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NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 16814/2017
(Arising out of SLP©No. 4520 of 2016)
Kusum Agarwal & Anr. …. Appellant(s)
Vs.
M/s Harsha Associates Pvt. Ltd. ….Respondent(s)
J U D G M E N T
Deepak Gupta, J.
Leave granted.
2. The respondent was building an office complex and issued an
advertisement “Commercial space in Harsha Commercial Complex”
to be constructed on Plot No.1, Local Shopping Centre, Gazipur,
Delhi. The appellants who are the husband and wife jointly applied
for one shop in the Complex which was offered to them by the
respondent for a total consideration of Rs.4,80,000/-. Pursuant to
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this, an agreement was entered into between the parties on
25.01.2004, whereby one shop was agreed to be sold to the
appellants for a total consideration of Rs.4,80,000/- to be paid in
installments.
3. On 06.12.2004, the respondent wrote a letter to appellant no.1
informing her that the shop is ready, requested the appellants to
pay the balance amount of Rs.2,75,000/- and maintenance charges
etc., i.e. a total amount of Rs.3,16,930.96/-on or before
15.12.2004. According to the appellants, though they were ready to
pay this amount the shop was not handed over to them. The
appellants sent a letter to the respondent on 19.04.2005 informing
the respondent that Rs.2,05,000/- had already been paid and they
are ready to take possession of the shop and pay the balance
amount. Since possession of the shop was not delivered, the
appellants filed a complaint before the District Consumer Disputes
Redressal Forum, Delhi (for short ‘District Forum’). Defence taken
by the respondent was that the appellants were not ready and
willing to pay the balance amount and, therefore, their amount had
been forfeited. The District Forum directed the respondent to
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handover the possession of the shop to the appellants on payment
of the balance amount of Rs.2,45,000/- with interest @18% per
annum from 28.03.2004 till the date of delivery of the possession
along with other sundry charges. Thereafter, the appellants issued
cheques for these amounts but the possession of shop was not
delivered.
4. The respondent filed an appeal before the State Consumer
Disputes Redressal Commission, New Delhi (for short ‘the State
Commission’) and during the course of appeal it was disclosed by
the respondent for the first time that the shop in question had
already been sold prior to December, 2004 when letter was written
to the appellants. The State Commission noticed that
Rs.1,95,000/- had been paid earlier and Rs.10,000/- had been paid
later and, therefore, directed the repayment of this amount within a
period of one month. No interest was awarded and the appellants,
therefore, filed revision petition before the National Consumer
Disputes Redressal Commission, New Delhi (for short ‘the National
Commission’). The National Commission did not decide the matter
on merits but held that the space was a commercial space and,
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therefore, the appellants were not consumers and dismissed the
petition.
5. At the outset, we may notice that this was not a defence raised
by the respondent either before the District Forum or before the
State Commission. In fact, the respondent had not even challenged
the order of the State Commission. In our view, the National
Commission, in a revision petition filed by the complainant praying
for increase of compensation and payment of interest, could not
have dismissed the petition itself. We, therefore, set aside the order
of the National Commission.
6. As far as the merits are concerned, the conduct of the
respondent clearly shows that he had not come to court with clean
hands. In fact, in December, 2004 when a letter was written to the
appellants offering them the commercial space in question, the
same had already been sold to someone else. It would also be
pertinent to mention that before the District Forum statement had
been made by the counsel for the respondent that the shop in
question was lying vacant and, therefore, the District Forum had
passed the directions mentioned hereinabove. Later, it was stated
that this statement had wrongly been made by the counsel due to
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mis-communication. The fact remains that the shop booked by the
appellants was sold to another customer on 04.11.2004, even
before the letter dated 06.12.2004 was sent to the appellants. It is,
therefore, a clear-cut case of deficiency in service by the
respondent.
7. In view of the above, the appeal is allowed. Judgment of the
National Commission is set aside and the respondent is directed to
refund the amount of Rs.2,05,000/- , along with damages of
Rs.50,000/-, i.e., Rs,2,55,000/- in all along with interest @18% per
annum payable from 06.12.2004 till payment of the entire amount.
8. The appeal is disposed of in the above terms.
………………………….J.
(Madan B. Lokur)
………………………….J.
(S. Abdul Nazeer)
..………………………..J.
(Deepak Gupta)
New Delhi
October 12, 2017
