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Galaxy Homes Pvt. Ltd. vs. Girish, N dated 2014-09-08

     NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

    NEW DELHI

 

 

REVISION PETITION No. 2649 OF 2013

                                                                      With

              I.A. 4500 of 2013 (for Stay)

          I.A. 4501 of 2013(for Condonation of Delay)

 (Against order dated 17.01.2013 in First Appeal No. 271 of 2012 of the Kerala State Consumer Disputes Redressal Commission, Vazuthacaud, Thiruvananthapuram)

 

 

    Galaxy Homes Pvt. Ltd.

    Kaloor Junction,

    Cochin 682 017

    Reptd. by its Managing Director

    P.A. Jinas,

    S/o Shri P.K. Abdul Rahiman,

    Glaxy House Deshbhimani Road,

    Kaloor, Cochin-682017

    Elamkulam Village, Kannayannur,

    Ernakulam District, Kerala

   

 

                                      

                                      …..Petitioner

                  Versus

 

 

   Girish, N

   S/o Late Shri M. Narayannan Nair

   LIG 593, Panampilly Nagar,

   Ernakulam 682 036,

   Elamkulam Village,

   Kannayannur Taluk, Ernakulam District

   Kerala                            

                                      .... Respondent

 

BEFORE:

 

      HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

      HON’BLE Mr. SURESH CHANDRA, MEMBER

 

For the Petitioner :  Mr. Dilip P, Advocate

 

                       

 

Pronounced on: 8th September, 2014

 

 

         ORDER

 

 

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

 

 

      Petitioner/Opposite Party being aggrieved by order dated 17.1.2013 passed byKerala State Consumer Disputes Redressal Commission, Vazuhacaud Thiruvananthapuram(for short,‘State Commission’) in(First Appeal No.271 of 2012) has filed present revision petition under Section 21(b) of the Consumer Protection Act,1986 (for short, ‘Act’).Along with it, an application seeking condonation of delay of 31 days has also been filed.

2.   Brief facts are that Respondent/Complainant had booked a flat in the apartment project of the petitioner named “Galaxy Clifford”. Consequent to the booking, an agreement for construction and a sale deed were entered into between the parties on 13-01-2007 and 03-03-2007, respectively. As per the agreement, petitioner was to construct the flat on or before 31-08-2008. However, the revised payment schedule of the petitioner was accepted by the respondent on condition that the construction of the flat would be completed before February 2009, for which petitioner failed. The respondent had taken loan from H.D.F.C. Bank to pay the money and has been paying huge sums to the bank. Thus, respondent prayed for the following reliefs;

                         i.     To adjust an amount of Rs.21,604/- per month from August 2008 till the date of delivery of possession of the flat.

                       ii.     To consider revision in the water and electricity connection charges as against the irrational amount of Rs.1.65 lakhs as stated in the final bill.

                     iii.     To make a written delivery commitment of the flat.

                       iv.     To pay an amount of Rs.10,000/- per month from August 2008 onwards.

                         v.     To pay a compensation of Rs.8 lakhs.

 

3.   Petitioner in its written versions took the plea that respondent is not a consumer as per the Act. As per Clause 18 of the agreement, Civil Courts in Ernakulam alone have jurisdiction to entertain the dispute, if any between the parties. Petitioner is ready and willing to hand over the flat to the respondent, if he makes the final settlement of the bill amounting to Rs.6,16,495/-, as per the revised payment schedule before 28.2.2009. The delay in construction was caused due to the reasons beyond the control of the petitioner. The respondent has no cause of action against the petitioner.

4.  District Forum vide order dated 31.12.2011, partly allowed the complaint. It directed the petitioner to pay compensation of Rs.1,00,000/- to the respondent.

5.   Being aggrieved, petitioner filed appeal before the State Commission, which did not find any merits and dismissed the same.

