Kusum Agarwal . vs M/S. Harsha Associates Pvt. Ltd.

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)

JUDGMENT

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 Signature Not Verified Digitally signed by MEENAKSHI KOHLI

for one shop in the Complex which was offered to them by the Date: 2017.10.12 16:16:18 IST Reason:

respondent for a total consideration of Rs.4,80,000/-. Pursuant to 2

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 3

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, 4

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 5

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