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Judgment
Subhash Chandra, Presiding Member
This Appeal has been filed by the Appellants against the impugned order dated 09.07.2019 of the State Consumer Disputes Redressal Commission, Punjab Chandigarh (for short “the State Commission”) in Complaint No.1003 of 2018 filed by the Respondent No.1 herein (hereinafter referred to as “the Complainant”). The Appeal has been filed with the following prayers:
a. Call for the record of the complaint case No.01003 of 2018 from Ld. State Consumer Disputes Redressal Commission, Punjab, Chandigarh;
b. Set aside the order dated 09.07.2019 passed by the Ld. State Consumer Disputes Redressal Commission, Punjab, Chandigarh in complaint case No.1003 of 2018;
c. Pass any such or further order as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case and in the interest of justice.
The State Commission had allowed the Complaint No.1003 of 2018 and passed the following directions:
In view of my above discussion, the complaint is allowed against opposite parties No.1 & 2 and the same is dismissed against opposite party No.3. Following directions are issued to opposite parties No.1 & 2:
i) to hand over possession of flat No.131-C (1 BHK) to the complainant. If they will not be in a position to hand over possession of the same, then they will deliver possession of alternative flat of the same size and specifications to the entire satisfaction of the complainant. The same would be complete in all respects, without any encumbrances. It is made clear that opposite parties No.1 & 2 would get executed the fresh Sale Deed of the newly flat to be allotted or of flat No.131-C at their own expenses, including stamp duty, registration fee and other expenses. However, the complainant would get cancelled the Sale Deed, Ex.C-3, which would be done at the expenses of opposite parties No.1 & 2. The complainant will cooperate with the opposite parties in completing the required formalities for the purpose of cancellation of the said Sale Deed. This would be subject to the handing over possession of the newly allotted flat i.e. No.131-C or alternative flat. This would be done in view of the terms of Undertaking, Ex.C-7, executed by opposite parties No.1 & 2;
ii) to pay interest and penalty on the loan amount obtained by the complainant at the rate of 12% per annum from the stipulated date for delivery of possession of flat No.131-C i.e. 04.08.2016 till delivery of possession of new flat, as ordered above;
iii) to pay ₹2,00,000/- as compensation and punitive damages for the mental tension and harassment suffered by the complainant, being a member of the poor status of the society, as well as for the deficiency in service and unfair trade practice adopted by opposite parties No.1 & 2 towards poor strata of the Society, as per Section 14 (1) (d) of the Act; and
iv) to pay ₹22,000/- towards litigation expenses.
The needful, as directed above, would be done within 60 days from the receipt of certified copy of the order.
If opposite parties No.1 & 2 failed to comply with the directions, as stated above, then they shall:
i) refund the entire amount paid by the complainant as sale consideration i.e. ₹12,30,000/- plus ₹38,007 paid as Service Tax, vide receipt Ex.C-5, along with interest at the rate of 12% per annum from the respective dates of deposit till realization, as per Rule 17 of PAPRA. They shall also refund the Sale Deed expenses incurred by the complainant of flat No.7-C, along with interest at the rate of 12% per annum from the date of execution of the Sale Deed, Ex.C-3, i.e. 16.01.2013 till realization thereof;
ii) to pay ₹2,00,000/- as compensation and punitive damages for the mental tension and harassment suffered by the complainant, being a member of the poor status of the society, as well as for the deficiency in service and unfair trade practice adopted by opposite parties No.1 & 2 towards poor strata of the Society, as per Section 14.1 (d) of the Act;
iii) to pay ₹22,000/- towards litigation expenses.
The facts in brief are that the Complainant had booked a flat No.131-C (1 BHK) in the project of the Appellant in “Darpan City Garden Colony”, Kharar, SAS Nagar, Mohali. Flat No.7-C, 2nd Floor, measuring 650 sq. ft. (super area) was allotted to her for a sale consideration of ₹12,30,000/- as per the Agreement to Sell dated 16.07.2012. Possession of the flat was taken despite the existence of a high tension wire passing over the flat. In view of problems on account of voltage fluctuations on this account, in June 2014, the Appellant agreed to allot alternative flat No.131-C, execute and Exchange Deed as well as to shift the electricity wires and take care of the bank formalities. Vide undertaking dated 27.06.2014, the re-allotted flat was, however, not handed over and the 200 KV electricity line was not shifted.
