Jaina Properties (P) Ltd. Vs. Bhagwan Dass Malik and Another - Court Judgment

Lokeshwar Prasad, President:

1. The present appeal, filed by the appellant under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act), is directed against order dated 6th August, 1998, passed by District Forum-I, Tis Hazari, Delhi, in Complaint Case No. 2509/1993 entitled - Shri Bhagwan Dass Malik and Anr. v. M/s. Jaina Properties Pvt. Ltd.

2. The facts, relevant for the disposal of the present appeal briefly stated, are that the respondents, Shri Bhagwan Dass Malik and Smt. Radha Malik, had filed joint complaint before the District Forum, under Section 12 of the Act, averring therein that the respondents, in response to an advertisement issued by the appellant in May, 1988, which was published in the newspapers, had booked a commercial space, bearing No. B-79, with a super area of approximately 115 sq. ft., in plot Nos. 14-19, Jaina Commercial Complex, Paschim Vihar, New Delhi. It was stated that against the above booking the respondents had paid a sum of Rs. 52,000/-, vide cheque No. 273706 dated 20th May, 1988, drawn on State Bank of India, Jawalaheri, Delhi Branch in favour of the appellant. The grievance of the respondents in the complaint filed by them in the District Forum, in nut-shell, was that though the respondents had made the entire payment, yet the appellant failed and neglected to perform its part of the contract and did not hand over the possession of the booked space to the respondents, despite repeated requests in writing and personal visits. It was stated that a legal notice was got served by the respondents on 7th November, 1992 and in response to that legal notice, the appellant asked the respondents to visit the site for taking possession of the booked space. It was stated that when the respondents went to the site on 8th January, 1993, they were offered possession of space bearing No. B-91, measuring only 97.0 sq. ft. instead of the booked space bearing No. B-79 measuring 115 sq. ft. It was stated that since the area offered was less than the area booked, the respondents refused to take the possession and conveyed their refusal to the appellant, vide their letter dated 27th January, 1993.

3. In the complaint filed by the respondents, it was prayed that the appellant be directed to hand over vacant physical possession of the booked space. The respondents had also claimed other reliefs as detailed in the prayer clause of the complaint filed by them before the District Forum.

4. The claim of the respondents before the District Forum was resisted by the appellant. In the reply/written version, filed on behalf of the appellant it was stated that the space booked by the respondents was ready and complete in all respects as far back as 4th May, 1988, but the respondents failed to take possession of the same and also failed to make payment of the allied charges as per the agreement between the parties. It was stated in the reply filed on behalf of the appellant that the appellant did not ask the respondents to take possession of space bearing No. B-91, admeasuring 97 sq. ft. instead of space bearing No. B-79. It was stated that the appellant was always ready and willing to hand over the possession of the booked space. It was stated that there was no ‘deficiency in service on the part of the appellant and the complaint filed by the respondents deserved to be dismissed with costs.

5. The perusal of the impugned order reveals that during the course of arguments the learned Counsel for the appellant had also taken an objection to the effect that the complaint filed by the respondents, was barred by limitation under Section 24A of the Act. On a perusal of the documents/material on record it is further apparent that the respondents during the course of arguments had prayed that they were no longer interested in the possession of the booked space and the amount paid by them to the appellant be directed to be returned to them together with interest and compensation.

6. The learned District Forum, vide impugned order, has allowed the complaint filed by the respondents and has directed the appellant to return a sum of Rs. 52,000/-, paid by the respondents to the appellant for the space in question, together with interest at the rate of 18% per annum from the date of booking till realization. The learned District Forum has also awarded a sum of Rs. 1,000/- as cost of litigation.

Feeling aggrieved, the appellant has preferred the present appeal under Section 15 of the Act.

7. A notice of the appeal was issued to the respondents, who have entered appearance through their Advocate and have also filed a detailed reply to the memorandum and grounds of appeal. In the reply to the memorandum and grounds of appeal, filed on behalf of the respondents, it has been categorically stated that possession of booked space was not given to the respondents despite several visits and requests made vide letters dated 29th November, 1988, 11th April, 1991 and 31st May, 1991. It is stated that each time the respondents were promised possession and were told to come at a future date by the officials of the appellant. In the reply it is stated that the demand of allied charges made by the appellant was unreasonable and the document demanding alied charges has been prepared in order to defeat the lawful claim of the respondents. In the reply, filed on behalf of the respondents, it has been stated that there had been ‘deficiency in service on the part of the appellant and that the order passed by the District Forum suffers from no infirmity and that the orders passed by the District Forum be upheld and the appellant be directed to pay the amount in terms of the orders of the District Forum being impugned in the present proceedings.

