FFC, IFMS, Power Backup, Legal and Administrative charges. Hence, the total cost was Rs.52,70,213/- excluding ST. It was also submitted that after payment of the first instalment of booking of Rs.4,62,993/-, the Complainant was assured that the Flat would be handed over in time. It was further averred that the neither the Completion Certificate nor the Builder Buyer Agreement were provided by the Opposite Party Builder to the Complainant. It was also averred that the Opposite Party had charged car parking charges twice from the Complainant whereas the car parking was to be handed over free of charge. It was further submitted that the Complainant contacted the Opposite Party on multiple occasions as there was delay in handing over of possession of the Flat. However, there was no positive reply from the side of the Opposite Party, and on one occasion the Opposite Party treated the Complainant very badly. It was further averred that the Complainant had paid the total cost of the Flat and in spite of this the Opposite Party had caused deliberate delay. It was submitted that such delay has caused monetary loss and harassment to the Complainant, forced him to live on rent @ 25,000/- p.m, impacted his health and hampered his credibility & reputation. It was further averred that the Complainant filed an RTI application before the Greater Noida Authority. However, no information was given by the Authority. It was further averred that the Occupation Certificate had not been obtained from the concerned Authority, and the Project was not complete till the date of filing the complaint. Hence, the Complaint was filed before the District Forum being aggrieved by the acts of the opposite Party and deficiency in their service with the following prayers:-
“(i) direct the Opposite Party to apologize for all the inconvenience caused to us;
(ii) direct the OP not to take the charges for car parking in extra and the delay in possession may kindly be charged @ 70,000/- PM because we are presently residing outside on rent @ 25,000/ per month. A delay of 10 months and further delay has been taken from the OP;
(iii) and you are also liable to pay Rs.50,000/- (Rupees Fifty thousand only) only being cost of this legal fee of the counsel;
(iv) direct to Ops to pay a sum of Rs.5,00,000/- towards the mental agony badly suffered by the complainants;
(v) you shall also be responsible for future legal fees and expenses if incurred in future litigation” .
The Opposite Party appeared before the District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended by the Opposite Party that the Complainant had applied for the Unit as an investment for the purpose of re-sale and earning profits therefrom, and that the Complainant is not a ‘consumer’ as defined under the Consumer Protection Act, 1986. It was further contended that the Complainant did not mention the facts correctly before the Ld. District Forum. It was further contended by the Opposite Party that no Agreement other than the Allotment Letter was executed between the parties. The Allotment Letter dated 04.09.2013 executed by the Opposite Party contained all the necessary terms and conditions of allotment, and it was duly signed by the Complainant after going through the same. It was further contended that para 24 of the Allotment Letter clearly provides for the time period for handing over of possession which is 30 months inclusive of grace period from the date of execution of Allotment Letter. It was further submitted that Completion Certificate is given only at possession of the Unit and no Builder Buyer Agreement was to be executed between the parties. It was further contended that two covered car parking space were purchased by Complainant and no car parking free of charge was committed by the Opposite Party. It was further the case of the Opposite Party that there was no deliberate delay in handing over the Unit to the Complainant and the possession was offered vide letter for Offer of Possession dated 05.11.2015 within the agreed time as mentioned in Allotment Letter. However, the Complainant did not turn up. It was further contended by the Opposite Party that there was no delay on their part and rather the Complainant wished to sell the Flat and earn premium on the investment made by him and hence, he did not take the possession of the Flat himself, and intentionally did so. It was also claimed that the Complainant did not disclose his age and nature of ill-effects which he allegedly had on his health. It was further submitted that the Complaint is bad for non-joinder of parties as the Complainant nowhere mentioned the name of the co-applicant. It was further contended that the Complainant was aware of the progress and construction work carrying on in the Unit and was regularly inspecting the same. Hence, the Opposite Party contended that the possession was offered to the Complainant in time, but the Complainant did not accept the same on one or the other pretext.
The Ld. District Forum vide its Order dated 30.09.2019 allowed the complaint of the Complainant and observed inter alia:-
“The Complaint of the complainant against the OP is accepted. The OP is ordered that within 30 days of this order, while handing over physical possession of the subject flat to the complainant, refund the additional money recovered from the complainant towards car parking. In addition to that the OP is ordered to pay to the complainant simple interest at the rate of 12% for the period of delay from date arriving after 30 months from the date of allotment letter till the date of actual possession of the flat, and pay Rs.25,000 per month towards of house rent from that date till the date of actual possession of the flat. Apart from this the complainant will also be entitled to get Rs.20,000 towards compensation for mental agony and physical pain, and also an amount of Rs.10,000 as complaint cost within the above mentioned period.”
Aggrieved by the above Order, Appeal bearing No. 1349 of 2019 was filed by Appellant/ Opposite Party against Respondent/ Complainant before the State Consumer Disputes Redressal Commission, U.P, Lucknow.
