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Judgment
V.K. Jain, J
The complainant / appellant booked a 3-BHK flat with the opposite party on 4.9.2008, paying an initial amount of Rs.3,20,000/-. Vide letter dated 2.2.2010, flat No. H/S1 on the first floor of the project namely Earthcon IT Residency was allotted to the complainant / appellant on the terms and condition which are available on pages 22 and 23 of the paper book. As per Clause 10 of the said document, the sale deed was to be executed within a reasonable time after the flat had been finally demarcated at the site and after receipt of the full sale consideration and other charges. It is an admitted case of the parties that the sale deed of another flat bearing No.H/1 on the third floor of the said building was executed in favour of the complainant on 28.12.2012. It was recorded in the sale deed that the property had been sold for a total consideration of Rs.30,58,000/- and the vendor had received the said amount from the vendee in full and final payment of the sale consideration in the manner noted in the sale deed. It was also recorded in Clause 3 of the sale deed that there was no balance due towards the vendee to be paid to the vendor in respect of the said property. It was also recorded in Clause 5 of the sale deed that the vendor had handed over the vacant, actual physical and peaceful possession of the property to the vendee on the spot. The said flat as noted earlier was situated on the third floor of the building and it was so noted in the sale deed also.
The case of the complainant is that the respondent had recorded the delivery of possession in Clause 5 of the sale deed, without actually delivering the possession of the allotted flat to her. The complainant therefore, sent a legal notice dated 28.11.2016 to the respondent through her counsel, alleging therein that though eight years had passed the flat was neither complete nor handed over to the complainant.
No reply to the legal notice was sent by the respondent. The complainant thereafter, approached the concerned State Commission by way of a consumer complaint seeking (i) installation of lift (ii) completing of the building and handing over possession to her, alongwith damages quantified at Rs.5,00,000/-.
The State Commission vide impugned order dated 17.10.2017 dismissed the complaint without notice to the respondent solely on the ground that as per Clause 5 of the sale deed, the possession had been delivered to the complainant. Being aggrieved the complainant is before this Commission by way of this appeal.
The learned counsel for the appellant / complainant has drawn my attention to a letter dated 06.2.2018 sent by the respondent to the complainant/appellant. The said letter to the extent it is relevant reads as under:
"To,
Ms. Shashi Purohit,
Jameela House, Haidarkhan Road,
Chilianaula, Ranikhet - 263 647
Uttarakhand
Subject : Reminder-2 for final call for taking over of the flat No. H/T-1 at Earthcon IT Reisdency Village Bhangel, adjacent sector-106, Noida.
Dear Ms. Shashi Purohit,
This is in regard to our previous communication / letter to you regarding the possession of your flat No. H/T-1 at Earthcon IT Residency Village Bhangel, adjacent sector-106, Noida.
Letter - offer of possession dated 4.5.2015
Letter - Final Reminder letter dated 15.10.2015
In the above mentioned letters we have requested you to make following payment towards the sale consideration of your aforesaid Unit and have offered you to take physical possession of the said flat after execution and registration of sale deed in your favour. However, even after considerable time has elapsed, you have not come forward to take over the possession of your flat.
In view of the above said facts we would like to again mention that your flat is ready in all respect and hence forth, we once again request you to make following outstanding payments and instigate the process of execution and registration of sale deed in your favour to take over the physical possession of the aforesaid flat."
The said letter clearly indicates that the possession of the allotted flat was not actually delivered to the complainant / appellant and it was incorrectly recorded in para-5 of the sale deed that the possession had been delivered to her.
Moreover, this is also the case of the complainant / appellant that the flat, subject matter of the sale deed being situated on the third floor, lift was required to be installed by the respondent / opposite party. She has drawn my attention to the Brochure issued by the respondent, where one of the features of the project highlighted by the respondent is elevators. Even otherwise in a multistoried building, elevators would be an essential amenity without which the flat buyers cannot enjoy the allotted flat efficiently and without great inconvenience to him / her.
For the reasons stated hereinabove the impugned order dismissing the complaint in limine, cannot be sustained and the same is accordingly set aside. The complaint filed by the appellant / complainant is remitted back to the concerned State Commission to decide the same on merit after considering the written version to be filed by the respondent, and the evidence, which the parties may produce in support of their respective case. The respondent is granted thirty days from today to file its written version to the consumer complaint.
The parties shall appear before the concerned State Commission on 17.7.2019. The State Commission is directed to decide the complaint afresh within six months of the parties appearing before it.
It is made clear that the consumer complaint shall be decided by the State Commission without in any manner being influenced by the observations made in this order.