The State Commission, on contest, had passed the impugned order after taking into consideration the evidence led by the parties including the Sale Deed and the Possession Letter with regard to the flat No.7-C and the Undertaking dated 27.06.2014.
We have heard the learned Counsel for the parties and perused the record. Respondent No.2 was proceeded ex parte since none was appearing for them.
It is argued on behalf of the Appellant that the possession had been taken by the Complainant and a Sale Deed had been executed in their favour. It is contended that the present grievance pertains to issues arising post taking over of possession and do not constitute a Complaint under the Consumer Protection Act, 1986. The Complainant had been offered another flat within six months by them. However, before expiry of this period the Complaint had been filed before the State Commission which was allowed and has necessitated this Appeal. It is argued that in view of the offer of the Appellant to re-allot another flat, the order of refund by the State Commission was not warranted and that the other compensations awarded were also not justified.
It was argued on behalf of the Complainant that there was deficiency in service on the part of the Appellant in allotting the original flat which had a high tension electricity line passing over head and that the re-allotment of another flat (131-C) was an admission of this deficiency on their part. Since the same had not been done, the Complainant had approached the State Commission which had rightly ordered the allotment and handing over of possession with the require Sale Deed in respect of the alternative flat. The refund and the compensation were ordered in the alternative. The contention of the Appellant that the Complainant had enjoyed the property for several years was unwarranted since the existence of 220 kv high tension wire over head was a deficiency that was attributable to the Appellant and had not been set right.
It is manifest from the foregoing that flat no.7-C allotted to the Complainant, admittedly, had a high tension wire passing over head which was the cause of loss to the Complainant due to fluctuations in power supply resulting in the damage to certain electrical equipments in the flat which has not been denied by the Appellant. It is also admitted that the alternative flat (131-C) had been promised to be handed over within six months. It is also evident that no offer of possession in respect of this alternative flat has so far been made by the Appellant to the Complainant. As per the agreement executed between the parties dated 27.06.2014, the same had to be done and a Sale Deed executed within six months. The Appellant cannot contend that the handing over of possession of flat No.7-C, which it admits to suffer from deficiencies, to be a post possession issue. In any case it had undertaken to rectify the deficiency which it has failed to do by handing over an alternative flat and execute the necessary legal documents. The order of the State Commission awarding refund with various compensations is in the alternative of not handing over of alternative flat. The award of refund with compensation can, therefore, not be held to be unjustified. However, this component of the order of the State Commission needs to be modified in light of DLF Homes Panchkula Limited vs. D. S. Dhanda etc., Civil Appeal No.4910-4941 of 2019, decided on 10.05.2019 wherein it was held by the Hon’ble Supreme Court that awarding multiple compensations for a singular deficiency in service is not justified.
In view of the foregoing, this Appeal is disposed of with the following directions;
(i) Order of the State Commission directing handing over of possession of the alternative flat complete in all respects and without encumbrances at the expense of the Opposite Parties No.1 and 2 in terms of the agreement dated 27.06.2014 is upheld.
(ii) Interest and penalty on the loan amount obtained by the Complainant shall be @ 9% p.a. from the stipulated date of delivery of flat No.131-C (04.08.2016) till the date of delivery of possession.
(iii) Litigation costs of ₹25,000/- be paid by the Appellant to the Complainant.
In the eventuality of these directions not being complied with within three months, the Appellant shall refund the amount of ₹12,30,000/- along with interest @ 12% p.a. from the respective dates of deposit till realization within a period of 45 days thereafter along with litigation costs of ₹50,000/- within one month.
Pending IAs, if any, stand disposed of with this order.