The Ld. State Commission vide impugned Order dated 07.01.2020 partially allowed the Appeal while amending the order of District Forum and observed that:
“The appeal is partially accepted at the stage of admission. Having amended the impugned order dated 30.09.2019 passed by District Forum, Gautam Buddh Nagar in Complaint No. 38/2017, the appellant is directed to handover physical possession of the said flat within 30 days of receipt of copy of this order. The appellant is also directed that the appellant pay to the complainant simple interest @12 percent per annum on the total amount deposited, for the period of delay from 04.04.2016 till the date of actual possession of the flat, within the period determined above. The appellant is also directed to make available open car parking facility to the complainant, and if any money is received towards open car parking, to refund that money within the period determined above. The order passed by the District Forum to the effect of payment of Rs.25,000 per month towards of house rent, is quashed. The appellant is also directed to pay Rs.20,000 towards compensation for physical and mental harassment, and Rs.10,000 as litigation cost.”
Hence, the present Revision Petition has been filed by the Petitioner/ Opposite Party against the above mentioned impugned order of the Ld. State Commission on the following grounds-
a. That the Hon’ble State Commission has failed in its findings to keep in view the agreement/ contract executed between the parties and tends travel beyond what has been originally agreed by the parties;
b. That the Respondent did not want to take possession and deliberately avoided to take possession and as such Petitioner cannot be held liable for the wrongful actions of the Respondent. After completing construction in the project and after applying for Completion Certificate, the offer of possession dated 05.11.2015 was made. However, the Respondent failed to complete the procedural formalities and take possession. The Respondent, even after receipt of Occupancy Certificate on 27.02.2019 for full project and notice dated 28.02.2019 issued by the Petitioner, had not taken possession. Despite reminders, the Respondent has failed to take possession of the Unit;
c. That the Greater Noida Authority issued Completion Certificate to the petitioner in parts; First TOC dated 07.03.2016 was issued for 09 towers, Second TOC dated 13.06.2016 was issued for 05 towers and CSC Block and Final OC dated 27.02.2019 was issued for complete project. The construction of remaining towers was fully complete by February, 2015 and till grant of final OC there was no change made in the structure. The delay in obtaining OC was completely on the part of GNIDA for not fault of Petitioner. The Petitioner had applied for OC as soon as the construction was complete i.e., on 25.02.2015;
d. That clause 27 of the Application form dated 11.08.2013 and clause 24 of Allotment Letter dated 04.09.2013 state that no claim by way of damages shall lie against the Petitioner in case of delay on account any government action/ inaction or on account of reasons beyond the control of the Petitioner;
e. That the State Commission failed to appreciate that the Respondent deliberately did not mention the name of the second allottee of the flat;
f. That the Petitioner had not promised for any open car parking facility to the Respondent for free, nor it is anywhere mentioned in the application form. The Respondent paid only for covered car parking as per the agreement between the parties. The petitioner has not taken any money from the Respondent for “Open Car Parking” and hence the petitioner is not liable to refund any amount to the Respondent;
g. That the neighbours of Respondent residing in Flat No. T-701 and T-901 took possession vide possession letter dated 16.08.2015 and 19.07.2016 and have been residing in their respective apartments since then.
Vide order dated 08.12.2020, this Commission directed the Petitioner to hand over the physical possession of the subject property and open car parking space in terms of the impugned order and execute the conveyance deed within three weeks, and further granted stay on the execution of the impugned order subject to compliance of the directions by the parties. Further, vide order dated 22.03.2021, this Commission noted the submission of the Petitioner that the Respondent had committed contempt since he pressed the execution of the impugned order before the District Forum on 15.12.2020. Further, vide order dated 16.08.2021, this Commission noted that possession of the subject flat has been taken by the Complainant.
Heard Ld. Counsel for the Petitioner and Respondent in person. Perused the material available on record.
