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Skyline Construction & Housing Pvt. Ltd. v/s Kumar Selvaraj & Another

    REVISION PETITION NO.380 OF 2011

    Decided On, 01 March 2011

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. SURESH CHANDRA
    By, PRESIDING MEMBER

    For the Petitioner: Shamik Sanjanwala, Ms. Sudha Malla, Advocates. For the Respondents: -----



Judgment Text

SURESH CHANDRA, MEMBER

In this case, the OP who is petitioner herein is a company carrying on business of development and construction of residential and commercial houses/ units and allot the same to its members. It proposed a residential apartment complex known as Skyland Paradiso in Judicial Layout, Bangalore and offered allotment of residential flats in that project to the intending purchasers. Attracted by the same, the complainants who are respondents herein booked a residential flat bearing no.403 measuring 1310 sq.ft. in Block-F of that project. The total sale consideration of that flat including the car parking area in the basement was fixed at Rs.23,11,500/-. Accordingly, the complainants paid Rs.4,62,300/- to the OP Company and the same was acknowledged vide its letter dated 22.08.2005. According to the complainants, the OP Company had promised and undertaken to complete the construction and deliver the physical possession of the flat to the complainants within a period of 18 months from the date of receipt of the amount. Even as the complainants were ready and willing to pay the balance sale consideration as per the schedule of the OP Company, the OP Company failed to perform their part of the obligation in constructing the apartment and providing the agreed flat to the complainants in spite of repeated requests of the complainants. The complainants issued letters on 18.08.2007 and 07.09.2007 but according to them, there was no response to those letters. The complainants, therefore, filed a consumer complaint before the District Forum with the following prayers:-

'a. Directing the Opposite party to construct and allot the Flat No.403, measuring about 1310 square feet, in Block-F of the project 'Skyline Paradiso', situated at Judicial Layout, Bangalore; OR in the alternate,

b. directing the Opposite Party to reimburse a sum of Rs.4,62,300/- (Rupees Four Lakh Sixty Two Thousand and Three Hundred Only) together with the interest of 18% per annum from the date of investment till realization.

c. directing the Opposite party to pay a sum Rs.3,50,000/- (Rupees Three Lakh Fifty Thousand Only) as damages towards monetary loss.

d. directing the Opposite party to pay a sum of Rs.1,50,000/- (Rupees One Lakh Fifty Thousand only) as damages towards the mental agony.

e. directing the Opposite party to pay the cost of this Complaint and'

2. On being noticed, the OP Company admitted having booked a flat in question but under its pre-launch booking. It, however, denied that it had promised and undertaken to complete the construction of the apartments and deliver the physical possession to the complainant within 18 months of the allotment. It was further submitted that the pre-launch booking was subject to the finalization and sanction of the plans and layout by the competent authority. While the OP had taken necessary steps to finalize and obtain sanction for the plan, the process of obtaining the sanction for the plan takes time and hence the construction work could not be started. Situation being beyond the control of the OP Company, it resisted the complaint and prayed for its dismissal in limine. A plea was also raised that the complaint is not maintainable because there is no service being rendered by the OP Company since it involved only booking of an immovable property for which the amount had been deposited by way of investment by the complainant and not as a consumer and hence the complainant has to put up a claim before the Civil Court for refund of the amount.

3. On appraisal of the issues and the evidence adduced by the parties and taking into consideration the submissions made and contentions raised, the District Forum overruled the preliminary objection of the OP Company regarding the subject matter of the dispute not being a consumer complaint. On the strength of ratio laid down in the landmark judgment of the Apex Court in the case of Lucknow Development Authority Vs. M.K. Gupta [AIR 1994 SC 787], the District Forum overruled the objection and observed that the flat in question booked by the complainants is very much part of a consumer dispute and hence comes under the purview of the Consumer Protection Act, 1986. Regarding the other prayers made in the complaint, while holding the OP Company, which is a service provider, as deficient while rendering service to the complainants who are consumers, discussed at length the extent of relief which could be granted to the complainants in the dispute in question. In this regard, the following observations of the District Forum are very pertinent and hence are reproduced below:-

