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Ansal Housing & Construction Ltd., New Delhi v/s Hemraj & Another

    First Appeal No. 258 of 2019

    Decided On, 05 July 2021

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER

    For the Appellant: Vikas Tiwari, Advocate. For the Respondents: Ajay Pal Singh, Advocate.



Judgment Text

1. This Appeal is filed against the order dated 02.02.2018 of Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short "the State Commission) in in CC/663/2017, whereby the State Commission allowed the Complaint filed by the Respondents/Complainants.

2. Alongwith the Appeal, IA/3787/2019 an application for condonation of delay of 55 days has also been filed by the Appellant. However, as per report of the Registry, there is a delay of 26 days. In the interest of justice, IA is allowed and delay condoned.

3. The case of the Complainants/Respondents is that they applied for allotment of a flat for a consideration of Rs.34,03,242/-. They paid an amount of Rs.50,000/- as booking charges. They also deposited 15% amount with the application form. They were allotted a flat, vide allotment letter dated 08.06.2010. The Complainants paid 80% amount within 45 days from the date of allotment and the balance 5% amount was to be paid at the time of possession. According to the Complainants, Opposite Party had neither completed the development work in all respect nor complied with building Regulations. Occupancy Certificate had not been obtained by the Opposite Party, but the possession had been handed over on the misrepresentation that all approvals and clearances have been taken by them. Stilt Parking was also not allotted to the Complainants. Possession was also handed over to them with a delay of 48 months. Alleging deficiency in service on the part of the Opposite Party, Complainants filed Consumer Complaint before the State Commission with following prayer: -

"i. To hold that completion certificate has not yet been obtained by the builder but allegedly possession has been handed over which is per se deficiency in service & unfair trade practice and on this count, to hold the builder liable to pay a consolidated sum of Rs.5,00,000/- to the complainants for the harassment, mental agony so caused & towards adequate compensation.

ii. To further hold that by not providing stilt parking to the complainant the builder has indulged in unfair trade practice and deficiency in service and on this count, to hold that builder liable to further pay a consolidated sum of Rs.5,00,000/- to the complainants for the harassment, mental agony so caused and towards adequate compensation and to direct the builder to immediately provide parking space to the complainants, which is his statutory duty.

iii. To hold that the builder/promoter has indulged in unfair trade practice and deficiency in service by delaying in handing over the possession of the flat, whereas it was promised to be handed over within 15 months from the date of booking and on this count, to hold the builder liable to further pay a consolidated sum of Rs.5,00,000/- to the complainants for the harassment mental agony so caused and towards adequate compensation.

iv. To direct the builder to make payment of Rs.30,000/- as litigation expenses."

4. State Commission proceeded ex-parte against the Appellant/Opposite Party and allowed the Complaint with following directions: -

"i. OP is directed to deliver the completion certificate to complainants, as mandated by Section 14 (ii) of PAPRA Act, 1995 accompanied with the necessary approvals within a period of three months from the date of receipt of certified copy of the order.

ii. the OP is also directed in this ex-parte complaint to provide the stilt parking to complainants as promised in Ex. C-1.

iii. Since the possession was to be delivered by OP to complainants within the stipulated period and OP committed default by causing unnecessary delay in delivery of possession, hence the complainants are entitled to compensation thereof. Consequently, direction is issued to OP to pay interest on the deposited amount to complainants @ 12% p.a. from the scheduled date of delivery of possession or the payment of last instalment till date of delivery of completion certificate under Section 14 (ii) of PAPRA Act 1995 accompanied with the necessary approvals within a period of three months from the date of receipt of certified copy of the order.

iv. OP is also directed to pay Rs.30,000/- as cost of litigation to complainants."

5. Aggrieved by the order of the State Commission, Appellant/Opposite Party has filed this Appeal.

6. Heard the Learned Counsel for the Parties and carefully perused the record. Learned Counsel for the Appellant submitted that the notice issued by the State Commission was not received by the Appellant. The State Commission, in the order dated 04.12.2017 recorded that "Neither registered cover has been received back nor AD has been received." However, the State Commission preceded ex-parte against the Appellant only on the basis of presumption and apprehension. He submitted that the State Commission had violated the principles of natural justice as the Appellant was denied the right of being heard. He requested that the matter be remanded to the State Commission for deciding the Complaint afresh on merits.

7. Learned Counsel for the Respondents/Complainants submitted that as the Appellant failed to appear before the State Commission, the Complaint was proceeded ex-parte and decided against the Appellant. There is no violation of principles of natural justice and the impugned order is justified. He submitted that the Appeal be dismissed.

8. In para 3m the Appellant stated that "the Petitioner being absolutely unaware of the proceedings conducted before the State Commission could not have imagined that such directions will be passed against the Petitioner." Learned Counsel for the Appellant submitted that he was not aware of the proceedings conducted before the State Commission. On the other hand, in para 3e Appellant stated that "the Petitioner herein also filed its reply to the Complaint filed before the Consumer Forum by the Respondent, but the Complaint was disposed off by the Ld. Consumer Forum vide order dated 08.03.2017, without going into the merits of the case." On the one hand Appellant stated that it was aware of the proceedings before the State Commission. On the other hand, he stated that he was unaware of the proceedings before the State Commission. Appellant cannot blow both hot and cold at the same time.

9. The Appellant has not pleaded anything on the merits of the case. Even in the Appeal it has been prayed that the impugned order be set aside and matter be remanded to the State Commission for fresh disposal of the Complaint. In para 3a of the Appeal, Appellant/Opposite Party had admitted that the Complainants have made the payments as stated in the Complaint. It had also admitted that possession was offered to the Complainants on 24.04.2014. State Commission after going through the record rightly held that the Opposite Party was deficient in service in giving delayed possession to the Complainants. Appellant/Opposite Party is also silent on the question of completion certificate as well as allotment of stilt parking to the Complainants. State Commission recorded that the Complainant had proved in evidence and Opposite Party also admitted that the possession was to be handed over within 15 months from the date of booking. The Opposite Party delivered the possession after expiry of 48 months from the date of booking. State Commission obs

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erved that Ext.C-1 was an email regarding booking of the flat which defined that covered parking will also be allotted to the Complainants. Appellant/Opposite Party also did not file any document to prove that necessary approvals or completion certificate had been obtained by it. Since the allegations of the Complainant remained unrebutted by the Opposite Party before the State Commission and even in the Appeal the Opposite Party did not plead anything on merits of the case, I find no reason to disagree with the order of the State Commission. 10. In view of the above discussion, I concur with the judgment of the State Commission with the modification that Appellant/Opposite Party shall pay simple interest on the deposited amount @ 6% instead of 12% per annnum. 30 days' time is given to comply with this order.
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