As already seen, the decisions of both the Ld. Fora below are substantially concurrent, and the main relief of direction to hand over physical possession of the Flat in question apart from delay compensation @ 12% till the date of actual possession for the Flat have both gone in favour of the Complainant. It has been emphasized on behalf of the Petitioner/Opposite Party that actually there was no delay in making offer of possession of the Flat and that construction of the Flats covered under the concerned Project had actually been completed within the stipulated time, and that the Opposite Party had even applied for grant of Occupation Certificate which, however, could not be obtained due to delay on the part of the concerned Authorities for which the Opposite Party was in no way responsible. To substantiate this submission, Ld. Counsel for the Petitioner has submitted that admittedly according to the Agreement between the parties executed on 4.9.2013, the time stipulated for delivery of Flat was of a period of 02 years with a grace period of 06 months thereafter, on account of which the Flat ought to have been delivered by the 4th September, 2015, or after including the grace period latest by 4.3.2016. But long before either of these two dates, the Opposite Party had already applied for grant of Occupation Certificate as far back as on 25.2.2015 after having completed the construction from its side. The Petitioner’s application for Occupation Certificate dated 25.2.2015 in this regard is on page 151 of the main Paper Book. The Occupation Certificate for the first nine towers in the Project was granted by the Competent Authority on 17.3.2016 (Pages 153 to 156 of the Paper Book), and the Occupation Certificate for the next five towers was subsequently issued on 13.6.2016 (Pages 158 to 163). However, the letter of 13.6.2016 did not cover the Complainant’s Block i.e. Block ‘T’, and the Occupation Certificate in this regard was withheld ostensibly on the issue of non-adherence to the minimum distance requirements from the adjoining Block. The Petitioner duly replied to such letter of the Competent Authority on the very next date i.e. 14.6.2016, which reply is on record at Page 167 and thereafter issued reminders from its side on 12.7.2016 and 18.11.2016 and its Chairman/Managing Director even wrote to the Principal Secretary, Infrastructure and Industrial Development, Department of the Government of Uttar Pradesh on 18.11.2016. However, when no response from the Authorities was forthcoming, the Petitioner on 18.2.2020 put in an application under the RTI Act to know the status of its correspondences and the Occupation Certificate. The Authority on 18.2.2020 replied to the Petitioner’s RTI application in which a copy of the 107th Board Meeting of the Greater Noida Industrial Development Authority (GNIDA), held on 24.12.2016, was annexed, and it transpires therefrom that after making necessary amendments about the distance between buildings in accordance with the NBCC, the proposal would be sent to the Government.
The follow-up in this matter appears to have been thereafter taken up by the Chief Executive Officer of the GNIDA in his letter dated 7.4.2017 followed by a reminder on 1.9.2017. Only thereafter the Government of U.P. issued its relevant notification on 5.2.2018 which was published in the Gazette Extraordinary of U.P. on that date. Consequently, the Petitioner at its own level then followed up with request for issuance of Occupation Certificate/Completion Certificate on 4.5.2018 followed by a reminder on 20.12.2018 which were thereafter again followed by the letters issued by its Chief Executive Officer on 22.12.2018 and 31.12.2018, but again no response was forthcoming. The Petitioner issued its next reminder on 21.1.2019 after which the Occupation Certificate (Annexure-P18) was finally granted by the Authority on 27.2.2019. The Petitioner thereafter intimated all the allottees by E–mail dated 28.2.2019 (Annexure-P19) and lastly issued the letter offering possession (Annexure-P29) on 2.11.2019, in response to which the Complainant submitted his Declaration-cum-Undertaking on 5.11.2019, which was at a stage when the Complaint had already been decided by the District Forum in his favour on 30.9.2019.
All the above facts would go to show that there was no intentional delay on the part of the Petitioner/Opposite Party in delivering possession of the disputed Flat to the Complainant, but it could not do so since the Occupation Certificate specifically for the Complainant’s Block, was not issued by the Competent Authority for a very long time, and for which the Petitioner was in any way at fault, since ultimately it was found that there was no violation of the minimum distance requirement between two adjacent Blocks, on the ground of which the Occupation Certificate for the Complainant’s Block had remained withheld for a very long time. However, instead of apprising the Complainant about all these facts, the Petitioner/Opposite Party from its side had offered delivery of possession to the complainant without the Occupancy Certificate, which certainly would not have been acceptable to the Complainant. The entire history of delay on the part of the Competent Authority (GNIDA or Government of U.P.) which had led to delay in issuance of the Occupation Certificate in favour of the Petitioner in time, was surprisingly not disclosed by the Petitioner in either of the Ld. Fora below but the entire official correspondence in this regard has now been brought to the notice of this Commission.
In such circumstances, this Commission is of the view that while the delay compensation @ 12% for the entire period of delay as ordered by both the Ld. Fora below would appear to be somewhat excessive and exorbitant in the given circumstances, still the Petitioner/Opposite Party needs to be penalised for not having brought the relevant facts to the notice of the Complainant, or even before the lower Fora and having gone about the matter in a casual and callous manner. During the course of hearing it has transpired that possession of the Flat in question has already been delivered by the Petitioner/Opposite Party on 21.12.2020, and the Registered Deed of Conveyance in this regard has also been executed in compliance of an earlier order passed by this Commission on 8.12.2020 and that the open parking space has also been provided to the Complainant by the Petitioner without any additional charges. Consequently, it is held that the Petitioner would be liable to pay appropriate compensation to the Complainant now which would, however, necessarily have to be different from a full-fledged compensation for delayed possession. This is so, because it has already been seen that such delay was not on account of any fault on the part of the Petitioner itself, but due to prolonged delays from the side of statutory Authorities and the Government of U.P. Nevertheless, the Petitioner did not intimate these facts to the Complainant or/and acted in an even more callous manner in defending the Complaint in the lower Fora by not even mentioning these facts in time. So, it is certainly liable to pay penal compensation to the Complainant for this reason.
