w w w . L a w y e r S e r v i c e s . i n

Akhil Bhartiya Upbhokta Congress & Others v/s B.S. Sharma & Other

Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

    Revision Petition No. 2502 & 2503 of 2015 in Appeal No. 255 & 347 of 2012

    Decided On, 01 March 2016

    At, National Consumer Disputes Redressal Commission NCDRC

    By, MEMBER

    For the Petitioner: Nitin Pandit, Advocate. For the Respondents: Akhil Bhartiya Upbhokta Congress & all complainants, Ritesh Khare, Advocates.

Judgment Text

J.M. Malik, Presiding Member

1. Counsel for the both the parties are present. Previously, we have received application from the counsel for the complainant and his client. The complainant contended that his counsel will be busy before the Delhi Courts and cannot attend this Commission. However, Mr. Ritesh Khare, counsel for the complainant is present and he also prays for adjournment which is hereby declined. Opportunity is given to argue the cases.

2. Counsel for the M.P. Housing Board submits that, yesterday (29.02.2016), the complainant appeared before the Civil Court. He was apprised of these matters, but he is not appearing in these cases, on one pretext or the other.

3. Counsel for the complainants insists that the cases be adjourned. Under these circumstances, the cases cannot be adjourned. The request is hereby declined. This order will decide the above-detailed three revision petitions, which pertain to the same impugned order. All the revision petitions stand admitted.

4. The case of the petitioner – M.P. Housing Board is that there was an advertisement in the Newspaper. All the five complainants have applied for HIGD uplex, 'C' category. The total price fixed by the M.P. Housing Board was Rs.17,15,000/-, for each Duplex. However, on 03.09.1997, the M.P. Housing Board – OP sent a notice of increase of the value of the Duplex at in the sum of Rs.4,29,000/- each, to the complainants. The stay was granted. However, the complainants were directed to deposit the instalments, as per the original schedule. The grievance of the complainants is that the possession was not given. They started residing in rented houses. In the meantime, in the year 2009, the stamp duty was increased. Consequently, they filed complaints before the District Forum.

5. The defence set up by the OP is that, as per the advertisement and brochure, the rates are changeable. They also placed reliance on a judgment of the Hon'ble Supreme Court, in Civil Appeal No. 2599/209, wherein it was held that the actual cost would be charged. It is also interesting to note that at the time of giving the notice for enhancement of the price, the complainants were also given an option to withdraw from the said Scheme. They were given 30 days' time for withdrawal of their proposal from the date of demand notice. Further, they were also given an option that they would be paid the entire amount along with interest @ 9% p.a., They were also warned that, otherwise, they will have to pay interest @ 10% p.a., on the delayed payment, as per rule. The District Forum vide its order dated 06.01.2012, passed the following order :-

"18. In the above said circumstances, this complaint is allowed partly only upto the extent the complaint is proved and it is ordered as under :-

A. In the light of the order dated 11.02.2009 of the District Consumer Disputes Redressal Forum, Vidisha, passed in Complaint No.125(T)/2008 and order dated 24.10.2008 passed by the Hon'ble M.P. State Consumer Disputes Redressal Commission, Bhopal, in Appeal NO. 1880/2008 and this order of the Forum, the Opposite party, Madhya Pradesh Housing Construction Board, Bhopal fix the final price of the flats afresh as per rule on the mandatory and reasonable grounds, if any, in the final stage of the building construction, issue demand letter afresh to the complainants within 30 days of the date of order. The complainants or any of the complainant then can exercise the option of acceptance or not acceptance such demand letter. If the complainants or any of them accepts the final price assessment, then he will have to make the payment of the difference of the amounts already deposited and the amount demanded within 30 days, otherwise the Opposite party Board will refund the deposited amount 9% interest per annum to the complainants/complainant, within 30 days. In otherwise position, interest will be payable at the rate of 10% p.a.

B. On making the payment of the final amount (amount of difference) assessed by the Opposite party Board, the Opposite party Board will ensure the execution of the lease deed of the concerned flats within 30 days of the payment.

C. All the expenses of the execution of lease deed to be incurred on the amount of differences of the final assessed price and prices of the concerned plot at that time will be borne by the Opposite party Board. The expenses of the execution of the lease deed to be incurred on the price of the plot at that time will be borne by the concerned complainant.

