National consumer disputes redressalcommission new delhi



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ORDER 


JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

1.         By this order, we propose to decide the above noted cross petitions arising out of the same order. 

2.         Briefly stated, the facts relevant for the disposal of the above revision  petitions  are  that Alok Garg, petitioner in RP No.2320 of 2013 ( in short, ‘the Complainant’) filed a consumer complaint before the District Forum Ghaziabad alleging that attracted by the advertisement of Shipra Sun City, a joint venture project undertaken by the opposite parties, the complainant applied for a ground floor facing wide road vide application no. 13093 dated 24.12.2000.  Alongwith the application, the complainant paid Rs.40,000/- by cheque which was accepted by the opposite parties.  That pursuant to the application, the opposite parties issued allotment letter dated 13.02.2001 mentioning that flat no.534-A Regent Ground Floor, Shipra Sun CityIndirapuram was allotted to the complainant.  The schedule of payment for the said flat was annexed to the letter dated 13.02.2001.  On receipt of allotment letter, the petitioner visited the site and found that flat no.534-A was not facing the wide road but it was facing the service lane.  The petitioner being aggrieved lodged protest with the opposite parties on 24.02.2001 but the opposite parties did not take any action on the request of the complainant to allot him the flat facing wide road.  When the opposite parties failed to rectify the mistake despite of request made on several occasions, the complainant served the opposite parties with legal notice dated 14.03.2011 but the opposite parties did not respond to the notice.  The complainant, however, during the intervening period kept on paying the instalments as per the payment schedule without prejudice to his rights.   This led to the filing of the consumer complaint.

3.         Opposite Parties No.3 & 4 resisted the complaint.  The stand taken by Opposite parties no. 3 & 4 is that the complainant in his application No.13093 dated 24.12.2000 had shown his preference for allotment of a flat facing wide road.  However, the complainant was allotted flat No.534-A (Regent type) which was not facing the wide road.  The complainant, if he was not interested in the allotted flat was at liberty to withdraw from the project but he kept on paying the instalments which means that complainant had accepted the offer of opposite partiesno. 3 & 4 to allot flat no. 534-A.  It is contended that there is no deficiency in service on the part of opposite parties No.3 & 4.

4.         Learned District Forum on consideration of the pleadings and evidence adduced by the parties came to the conclusion that there was no deficiency of service on the part of the opposite parties.  The District Forum, therefore, dismissed the complaint.

5.         Being aggrieved of the order of the District Forum, the complainant preferred an appeal.  State Commission on consideration of the record allowed the appeal and ordered thus:

The aforesaid appeal is allowed.  The impugned order dated 15.04.2011 passed by District Consumer Forum , Ghaziabad is hereby set aside. The complaint filed by the complaint before the District Consumer Forum is hereby allowed.  The respondent/opposite party Shipra Estate Limited is hereby directed to allot to the appellant/complainant a flat which is wide road facing as per their own undertaking endorsed on the application form in lieu of the flat bearing no.534-A Service Lane facing Ground Floor, Shipra Sun City, Indirapuram, Ghaziabad after adjusting the payment made by the complainant in respect of the aforesaid flat.  The respondent/opposite party is further directed to pay an amount of Rs.10,000/- towards mental tension and harassment of the complainant and a sum of Rs.2000/- for legal expenses”.

 

6.         The complainant not being satisfied with the amount of compensation awarded for mental tension and harassment has filed  Revision Petition no. 2320 of 2013 seeking enhancement of compensation.



7.         Opposite Parties No. 3 & 4 being aggrieved of the reversal of the order of the District Forum, have preferred revision petition No.3817 of 2013 seeking setting aside of order of the District Forum.

8.         Mr.Saurabh Suman Sinha, Advocate for the opposite parties no.3 & 4 has contended that the impugned order of the State Commission is liable to be set aside for the reason that it is based on incorrect appreciation of law and facts.  Learned counsel for the opposite parties have contended that application of the complainant was only an offer seeking allotment of flat in the project undertaken by the opposite parties wherein the complainant had shown his preference for flat on ground floor facing wide road.  It is contended that as per the terms and conditions of the allotment, particularly condition no.2, the allotment of flat was absolute discretion of the developer company and the applicant could not claim the flat of his choice.  The opposite parties on consideration of the application of the complainant allotted him flat no.534-A (Regent) which was not facing the wide road. Learned counsel has submitted that if the aforesaid offer of the opposite parties was not acceptable to the complainant, he could have withdrawn from the scheme on the ground that flat of his preference was not allotted to him but the complainant kept on paying the instalments as per the payment schedule, which imply that he had accepted the counter offer of the opposite parties.  Therefore, now the complainant cannot claim that non allotment of flat facing wider road to him amounts to deficiency in service.  Learned counsel for the opposite parties have, therefore urged us to accept the revision petition, set aside the order of the State Commission and dismiss the complaint.