6.   Hence, this revision.

7.   We have heard the learned counsel for the petitioner and gone through the record.

8.   It has been contended by learned counsel that respondent did not produce any evidence before the Forum to substantiate his claim of compensation based on the delay in handing over the possession of the flat. The reasons for delay in completion of the project were informed to the respondent,vide letter dated 24.09.2009. Further, the basic cause of the delay was, the non-receipt of the “No Objection” certificate from the Kerala State Pollution Control Board and Kerala Fire and Rescue Service Department. The applications for the same were submitted by the petitioner in advance and it had taken all steps for getting the relevant certificates. However, due to official delays these certificates were yet to be received from the concerned authorities. Lastly, as per Clause 22 of the agreement, petitioner is not liable for such delay.

9.  The main ground on which condonation of delay has been sought read as under;

It is submitted that certified copy of the impugned order dated 17.01.2013 passed by the State Commission signed by the Registrar on 08.03.2013 and the same was received by the Petitioner’s Advocate on 18.03.2013. The receipt of the Order dated 17.1.2013 passed by the State Commission was communicated to the Petitioner by Advocate last day of March,2013. The Petitioner was under the impression that in the month of June this Hon’ble Commission is closed for vacations. The petitioner was informed about the functioning of the Registry of this Hon’ble Commission, immediately thereafter the Petitioner made efforts to pursue the case and on advise received Petitioner contacted the advocate at Delhi and papers were forwarded to the Advocate at Delhi and arrangement were made for filing of the present petition. After getting the entire documents the Advocate for the Petitioner drafted the petition. It is submitted that the delay of 31 days is only on account of the aforesaid facts and circumstances”.

 

10. As per the above averments, certified copy of the order was received by petitioner’s counsel on 18.03.2013, whereas present revision was filed only on 17.7.2013. There is no explanation as to why counsel for petitioner took four months for filing the revision. Moreover, name of that counsel has also not been mentioned. The main grounds on which condonation of delay has been sought are absolutely vague. We are not satisfied with the explanation given.  Supreme Court, in a recent judgment, Anshul Aggarwal vs. New Okhla Industrial Development Authority–IV (2011)CPJ 63 (SC) has held that while deciding the application filed for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if the appeals and revisions which are highly belated are entertained.  Relevant observations are as under;

It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act,1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer foras”.

 

11.  Thus, no sufficient ground is made out for condoning the delay in filing of the present petition.  12.   Now coming to the merits of the case, the District Forum in its order has held;

“8 At the instance of the complainant, an expert commissioner was appointed by this Forum to ascertain the present condition of the flat. The report of the expert commissioner was admitted in evidence as Ext.C1 without demur.The expert commissioner visited the flat on 13-09-2010 and as on that date the flat of the complainant was not in a habitable condition and 3 more months were required to complete the construction fully. Having at the outset agreed to complete the construction on 31-08-2008 and further mutually agreed to postpone the date of completion to February 2009, the opposite party took more than a year to complete the same. The opposite party failed to prove or did not adduce any evidence to substantiate the contention that they were not able to complete the construction in time for the reasons beyond their control.

 

9. According to the complainant, he took the possession of the flat during the pendency of the complaint in this Forum, since his landlord directed him to shift from his erstwhile residence. There is no reason to disbelieve the reasons stated by the complainant especially so, because the opposite party has not challenged the same. The complainant contended that due to the delay in handing over the possession of the flat, he had to incur expenses towards rent and to suffer financial loss. But nothing is on record to substantiate the same. However considering the entire evidence in this case, the complainant has had to suffer lot of mental agony and some financial loss due to the delay in handing over the possession of the flat which has not evidently been raised before us. Though, there is no yardstick to quantify the loss sustained by the complainant for his own reasons and his silence on the issue, we think that a compensation of Rs.1,00,000/- is enough to abate the agony of the complainant.”