8. We have heard the learned Counsel for the parties at length and have also carefully gone through the documents/material on record, including the written submissions filed on behalf of the appellant. It is not in dispute that the respondents - Shri Bhagwan Das Malik and Smt. Radha Malik, had jointly booked a commercial space, bearing No. B-79, with approximate super area of 115 sq. ft. in Plot Nos. 14-19, Paschim Vihar, New Delhi, on 20th May, 1988 and had paid an amount of Rs. 52,000/- vide cheque No. 273706 of even date drawn on State Bank of India, Jawalaheri, Delhi Branch, in favour of the appellant. The grievance of the respondents in the complaint filed by them before the District Forum, while alleging deficiency in service on the part of the appellant, in brief, was that despite receiving full cost of the commercial space the possession of the same had not been delivered to them by the appellant. On the other hand, the case, as set up by the appellant, in brief, is that there has been no deficiency in service on their part and the booked space was complete in all respects by 4th May, 1988 and the default is on the part of the respondents in not talking over the possession of the space in question and not on the part of the appellant.

9. The only question requiring consideration by this Commission in the present appeal is as to whether was there any deficiency in service on the part of the appellant within the meaning of Section 2(1)(g) of the Act.

10. As already stated, the stand of the appellant is that the booked space was ready for delivery and there was no deficiency in service on its part. In the present case, the age old saying that ‘men may lie, but not the circumstance is aptly applicable because it is not in dispute that when possession of the booked space was not delivered to the respondents, the respondents got served a legal notice dated 7th November, 1992 on the appellant and the appellant gave a reply to that legal notice vide letter dated 19th November, 1992. It is also not in dispute that in response to the above said communication of the appellant, the respondents visited the site in question on 8th January, 1993 for the purpose of taking over possession of the booked space. The case of the respondents is that on 8th January, 1993, when they went to the site to take over the possession, they were offered possession of space bearing No. B-91 and not B-79. Moreover, the area of the space offered, bearing No. B-91 was only 97 sq. ft. instead of area booked which was 115 sq. ft. Since the area offered was less, the respondents refused to take possession of the same and conveyed their refusal to the appellant, vide letter dated 27th January, 1993. A copy of letter dated 27th January, 1993, together with registered A.D. receipt, has been produced by the respondents before the District Forum.

11. From the narration of the above facts, it is apparent that as against the booked space bearing No. B-79 admeasuring 115 sq. ft., space offered by the appellant on 8th January, 1993 was altogether different, i.e. B-91, having lesser area of only 97 sq. ft. The appellant has made a vain attempt to justify the above lapse by saying that the respondents had approached the appellant and stated that due to paucity of funds they were unable to take possession of the booked space, B-79, admeasuring 115 sq. ft. and had requested the appellant to give space having smaller area. The above contention, advanced by the appellant, has been specifically denied and there is nothing on record to substantiate the above contention being advanced on behalf of the appellant. In the absence of any satisfactory proof, we find ourselves unable to accept the above contention being advanced by the appellant.

12. The learned Counsel for the appellant, during the course of arguments, has placed reliance on a decision of the Honble National Commission in case Ashok Tayal and Anr. v. Delhi Development Authority and Ors., reported as II (1995) CPJ 3 (NC). We have carefully gone through the above said decision of the Honble National Commission. The same in no way helps the cause of the appellant because the same is distinguishable on facts. In the case of Ashok Tayal and Anr. (supra), relied upon by the learned Counsel for the appellant, the property in question was disposed of by the respondent-DDA in open auction, held by DDA, on 28th November, 1989, whereas the present case is not a case of outright sale of immovable property in public auction.

13. The learned Counsel for the appellant during the course of arguments vehemently contended that in the complaint, filed by the respondents, the respondents had not claimed the relief which has been given to them by the District Forum. It was contended by him that in the complaint filed by the respondents, the respondents had prayed for the possession of the booked space and not for the refund of the amount paid by them. It was stated by him that the learned District Forum has directed, vide impugned order, the refund of the amount paid by the respondents to the appellant, which relief could not have been granted by the District Forum as the same was not claimed by the respondents.

