NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW
DELHI
FIRST
APPEAL NO. 472 OF 2007
(From the orders dated 10.04.2007 in Complaint
No.37/2000 of the Delhi State Consumer Disputes Redressal Commission)
B.S. Walia
R/o 338, Kailash Tower-I
East of Kailash
New Delhi-110065 … Appellant
Versus
M/s DLF Universal Limited
DLF Centre
Sansad Marg
New Delhi-110001 … Respondent
BEFORE :
HON’BLE MR. JUSTICE
D.K. JAIN, PRESIDENT
HON’BLE MRS.
VINEETA RAI, MEMBER
For the Appellant : Mr. B.S. Walia, Appellant in person
For the Respondent :
Mr. R. Narain, Advocate with
Ms. Kanika, Advocate &
Mr. Siddharth Banthia, Advocate
Pronounced : 27th
November, 2013
O R D E
R
PER VINEETA RAI
First Appeal No. 472 of 2007 has been
filed by Shri B.S. Walia, Appellant herein and Original Complainant before the
Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as
the State Commission) being aggrieved by the order of that Commission which
while concluding that there was a breach of Agreement by M/s DLF Universal
Limited, Respondent herein and Opposite Party before the State Commission, had
awarded a compensation of only Rs.50,000/- which was far less than what was
sought by the Appellant and warranted in the case.
2. The facts as contended by the Appellant are
that in June, 1993 he had booked a flat in Beverly Park (II) in DLF Qutub
Enclave, Gurgaon with the Respondent after being assured that this flat was
immediately below the penthouse.
Appellant thereafter made the entire payment of Rs.24,55,182/- as per
the prescribed schedule in the Agreement, including miscellaneous charges. However, he was “wonderstruck” when he was
informed on 24.09.1997 that the Respondent had suo motu and arbitrarily changed
the allotment of this flat to one storey below the agreed floor as a result of
which it was not immediately below the penthouse as applied for by the
Appellant and confirmed by the Respondent.
This clearly amounted to unfair trade practice. Further, as per Agreement the Respondent was
to deliver the flat after three years but instead of handing over the completed
flat by the stipulated period, Respondent demanded escalation costs of
Rs.4,29,595/-, which the Appellant had no option but to pay under duress
whereas Respondent should have paid interest on the amount of over
Rs.24,00,000/- already deposited by the Appellant for the delayed period. Respondent was, therefore, guilty of
deficiency in service on this count and liable for payment of interest @ 16.5%
on this amount for the delayed period in handing over possession of the flat
amounting to Rs.10,78,080/- since the flat was handed over only on
18.06.1999. Being aggrieved by the
unfair trade practice and deficiency in service on the part of Respondent,
Appellant filed a complaint before the State Commission seeking (i) damages of
Rs.5,00,000/-; (ii) interest for the delay in handing over possession from
July, 1996 to February, 1999 amounting to Rs.9,09,600/-; and (iii) compensation
of Rs.2,00,000/- towards mental agony and harassment.
3. Respondent on being served filed a written
rejoinder denying the allegations made by the Appellant and inter alia
contented that the allegation of unfair trade practice in not allotting the
flat as per the requirements of the Appellant is not borne out by the
documentary evidence on record.
Appellant himself had written a letter on 23.06.1993 to the Respondent
stating that a flat be reserved for him on the 10th floor or if it
is possible on the 11th or 12th floor. Subsequently in his formal application for
allotment, he again specifically indicated that the flat No.1410-A on the 10th
floor was acceptable to him and it was also confirmed in the Apartment Buyer’s
Agreement signed between the parties.
There was never any request written or otherwise by the Appellant that
he should be allotted a flat just below the penthouse. In fact Respondent vide
letters dated 26.06.1993, 24.09.1997, 19.12.1997, 10.07.1997, 09.09.1997 and
04.08.1999 had clearly communicated to the Appellant that flat no. 1410-A had
two floors above it, including the penthouse on the top floor. Regarding the allegation of the Appellant
that he was not liable to pay escalation costs because of the delay in handing
over possession of the flat, for which Respondent solely was to blame, it was
clearly stated in the Apartment Buyer’s Agreement that delay could be possible
on account of various factors beyond the control of the Respondent and in the
instant case the delay in handing over possession occurred because of time taken
in getting necessary government clearances.
The escalation charges demanded by the Respondent were thus strictly in
accordance with the terms of the Agreement and in fact no promise about any
particular date for handing over the flat was made. Appellant took possession
of flat no. 1410-A on 18.06.1999 and also sold the same. Having done so, as per clause 20 of the
Agreement, he had no claim against the Respondent for any reason whatsoever
and, therefore, the present complaint filed by him was no longer
maintainable.
4. The State Commission after hearing the
parties and on the basis of evidence produced before it observed as follows :
“8. After
hearing the counsel for the parties and according careful consideration to the
documents on record as well as the version of the O.P. reproduced from the
written submission of the O.P., we find that the O.P. had vide letter dated
10-07-1993 admitted the allotment of a floor which was required by the
complainant, i.e. immediately below the penthouse. However, the O.P. is harping
on the number of flat without realizing that it had already agreed to allot a
flat below the penthouse to the complainant. Confusion is being created by the
O.P. regarding the number of the flat. Thus, if the complainant has suffered any
loss, it was on account of non-allotment of flat immediately below the
penthouse but subsequently he was allotted the flat and it was sold also. …
11. Taking over all view of the matter and the
breach of agreement by O.P., we deem that a lump sum compensation of Rs.
50,000/- would meet the ends of justice.”
Hence, the present appeal.
5. Appellant in person and Counsel for the
Respondent made oral submissions.