The Revision Petition is, thus, allowed by modifying the Order of the Ld. State Commission to the extent that instead of delay compensation @ 12% p.a. as awarded by both the Ld Fora below, the Petitioner/Opposite Party is liable to pay composite compensation which would include compensation towards delay, mental harassment and litigation expenses, which are now assessed at Rs. 2,00,000/- (Rupees Two Lakhs only) in all, and which shall be payable from the date of passing of the original final Order dated 30.9.2019 of the District Forum, after which an interest @ 6% p.a. shall be payable to the Complainant till the date of actual payment. Such payment is to be made over to the Complainant within 03 months from the date of this Order, and in default the rate of interest, thereafter, shall be enhanced to 8% p.a. till realisation of all outstanding dues.
No other order as to costs.
E.A./140/2021
This application was filed by the Petitioner alleging wilful disobedience and violation of Order dated 08.12.2020 of this Commission on part of the Respondent in the Revision Petition. The brief contentions of the Petitioner are that the Respondent herein had initiated execution proceedings bearing no. EA/63/2019 with regard to the Order dated 30.09.2019, on 01.11.2019 before the Ld. District Forum and vide order dated 08.12.2020, this Commission had granted three weeks’ time to execute the conveyance deed and had also stayed the execution of the impugned order subject to compliance of directions. It is claimed that in view of order dated 08.12.2020, the Petitioner wrote to the Respondent on 12.12.2020 and again on 15.12.2020 to complete the process of registration of sub-lease deed. It is further submitted that the execution proceedings were listed for hearing before the Ld. District Forum on 15.12.2020 and the Respondent failed to apprise the forum of the stay order dated 08.12.2020 and rather persuaded the Ld. Forum to pass a separate recovery order dated 15.12.2020. It is further submitted that there is over-writing in the Court file of the District Commission and the next date of hearing had been changed from ’09.01.2021’ to ’19.01.2021’ whereas the online status of hearing shows the next date as ’09.01.2021’. Likewise in the letter dated 23.12.2020, there is an overwriting on the date from ’09.01.2021’ to ’09.02.2021’, all linking to certain manipulations at the behest of Respondent. It is further submitted that on 21.12.2020, the Petitioner executed a transfer deed of the flat in question and got the same registered on 23.12.2020 in compliance of the Order dated 08.12.2020. It is further stated that simultaneously on 23.12.2020, directions were given by the Ld. District Forum for recovery to the District Magistrate, Gautam Budh Nagar. It is further claimed that on 31.12.2020, the Petitioner handed over the possession of the flat to the Respondent vide Possession Letter dated 31.12.2020. It is also submitted that the Petitioner filed an application dated 01.01.2021 in the Execution Application before the Ld. District Forum for placing on record the above stated documents, but the Recovery Certificate was issued on 05.02.2021 in favour of the Respondent. Hence, contempt proceedings were initiated by the Petitioner against the Respondent.
The Contempt Application has been resisted by the respondent by filing his reply. It has been contended by the Respondent that the Petitioner was granted 3 weeks’ time from the date of the Order to execute the conveyance deed and deliver possession, which ended on 29.12.2020 although the possession was actually given by the Petitioner after the time had lapsed. It is also contended that the Petitioner had obtained the certified copy of the order dated 08.12.2020 of this Commission on 14.12.2020 and the same was placed before the executing court on 01.01.2021. The petitioner was aware that the execution proceedings were at an advanced stage and the next date of hearing were 11.12.2020 followed by 15.12.2020 and the Petitioner did not file the copy of order dated 08.12.2020 and because the executing court orders were also pending since 26.10.2020. It further stated that the execution application was filed on 01.11.2019 and the Petitioner was served the notice and had appeared on multiple hearings. It is further stated that after the Order dated 08.12.2020, the Respondent did not appear in the executing court hearings dated 11.12.2020 and 15.12.2020 and other subsequent dates and the Respondent had not pressed the execution on 15.12.2020. It is further claimed that the Recovery Order dated 15.12.2020 were passed by the Ld. District forum in the absence of the Respondent. Hence, the Respondent prayed for rejection of the Contempt Application.
As already noted in the Revision Petition No. 661 of 2020, possession of the Flat in question has already been made over to the Decree Holder by the Judgment Debtor on 21.12.2021, and all other facilities ordered to be provided to him have also been since delivered. Consequently, nothing further survives in this Execution Application which is, therefore, disposed of as having been rendered infructuous.
Parties to bear their own costs.
Pending application(s), if any, also stand disposed off.