 

13.  The State Commission, while dismissing the appeal in its impugned order observed ;  

7. Ext.B4 is the agreement dated 19.1.07 entered into between the opposite party and  the complainant for construction of flat No.G4 in the apartment complex named Galaxy Clifford Block No.2 to be constructed by the opposite party. As per Ext.B4, the total cost of construction of the flat was Rs.21,06,495/-.It was agreed that the construction would be completed on or before 31.8.08.  But subsequently as per Ext.B6, the parties agreed to postpone date for completion of construction and delivery of possession from 30.8.08 to February 2009. Ext.B6 is dated 8.3.08. It is admitted that during the pendency of the complaint before the forum, the complainant took possession of the flat in question on 16.5.11 from the opposite party.  This was beyond the agreed date for completion of construction as per Ext.B6. Deficiency in service is allegedly the cause of delay in completing the construction and handing over possession of the flat to the complainant. 

 

8. The opposite party has contended that as per the revised agreement schedule, the complainant had to pay Rs.6,16,495/- on or before 29.2.09 and he failed to pay the amount. Apart from this there was delay in getting no objection certificates from the Kerala State Pollution Control Board and the Kerala Fire and Rescue Services Department  though applications for obtaining the same were submitted on time. So, the contention of the opposite party is that since the delay occurred due to reasons beyond their control, they are not liable. While it is an admitted fact that the appellant himself was at fault in not paying the agreed amount on time it appears that the delay in completing the construction and handing over possession of the flat was not entirely due to that fact alone. The delay happened due other reasons as well. It appears that the complainant ultimately took possession of the flat after paying the agreed amount because he was in urgent need to occupy the same. This is a circumstance that indicates that he has suffered loss during the period the construction was delayed.  It is also a fact that as per Exts.B1 to B3, the complainant seems to have accepted possession of the flat without complaint and without further claim. However that the complainant has suffered some loss due to delay in completing the construction, appears to be true. So considering the circumstances as a whole the forum was right in scaling down the claim of the complainant and awarding only Rs.1 lakh as compensation to the complainant. There is also no appeal filed by the complainant. The delay in completing the construction for whatever reason justifies the award of compensation of Rs.1 lakh made by the forum. It follows that there is no merit in the appeal. Hence the appeal is liable to be dismissed”.

  

14. It is well settled that under Section 21(b) of the Act, scope of revisional jurisdiction is very limited.  Under Section 21 of Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

15.  The Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. 2011 (3) Scale 654 has observed ;

Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora”.

 

16.  As per clause no.4 of the construction agreement dated 13.1.2007 executed between the parties, the construction was to be completed by 31.08.2008 and possession was to be handed over within 150 days after completion, provided entire amount due was paid by the respondent. It is also an admitted fact, that later on payment schedule was revised and respondent had to pay Rs.6,16,495/- on or before 28.2.2009 and possession was to be handed over within 150 days after the completion, as per the revised payment schedule.

17.  Admittedly, petitioner did not hand over the possession within the revised schedule period. It is also an admitted fact that certain payments were due towards the respondent. However, as per the Commissioner’s report when he visited the flat on 13.09.2010, even then the flat was not in a habitable condition. Thus, under these circumstances how it was expected of the respondent to make full payment,  when there was default on the part of the petitioner itself to hand over the possession within the specified period. Moreover, it has come on record that respondent had to take the possession under compelling circumstances, since his landlord had directed him to vacate his erstwhile residence. Thus, deficiency on the part of the petitioner is writ large in this case.    

18. In the present case, there are concurrent findings of fact given by both the fora below. Thus, no jurisdiction or legal error has been shown to us to call for interference in the exercise of power under section 21 (b) of the Act, since the fora below have given cogent reasons in their order, which do not call for any interference nor they suffer from any infirmity or revisional exercise of jurisdiction.

19.  It is not that every order passed by the Fora below is to be challenged by a litigant even when the same is based on sound reasoning.

20.  Thus, present revision petition stand dismissed being barred by limitation as well as on merits, with cost of Rs.10,000/-(Rupees Ten Thousand only).

21.  Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case, petitioner fails to deposit the cost within prescribed period, then it shall be liable to pay interest @ 9% p.a. till its realization.

22.   List for compliance on 10th October, 2014.

 

 

……..…………………

         (V.B. GUPTA,J)

     PRESIDING MEMBER

 

………………………….

  (SURESH CHANDRA)

 MEMBER

SSB/

 


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