'8. POINT NOS.2&3 : No doubt, the Complainants have sought for a direction to the OP Company to allot the agreed Flat to them in the proposed Project. However having regard to the realties as evidenced, such a relief cannot be granted for the reason that everything is in a fluid stage and nothing has been crystallized and that uncertainty has prevailed over the implementation of the very Project. Hence, the alternative remedy sought for need be considered. Admittedly, the OP Company have not materialized their Project so far. Admittedly, they have also not given any relief to the Complainants so far. Admittedly, a huge amount of the Complainants is with the OP Company for years together. It is but proper in the circumstances to infer that the OP Company must have been benefited from out of that amount substantially. Wherefore apart from ordering refund of the said amount of Rs.4,62,300/- with interest at a reasonable rate, we deem it proper to fix certain sum by way of cost and compensation. In the circumstances, if interest is awarded at 18% p.a. from the date of payment till refund, ends of justice would meet. As far as compensation is concerned, though the Complainants have laid a Claim for a huge amount by way of compensation, ends of justice would meet if a sum of Rs.10,000/- is awarded by way of cost and compensation since, what has been paid by the Complainants is only a part of the sale consideration and not the entire sale consideration.'

(Emphasis by us)

4. Accordingly, the District Forum accepted the complaint in part by directing the OP Company to refund Rs.4,62,300/- to the complainants along with interest @ 18% p.a. from the date of payment till refund. For the reasons stated in its order, the District Forum, directed the OP Company to pay only Rs.10,000/- to the complainants by way of cost as well as compensation for the agony, sufferance and the loss to which the complainants were put to on account of deficiency of service by the OP Company. Aggrieved by this order of the District Forum, the OP Company challenged the same in appeal before the State Commission but the same did not find favour with the State Commission and vide its impugned order dated 25.10.2010, the State Commission dismissed the appeal and upheld the order of the District Forum. It is against this impugned order of the State Commission that the present revision petition has been filed.

5.We have heard learned counsel for the petitioner company and have also carefully perused the orders of the fora below as well as the record placed before us. The basic facts of the case except the question of completion of the project and delivery of the flat within a period of 18 months as alleged by the complainants, are not under dispute. The legal issue regarding the dispute being a consumer dispute or otherwise has been adequately dealt with by the fora below and we do not find any infirmity in their finding. As regards the denial of the OP that they never promised or undertook to complete the project and deliver the possession within a period of 18 months, we find that neither the complainants produced any document to support their contentions nor any material has been produced by the OP Company to prove their respective submissions. In the circumstances, it was only appropriate on the part of the District Forum to reject the first prayer of the complainants regarding direction to the OP to construct and allot the flat since the building plan had not been sanctioned by the competent authority. However, when the complainants have deposited substantial amount with the OP Company and have waited for substantial period, we do not find any infirmity in the District Forum having directed the OP Company to refund the amount in question along with interest @ 18% p.a. from the date of the deposit

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till actual payment. At this stage, learned counsel for the petitioner company pleaded that the rate of interest awarded by the District Forum is on the higher side and needs to be reduced. We have gone through the detailed and well-reasoned order of the District Forum and we agree with the District Forum. There is enough justification to award the interest @ 18% p.a. keeping in view the facts and circumstances of this case. Incidentally, in spite of the request for heavy compensation by the complainants, no separate compensation as such except a lumpsum of Rs.10,000/- has been awarded by the District Forum. In the circumstances, we do not find any reason to interfere with the order of the District Forum, which has been duly upheld by the State Commission for the reasons elaborated in the impugned order. Finding no merit in the revision petition, we are left with no option but to dismiss the same at the threshold with no order as to costs.
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