M/S. Madan Builders Through Mr. V.K Madan, Managing Partners v. R.K Saxena .

Ashok Bhan J., President:— Madan Builders-appellant (hereinafter referred to as ‘the appellant’ for short) has filed this appeal against the Final Judgment and Order dated 25.08.2004 passed by the State Consumer Disputes Redressal Commission, New Delhi (hereinafter referred to as ‘the State Commission’ for short) in Complaint Case No. C-288 of 1999 whereunder the State Commission has accepted the complaint filed by the respondent-complainant (hereinafter referred to as ‘the respondent’ for short) and has directed the appellant to refund the amount deposited by the respondent towards the price of the shop, i.e, Rs. 2,27,852/- together with interest @ 12% p.a A sum of Rs. 25,000/- has been awarded towards compensation for harassment and mental agony suffered by the respondent. The sum of Rs. 25,000/- included the cost of litigation as well.

Appellant issued a Press Advertisement in April, 1989 regarding the construction of a business complex at Gurgaon. In the brochure and in the publicity material, the appellant had held many promises to prospective buyers in order to allure them to buy the shops. A few of them are mentioned hereunder:—

“That a 6 storey complex in the heart of Gurgaon, the proposed National Capital Region, only 15 minutes away from PALAM AIRPORT with excellent business prospects is to be built/constructed and developed by them, i.e, Madan Builders-the respondent.

“They had further mentioned and promised in the said PAMPHLET/BROCHURE to provide the various facilities and amenities out of which the following attracted the interest/attention of the complainant.

• 2 floor Office complex;

• 10 spacious entrance lobbies;

• 6 staircases;

• 2 glass capsule lifts;

• 400 vehicle parking space;

• 24 hours water & electricity supply;

• 25 KVA generator for all shops, offices and godowns;

• Telephone pint.

After going through the advertisement and personal discussions, the respondent booked two shops in joint names of himself and his wife being shop Nos. G-50 and 51 on the first floor of the complex known as “Laxmi Bazar” which was being constructed by the appellant. Respondent paid 95% of the price of the shops, i.e, Rs. 2,27,852/- in installments upto the period January, 1992. On the further demand being raised by the appellant for the remaining balance amount of 5% towards the cost of the shop, the same was not paid by the respondent as the shopping complex was still incomplete, in as much as, the amenities promised at the time of booking and as reflected in the brochure such as glass capsule lifts and 24 KVA standby generator had not been provided. Apart from this, the shops which were originally allotted to the respondent were unilaterally and arbitrarily sold to Mr. Ved Arya and Mr. Rajesh Gupta and instead the respondent was allotted two other shops bearing Nos. G-38 and 39. The respondent thereafter filed a complaint for the deficiency in service and the unfair trade practice and prayed that he be awarded Rs. 11,33,095.10 as per details contained in para 19 of the complaint together with interest @ 18% p.a from the date of filing of the complaint till its actual payment.

After service, the appellant filed its reply. A preliminary objection was taken that the complaint was not maintainable for non-jointer of necessary party as the shops in question were booked in the joint names of the complainant and his wife whereas the complainant had been filed only by the complainant. The other objection taken was that the complaint is barred by limitation as the same had been filed beyond a period of two years and as such was not maintainable. On merit, the stand taken by the appellant was that there is no change in the location of shops originally allotted to the respondent as the same shop Nos. G-50 and 51 had been renumbered as G-38 and 39 on account of revision of building plan. Due to inadvertent clerical error repeated in the letters dated 19.12.1995 and 17.02.1996, wrong numbers of the shops have been mentioned. As regards the non-installation of the lifts in the complex, it was stated that no assurance was given to the allottees that the lift facility would be provided for the ground or the first floor as the same was meant only for the upper stories. Further, only one lift had been installed at present on account of the fact that occupancy was less than 50%. It was also stated that the glass capsule lifts could not be provided as the same was not approved by the local administration. Regarding non-provision of 24 KVA standby generator in the complex as well as parking space for 400 vehicles, it was stated that 24 KVA generator had already been provided and ample parking space for more than 1000 vehicles was available around the complex in the open. On these pleadings, parties led their evidence.