9.         The complainant, on the contrary, has argued in support of the finding of the State Commission holding the developer guilty of deficiency in service and directing the opposite party to allot a flat facing wide road to the complainant.  The complainant, however, has contended that the compensation of Rs.10,000/- awarded for harassment and mental agony is too meagre.  The complainant has contended that State Commission while awarding compensation has failed to appreciate that complainant had booked the flat in the year 2000 and he has paid the instalments pertaining the consideration amount as per the agreed schedule. Despite that he has not been given possession of the flat facing wide road till date.  It is contended that the State Commission has failed to appreciate that because of wrongful act of the opposite parties, the complainant has been forced into a protracted litigation and that the complainant has  been deprived the right of use of flat applied for or its rental value.  For the said loss of rental value as also the mental agony and harassment suffered due to protracted litigation, compensation of Rs.10,000/- awarded by the State Commission is too meagre.  Thus the complainant has urged us to enhance the compensation awarded by the State Commission.

10.       We have considered the rival contentions.  On perusal of record, we find merit in the contention of learned counsel for the opposite parties.  Both the complainant  as well as opposite parties no. 3 & 4 have placed on record the copy of application form for allotment of flat submitted by the complainant.  On perusal of this application form , it is seen that it was submitted alongwith booking amount of Rs.40,000/- on 24.12.2000.  At the top of the application form, there is an endorsement (regent-two years ground floor, wide road).  At the end of the application form, there is a declaration signed by the complainant which reads as under:

1.        I/We declare that I/We have read the rules of the above Scheme and shall abide by them.


2.         If I/We do not accept the allotment of the flat allotted to me, then I/We shall accept the forfeiture/deductions made by GDA and Shipra Estate (P) Ltd. under the rules.

3.         The flat allotted tome by GDA &Shipra Estate (P) Ld. shall be acceptable to me/us under any circumstances on as is where is basis and I/We shall have no objection or dispute of any kind”.

 

11.       On conjoint reading of the above noted endorsement at the top of application form and declaration, it is clear that the complainant by submitting the application has given an offer seeking allotment of a flat subject to the terms and conditions of the opposite parties and in the said offer he had expressed his preference for a ground floor flat facing wide road.


12.       On perusal of the terms and conditions of allotment of flat, particularly condition n o.2, we find that as per the terms and conditions, the allotment of flat was in the absolute discretion of the developer company and the applicant could not claim flat of his choice.  Thus, it is evident that while applying for the flat it was clear to the complainant that he may not get the flat of his choice.

13.       It is admitted case of the parties that pursuant to the application of the complainant dated 25.12.2000, allotment letter dated 13.02.2001 was issued to the complainant wherein number of the flat allotted to him was disclosed as 534-A Regent.  It is also admitted case of the complainant that on receipt of the allotment letter, he visited the construction site where he found that flat no.534-A was not facing wide road but it was facing the service road.  If the complainant was interested only in a flat facing wide road, he on receipt of allotment letter, which can be termed as a counter offer by the opposite parties, should have rejected the counter offer and asked for the refund of his money.  The complainant instead of withdrawing from the scheme kept on paying the instalments as per the payment schedule which means that the counter offer of the opposite parties to allot flat no.534-A to the complainant was accepted by him.  Further, it is seen from the record that on receipt of the allotment letter, the complainant wrote to the opposite parties requesting for issue of No-objection-certificate for obtaining loan from the bank.  The contents of the letter are reproduced as under:

Sir,


I am taking loan to pay govt. instalments from bank (SBI Noide Sector 2). Kindly issue No-objection-certificate to take loan against flat no.534-A which was allotted vide your allotment letter no.002560 dt.13.02.2002.

 

14.       Above conduct of the complainant clearly shows that the complainant had actually accepted the allotment of flat no.534-A allotted vide letter dated 13.02.200,  otherwise there was no occasion for him to seek N.O.C for obtaining loan against the aforesaid flat.


15.       From the above, it is clear that the parties had entered into a contract for allotment of delivery of possession of flat no.534-A Regent  (Shipra Sun City) to the complainant on the complainant making payment of the consideration amount.  That being the case, the failure of the opposite parties to allot a flat facing wide road to the complainant cannot be termed as deficiency in service particularly when the possession of allotted flat no. 534-A was admittedly offered to the complainant in the year 2002.  The State Commission while allowing the appeal has failed to take note of the above said salient facts.  Therefore, the said order cannot be sustained.  Learned counsel for opposite parties no.3 & 4 has stated that flat no.534-A which was allotted to the complainant is still lying unoccupied and the opposite parties are ready and willing to give possession of the said flat to the complainant in terms of the contract and execute the conveyance deed in favour of the complainant on the complainant taking necessary steps for the same.

16.       In view of the discussion above and offer made by learned counsel for opposite parties no. 3 & 4, the Revision Petition No. 3817 of 2013 filed by opposite parties no. 3 & 4 is accepted.  The impugned order of the State Commission is set aside and it is directed that opposite parties no. 3 & 4 shall be bound by the above noted offer given by their counsel.  In view of the above findings in RP No. 3817 of 2013, the Revision Petition No.2320 of 2013 filed by the complainant is dismissed.  The revision petitions are disposed of accordingly.

 

………………………….



(AJIT BHARIHOKE, J)

(PRESIDING MEMBER)

………………………….



(REKHA GUPTA)

(MEMBER)

Am       





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