VATIKA LIMITED Vs. RAJNEESH AGGARWAL

JUDGEMENT

(1.) This revision petition has been filed by the petitioner/opposite party against the order dated 9.10.2012 passed by the State Consumer Disputes Redressal Commission, Haryana, Panchkula in First Appeal No.1502/2010 whereby the State Commission upheld the order dated 17.9.2010 passed by the District Consumer Disputes Redressal Forum, Gurgaon in consumer complaint No.323 of 2009 and dismissed the appeal filed by the petitioner. By its order in question, the District Forum had allowed the complaint of the respondent/complainant and granted following reliefs: -

(2.) BRIEFLY stated, the complainant had purchased flat No.63/2, Emilia -2 in Vatika City, Sohna Road, Gurgaon and had paid total consideration of Rs.28,35,190/ -. As per clause 11.4 of Buyer's Agreement dated February, 2004, the possession of the flat was to be given in 3 years' time, i.e., by February 2007. However, the possession of the flat was actually given on 27.10.2008, i.e., after the delay of 1 year and 8 months. In terms of the conditions incorporated in the Buyer's Agreement, it was stated that the opposite party/petitioner was to pay Rs. 5/ - per sq.ft. per month to the complainant/respondent as penalty for delay in handing over the possession of the flat which worked out to be Rs.1,95,540/ -. In the meanwhile, the complainant/respondent had also deposited Rs.3,88,919/ - as registration amount of the flat on 21.10.2008 but the registration of the flat was got done on 13.2.2009 by the opposite party and, therefore, the opposite party /petitioner had utilised the funds of the complainant amounting to Rs.3,88,919/ - for 3 and a half month for which the OP was liable to pay interest @ 18% p.a., i.e., Rs17,500/ -. The possession of the flat was taken on 27.10.2008 subject to completion of certain unfinished work in the complainant's flat. Thus, alleging deficiency in service on the part of the opposite party/petitioner, the respondent/complainant filed a consumer complaint before the District Forum.

(3.) LEARNED Shri S.K. Sahni, Advocate has appeared for the petitioner and the respondent has chosen to present his case himself. Learned counsel for the petitioner submitted that the Fora below have failed to appreciate that even though clause 11.4 provided for compensation for delay, the same had to be read with provisions of clauses 11.1., 11.2, 11.3 and 39 which laid down various eventualities which could delay the construction of the apartment in question and for which the petitioner company was entitled for extension in the aforesaid tentative period of completion of 3 years. He submitted that the complainant was kept informed about the likely delay in the completion of the construction work on account of reasons beyond the control of the petitioner and as such the petitioner could not be held liable to pay compensation for the same. Besides this, the contention raised by learned counsel was that the apartment in question was initially allotted to one H. Vikram (HUF) vide agreement dated 9.3.2004 but in August 2004, aforesaid allottee approached the petitioner company for reallotment /assignment of the apartment in favour of one Shri Inderjeet Garg and the same request was allowed by the petitioner company. Thereafter again in April 2006, said reallottee Shri Inderjeet Garg approached the petitioner company for further reallotment/reassignment of the said apartment in favour of the respondent/complainant which request was accepted upon acceptance of the terms and conditions of the said reallotmemt/reassignment and the agreement by the respondent/complainant. Thus, the respondent is a second reallottee of the original allotment, more than 2 years later. In view of this, learned counsel submitted that the respondent is not a consumer being a reallottee and for that matter the second reallottee keeping in view the law laid down by the Apex Court in the case of H.U.D.A Vs. Raje Ram, 2009 1 CPJ 56) decided on 23.10.2008. Thus learned counsel submitted that the respondent/complainant is neither entitled to any relief for the so -called delay in terms of the provisions of the original agreement to which the respondent had become a party having accepted its conditions on assignment of the flat consequent upon reallotment in his favour and also the complaint itself is not maintainable in terms of the ratio laid down by the Apex Court in Raje Ram's case . He, therefore, strongly pleaded for allowing the revision petition and setting aside the impugned order of the Fora below.