14. In our opinion, the above contention, advanced by the learned Counsel for the appellant, is also devoid of substance in view of the decision of the Honble National Commission in case Distt. Manager, Telephones, Patna and Anr. v. Dr. Tarun Bharthuar and Anr., reported as I (1992) CPJ 47 (NC). In the above said case, an objection was taken by the appellant, stating that the State Commission had quashed the bills from March, 1989 to August, 1989, though the respondents has not asked for that relief in his complaint. The Honble National Commission, while disallowing the above objection raised by the appellant, held—

“In the Consumer Protection Act `complainant has been defined in Section 2(2)(c). According to this definition, in a complaint about any unfair trade practice, the complaint has to indicate the loss or damage suffered by the complainant. But in respect of any complaint regarding deficiency in service, it is sufficient for him to specify the deficiency therein. In other words, there is no requirement that the complaint regarding deficiency in service must also indicate the loss of damages suffered by the complainant due to that deficiency.

The reliefs, which a Consumer Disputes Forum can grant, are specified in Section 14. As per Section 14(1)(d) it is for the Consumer Forums to pay an appropriate amount by way of compensation to a consumer for any loss or injury suffered by him due to the negligence of the opposite party. In other words, it is not mandatory or obligatory on the part of the complainant to ask for a specific relief and the Consumer Forums are not debarred from granting reliefs not prayed for by the complainant in the complaint.”

(Emphasis supplied)

In a subsequent decision in case United India Insurance Co. Ltd. v. M/s. Mohan Lal and Sons, I (1995) CPJ 317=1986-96 Consumer 1685 (NS), the Honble National Commission, while placing reliance on its earlier decision in case Karnataka State Electricity Board v. Escon Pvt. Ltd., I (1991) CPJ 182 (NC), has held—

“We reiterate that if the facts of a complaint before a Consumer Forum reveal that the amount payable to the complainant by way of the refund of the price of the goods or of the value of service rendered has been unjustifiably and wrongfully reduced, the Consumer Forums are not debarred from taking cognizance of the same. Merely because the complainant due to ignorance has failed to make a specific prayer for a relief in his petition will be no bar to the Consumer Forums taking cognizance of the same suo motu.”

(Emphasis supplied)

15. The above decisions of the Apex Commission virtually clinch the issue insofar as the above objection of the appellant is concerned, because it is not in dispute that the respondents had paid a sum of Rs. 52,000/- to the appellant towards the cost of space booked by them. The space in question was booked by the respondents in May, 1988 and the possession of the same was not delivered to them by the appellant till November, 1992 and on 7th November, 1992 the respondents got served a legal notice on the appellant. The respondents thereafter visited the site also for the purpose of taking over possession of the booked space, but as against the booked space they were offered different space with lesser area by the appellant. In the presence of the above facts, there appears to be ample justification in the request of the respondents, made by them for the refund of their amount which was deposited by them with the appellant while booking the space in question. The District Forum was, therefore, fully justified in ordering for the refund of the amount paid by the respondents.

16. The District Forum, vide impugned order, has awarded interest at the rate of 18% per annum. The award of interest at the above rate is decidedly on the higher side in view of the prevailing conditions, where even the bank rates have been considerably reduced. In our opinion, if the rate of interest is reduced from 18% to 12%, the same would meet the ends of justice. The order of the District Forum, being impugned in the present proceedings, deserves to be modified to the above extent.

17. In view of the above discussion, the present appeal, filed by the appellant, is partly allowed and it is directed that the appellant to pay to the respondents the amount of Rs. 52,000/-, as ordered by the District Forum vide impugned order, together with interest at the rate of 12% per annum from the date of deposit till realization together with cost of litigation amounting to Rs. 1,000/-. It is directed that the above amount be paid to the respondents by the appellant within 45 days from the date of this order, failing which the respondents would be at liberty to file an application under Section 25/27 of the Act as the respondents may be advised, for the implementation of the orders of the District Forum, as modified by this Commission.

The above mentioned appeal, filed by the appellant, stands disposed of in above terms.

Appeal partly allowed.