After going through the evidence and after taking into consideration, the submissions made by the learned Counsel, the State Commission took the view that the preliminary objections taken by the appellant were not sustainable as the complaint had been filed by the respondent on his behalf as well as on behalf of his wife. As regards objection regarding limitation, it was held that the same was devoid of any merit as the complex in question was still incomplete for handing over possession. That the cause of action was still continuing and the complaint filed by the respondent was not barred by limitation. On merits, it was held that there was deficiency of service on the part of the appellant. On merits it was held as under:—

“On merits of the case it is evident from the record that the OP at the time of booking pointed a very rosy picture so as to lure gullible persons to invest their hard earned money in the project in question, to be constructed by the OP. However the representations so made were not fulfilled, as it is an admitted fact by the OP that instead of two lifts only one lift has been provided and that too a non glass capsule lift. The contention of the OP in this regard is that there is only 50% occupancy of the complex and as such second lift is not required and also that the said facility is not available to the ground and first floor. The said argument on the very face of it appears to be agreement (copy of which is placed on record) that the lifts would be installed depending on the percentage of occupancy in the building or that the said amenity is not meant for the occupants of the first floor. Even as regards the question of parking space is concerned the OP is not absolved of its responsibility to provide safe and adequate parking inside the complex merely by stating the parking space is available in the open, around the complex. In fact proper and safe parking space is an important consideration for booking space in any project and not providing the said facility after representing and promising to make provision for the same definitely amounts to deficiency in service on the part of the OP. Furthermore, the OP has also changed the location of shops originally allotted to the complainant from shop No. G-50 & 51 to G-38 & 39 without the consent and approval of the complainant and has allotted the same to third persons which fact is not denied in his affidavit by Sh. V.K Madan, proprietor of the OP. The said act of the OP amounts to unfair trade practice and in the circumstances the complainant is justified in refusing to take alternate shops allotted to him and seeking refund of the amount deposited by him together with interest and compensation.”

Going by the representation made by the appellant, respondent purchased two shops and paid a sum of Rs. 2,27,852/- in installments upto the period January, 1992. The appellant failed to fulfill the representations made in the advertisement as well as in the brochure. The appellant instead of providing two lifts provided only one lift and that too was not a glass capsule lift. The appellant has taken the stand that glass capsule lift could not be provided, as the same was not approved by the local administration. We fail to understand as to how could the appellant hold out a promise that he would provide glass capsule lifts without getting a prior sanction from the local administration. It was, thus, a false representation, which lured the respondent to make the investment. The contention of the appellant that as the occupancy of the complex was only 50% and that the said facility was not available for the ground and first floor are also clearly untenable. It is neither reflected in the brochure nor in the terms of agreement that the lifts would be installed depending on the percentage of occupancy in the building or that the said amenity is not meant for the occupants of the first floor. The submission is devoid of any force and is an afterthought.

The respondent had booked shop Nos. G-50 and 51 which were changed by the appellant to G-38 and 39 without his consent and were allotted to Ved Arya and Rajesh Gupta. The allegation that the shops were unilaterally and arbitrarily changed and sold to the third parties has not been denied by Mr. V.K Madan, proprietor of the appellant, in his affidavit. There was deficiency in service as the appellant failed to provide the facilities promised in the representation made as per the advertisement and brochure. The changing of shops originally allotted to the complainant from shop Nos. 50 and 51 to No. 38 and 39 was certainly an unfair trade practice. Respondent, in the above circumstances, was justified in declining to take alternate shops allotted to him and seeking refund of the amount deposited by him along with interest and compensation.

For the reasons stated above, the Order passed by the State Commission being just and fair, calls for no interference. Accordingly the appeal is dismissed. No Costs.