6. Appellant vehemently argued that the State
Commission erred in granting him a token compensation after having concluded
that there was a clear breach of the Agreement.
Appellant brought to our attention a letter dated 05.08.1999 in which
Respondent had admitted that there appeared to be some misunderstanding
vis-à-vis numbering of the flats as communicated to the Appellant vide
Respondent’s letter dated 10.07.1993 indicating that there was no intervening
floor between the flat allotted to Appellant and the penthouse. Appellant contended that he had opted for
flat no. 1410-A on the clear understanding that there was only the penthouse
above his flat. He had clarified the
same in writing to the Respondent on 16.07.1997 and also alleged that it
appeared that the building plans were arbitrarily changed and one more floor
was constructed between his flat and the penthouse. Since Appellant was working abroad he was not
in a position to meet the Respondent frequently as a result of which he was
misled and the sale of the flat was foisted on him. Appellant wanted to buy the flat for his
personal use and he had no option but to sell it because it was not as per his
requirement. Appellant, therefore,
requested that the order of the State Commission be modified and he be given
the compensation and relief sought by him before the State Commission.
7. Counsel for Respondent denied the above
allegations and stated that even Rs.50,000/- given to the Appellant by the
State Commission as compensation was not based on the merits of the case but
Respondent paid this amount to avoid unnecessary litigation. More importantly Appellant had accepted the
decree of the State Commission without any reservations and, therefore, the
present appeal for enhancement of compensation is untenable. It was reiterated that the Appellant without
any reservation had taken possession of the flat in question on 18.06.1999 and
having done so as per the Apartment Buyer’s Agreement he had no claim against
the Respondent for any reason whatsoever.
On merits, it was contended that Appellant after booking the flat had
never indicated that he wanted only a flat on a floor just below the
penthouse. In this connection, Counsel
for the Respondent brought to our notice the letter dated 23.06.1993 from the
Appellant to the Respondent requesting that “you reserve a flat for me in your
building Windsor on the 10th floor or if it is possible on the 11th
or 12th floor”. From this
letter it is very clear that Appellant had made a specific request for
allotment on the 10th floor and reference to the higher floors was
made only as an alternative. Regarding
the allegation that there was delay in handing over possession of the flat and
also that the escalation charges were unwarranted, Counsel for the Respondent
reiterated that these were covered under various provisions in the Apartment
Buyer’s Agreement entered into between the parties and, thus, binding on the
Appellant. In view of these facts, the
present appeal having no merit deserves to be dismissed.
8. We have carefully considered the
submissions made by the parties and have also gone through the evidence on
record. Appellant having booked a flat
in Beverly Park (II) in DLF Qutub Enclave, Gurgaon with the Respondent is not
in dispute. It is also a fact that
Appellant had signed the Apartment Buyer’s Agreement accepting allotment of
flat no. 1410-A on the 10th floor and had consequently paid for the
cost of the flat. The main point in
dispute leading to filing of the present consumer complaint is that the
Respondent had misled the Appellant that the flat allotted to him was just one
floor below the penthouse whereas the Appellant after having accepted the flat
and signed the Apartment Buyer’s Agreement came to know only on 24.09.1997 that
the Respondent had suo motu and arbitrarily built two floors above the flat
allotted to him, as a result of which it was not immediately below the
penthouse, as applied for by the Appellant.
Apart from this, Appellant has challenged the delay in handing over the
flat and the consequent escalation charges as not being warranted.
After going through the evidence on
record, we are unable to accept the above contentions of the Appellant. In this connection, we note that vide letter
dated 23.06.1993 written by Appellant to Respondent following discussions in
the latter’s office, Appellant had requested that he be reserved a flat on the
10th floor or if it is possible on the 11th or 12
floors. From this letter, it is obvious
that the Appellant was fully aware before having entered into the Apartment
Buyer’s Agreement that there were two floors above the 10th floor
i.e. the 11th and 12th floors. Subsequently, in the application for
allotment Appellant himself had specifically sought allotment on the 10th
floor with no condition that it should be just below the penthouse. Some confusion regarding whether the flat was
located on the 10th floor or the 11th floor may have
arisen, as observed by the State Commission, because of a letter from the
Respondent dated 10.07.1993, in which Respondent had stated that the building
has ground floor + 10 floors and, therefore, flat no. 1410-A is actually on the
11th floor but this error was subsequently clarified in various
letters written by Respondent to Appellant.
Also in the Apartment Buyer’s Agreement entered into between the parties
on 05.01.1994 it was clearly stated that
flat no. 1410-A was on the 10th floor. Further, as stated earlier, there is no
evidence written or otherwise that the Appellant had insisted at the time of
his purchasing the flat that only a flat below the penthouse would be
acceptable to him. It was only in 1997
when the construction was almost completed that this issue was raised. Appellant thereafter took possession of the
flat without any protest in 1999 and also sold the same, which lends further
credence to the Respondent’s contention that Appellant had no initial objection
to the location of the flat on the 10th floor irrespective of
whether it was one or two floors below the penthouse and this objection was
only voiced in 1997 i.e. three years after he had signed the Apartment Buyer’s
Agreement.
Regarding the delay in handing over the
possession of the flat and consequent escalation charges levied by the
Respondent and objected to by the Appellant, we note that there are provisions
pertaining to these possibilities under clauses 15, 16 and 17 of the Apartment
Buyer’s Agreement entered into between the parties and, therefore, we do not
find the Respondent guilty of any deficiency in service on this count as well.
9. Keeping in view the above facts, we are
unable to accept the present appeal and dismiss the same with no order as to
costs.
Sd/-
(D.K.
JAIN, J.)
PRESIDENT
Sd/-
(VINEETA RAI)
MEMBER
Mukesh