D. The Opposite party Board to pay Rs.5,000/- to the complainant as cost of the complaint".

6. Aggrieved by that order, both the parties preferred appeals before the State Commission. The State Commission held that the complainants are responsible for making the payment of the final price of the Duplex, fixed by the complainants. The State Commission further held that the complainants are entitled to receive interest more than 8% p.a., on the amount deposited by them. The State Commission further held, as under:

"11. Now the question is on this point for decision that reducing the price of plot, after the building construction for execution of lease deed on the final assessed price, who will bear the registration and stamp fee? In this regard, from the perusal of the record, it is clear that except the complainants, all the remaining allottees had got the proceedings of execution of lease deed on the plot before starting the building constructions. Before the construction of the building finally, the proposed price increase by the opposite party Board, the complainants had filed cases before the Forum, State Commission and National Commission, from time to time. In the decision of these court cases, natural sufficient time has been spent. During the pendency of court proceedings, the circumstances existing before the opposite party Board, appears beyond their control. Therefore, this argument of the opposite party Board is liable to be accepted that due to pendency of cases in various courts, proceedings of lease deed execution/registration, etc., was not possible Forum them. Therefore, for these circumstances, only Board cannot be held guilty. Due to final building construction, now the stamp due and registration duty will be imposed on the execution of lease deed on the price of a plot and flat. Therefore, in the interest of justice, it is ordered that stamp/registration fee on the value of that time of the plot will be borne by the complainants themselves and from the present total demand fixed on the flat and plot, reducing the price of plot, the stamp/registration fee payable on the balance amount will be borne half-half by both the parties.

12. As per the above said order, order of the District Forum is modified partly. Appeal No. 255/12 of the Opposite party Board is partly allowed. The counter Appeal No.347/12 filed by the complainants is rejected…….".

7. We have heard the counsel for the parties. The first objection raised by the counsel for the complainants is that the full price of the Duplex is Rs.17,15,000/- only. The said price cannot be changed. He has invited our attention towards the prior order of the State Commission, dated 24.10.2008, rendered by Mr. Justice S.K. Kulshrestha. The counsel for the complainant submits that the order regarding the price was finally passed in this order. He contended that this order has attained finality. The OP cannot contest the same, again and again.

8. We have perused this order. Para No. 2 of the said order runs as follows :-

"2. From the record it does not appear that the Housing Board has hiked the price at this stage itself. Even otherwise, since the price is required to be determined after completion of the house, there is no occasion for determining the final value of the house at this stage. The appellants can continue to make payment on the basis of the existing instalments till payment up to Rs.17,15,000/-. On completion of the work, if it is found that under the escalation clause, the price of the Housing Board is required to be re-determined, the Housing Board may determine it according to law and demand the difference of amount from the allottees".

9. The 'Duplex' were ready in the year 2010. Consequently, this order is of no help to the complainants. It must be borne in mind that the contract entered into between the parties, carries infinite value. It is settled law that the Court should refrain from any interpretation which would result in injustice and absurdity. AIR 1963 SC 25. The court cannot amend or substitute anything in the contract. Any order passed by any of the fora cannot prevail over the agreement. The parties are bound by the above said order. The order clearly, specifically and unequivocally stipulates that the prices are changeable. Above all, the complainants were given an option to take back the money with interest @ 9% p.a. Even today, the counsel for the OP has given another offer that the complainants can get back the money along with interest @ 9% p.a. The offer has been recorded in the judgment. It is for the complainants to move an appropriate application and withdraw from this Scheme.

10. The next question revolves around the question of stamp duty. It is stated that four complainants have deposited the entire amount along with the increased rate, but they have not paid the stamp duty. The Duplex are ready since 2010.It is difficult to fathom, why the complainants are not getting the possession of the Duplex. The complainants have adopted a Fabian Policy for the reasons best known to them. The complainants want the benefit of both the worlds. It appears that they are waiting for the appropriate time so that they may be able to sell these Duplex,at a very higher rate. The fault, if any, lies at the doors of the complainants. The entire stamp duty has to be paid by the complainants and nobody else. The complainants themselves are responsible for such delay. They have made a vain attempt to make bricks without straw.

11. The next submission made by the counsel for the complainants is that the OP did not deposit the statutory amount prescribed under Section 15 of the C.P. Act, 1

Please Login To View The Full Judgment!

986. This argument should have been raised before the State Commission. It is the discretion of the State Commission to take the appropriate action. 12. Under these circumstances, we hereby modify the order passed by the State Commission. The entire stamp duty shall be paid by the complainants, within 90 days' from today, otherwise, they will have to pay penalty of Rs. 500/- per day, each, to the OP, till the registration is completed. The possession of the Duplex be given to all the complainants in one week, after the expiry of said 90 days', otherwise, penalty of Rs.500/- will be payable by the OP to each of the complainants, till the possession is given, but complainants must signify their willingness to have the possession. As prayed by the counsel for the complainant, it is directed that proper possession be given to the complainants, with all the facilities. It is also made clear that the complainants will deposit the entire amount along with the increased rate, interest amount, as per rules/agreement, to the OP, within 90 days. The revision petitions stand disposed of. Revision Petitions Disposed of.