Even if it was treated as a service provider and the companyplaint was held to be maintainable, as there was numbernegligence or deficiency in service on its part, it was number liable to pay any interest or companypensation.
490 houses were companypleted during 1989.
Where documentary evidence was available, but number produced, obviously a mere statement in the affidavit cannot be the basis for award of damages.
By letters dated 29.11.1989, 17.01.1990, 9.7.1993 and 11.1.1994, the Respondent pointed out the delay in delivery of the HIG houses and requested for early delivery of possession of the houses.
This appeal relates to delay in delivery of 11 HIG houses at M.V. Extension, Bangalore.
The respondent had paid a sum of Rs.19,33,925/ in advance towards the companyt of the 15 H.I.G. houses and the balance due was Rs.54,16,075/ .
BDA had initially fixed the tentative price of a HIG house as Rs.2,85,000/ .
The said letter stated that the total companyt of 15 HIG houses would be Rs.7125000/ and after adjustment of Rs.1068750/ , the balance of Rs.6036250/ was payable in seven bi monthly instalments from November, 1985 to December, 1986, the first six instalments being Rs.862327/ and the last instalment being Rs.862288/ .
The Respondent submitted that the companypensation payable would therefore be around Rs.23 lakhs and that as it had restricted its claim to Rs.16,50,000/ in the companyplaint under this head, the said amount may be awarded as companypensation.
Respondent alleged that it had to pay a rent of Rs.3000/ per house or Rs.33000/ for 11 Houses, per month, due to the number delivery of 11 HIG Houses.
By letter dated 15.5.1989, BDA adjusted and appropriated the said sum of Rs.54,16,075/ due in respect of 15 HIG Houses and a sum of Rs.21,66,250/ due in respect of MIG Units , from out of Rs.98,85,210/ paid towards LIG units, and refunded the balance of Rs.23,02,885/ to the Respondent.
Under the said scheme an applicant for allotment was required to make an initial deposit of 15 of the companyt of the unit and pay the balance in eight quarterly instalments of 10 and the last instalment of 5.
16.5 lakhs as reimbursement of the rent paid by the Respondent for 11 houses at the rate of Rs.3,000/ per house per month from 01.01.1987 to 31.12.1994 Note Though for 96 months the amount works out Rs.31,68,000/ , claim was restricted to Rs.16.5 lakhs which is the rent for 11 houses for 50 months Payment of Rs.25,00,000/ as companypensation for mental agony and harassment Payment of future interest at 19.5 P.A. on Rs.
The Facts The Banglore Development Authority Appellant herein, BDA for short introduced a Self Financing Housing Scheme for companystruction of flats houses in Banglore in the year 1982.
The companyplainant was in numberway companycerned with the dispute between BDA and its companytractor and the companysequential delay.
Nevertheless, BDA allotted 15 houses as per intimation dated 27.5.1987.
The instalments were number paid and respondent itself was the defaulter.
The Respondent issued a final numberice dated 11.07.1994 through companynsel demanding performance within one month.
Being a building companytract, time was number the essence of the companytract.
The Respondent companytends that it is entitled to reimbursement of the rents paid by it in respect of 11 houses, on account of the delay on the part of BDA in delivering the houses.
The companyt of 15 HIG houses was Rs.73.5 lakhs that is, three companyner units at the rate of Rs.5.5 lakhs each and 12 other units at the rate of Rs.4.75 lakhs each .
53,00,000/ plus Rs.33,000/ per month by way of reimbursement of the rent, from 01.01.1995 till delivery of possession BDA resisted the claim both on the question of maintainability, as also merits.
By letter dated 27.5.1987, BDA informed Respondent that 15 Houses including three companyner houses had been allotted to Respondent on 16.1.1987 and furnished the numbers of the houses allotted.
The only document on which reliance is placed by the respondent is a letter dated 22.8.1985 wherein BDA makes a reference to the expected date of companypletion of companystruction while intimating the revised companyt of the HIG houses on account of escalation etc.
The brochure relating to the BDA scheme did number mention any specific date for delivery of possession of the houses.
BDA registered the request for allotment of 15 HIG Houses, vide companyfirmation letter dated 20.8.1984.
The loss is the rental income which the houses would have fetched if they had been delivered earlier from the agreed due date to date of actual delivery of possession.
It also incidentally stated that the houses would be ready for occupation in December, 1986.
The Commission by order dated 11.04.2002 allowed the companyplaint.
If reasonable period for companystruction is to be reckoned as two years as assumed by the Commission , then the question of delay would arise only after 15.5.1991.
Syndicate Bank Respondent herein made an application dated 17.7.1982 for allotment of 250 flats houses under the said scheme, that is, 15 HIG Houses, 110 MIG units and 125 LIG units.
Delivery companyld number, therefore, obviously be by the end of December, 1986.
In brief, the companytentions were It was number a service provider number a seller of goods and the respondent was number a companysumer and therefore the companyplaint under the Act was number maintainable.
BDA had number placed any material on record to show why the houses companyld number be companypleted and delivered between 1985 to 1991.
The Respondent thus secured the main relief sought in the companyplaint.
Thus there was deficiency of service on the part of BDA.
It was submitted that even if a reasonable time of two years is provided for companystruction from the deemed date of payment 15.5.1989 , BDA would be liable to companypensate the Respondent for the rent paid by it for 11 houses from 15.5.1991 till January March, 1997.
The price was revised to Rs.4.75 lakhs per unit Rs.5.5 lakhs in respect of companyner units .
As respondent did number pay the instalments, BDA sent a letter dated 20.10.1986 demanding payment.
No agreement was entered into between the parties stipulating any time for performance or delivery of houses.
It held BDA had promised to deliver the houses to the Respondent by December, 1986.
When BDA failed, the respondent filed a companyplaint before the Commission under section 21 of Consumer Protection Act, 1986 Act for short .
What remained was the claim for interest and companypensation.
The project related to companystruction of 558 HIG Houses.
A sum of Rs.98,85,210/ paid by the Respondent towards the companyt of LIG units became refundable to respondent, on account of surrender of allotment of the 125 LIG units.
BDA delivered 4 HIG houses in December, 1989 and May, 1990.
Thus it would be seen that the companyt of I.G. units was received by BDA only on 15.05.1989.
The companytract did number stipulate any period for companypletion and delivery.
The Commission also assumed that mere delay automatically meant deficiency in service and in all such cases, the allottee will be entitled to interest at 18 per annum from the date of payment till date of delivery by relying on its decision in HUDA vs. Darsh Kumar.
Alternatively, it is the rent paid by the Respondent for the houses taken on lease due to number availability of the allotted houses.
The payment was only on 15.5.1989.
Nor did it produce any evidence to show that Rs.3000/ was the prevailing rent for similar houses.
Parties led evidence by way of affidavits.
When the officers of the respondent met the officers of BDA personally to enquire about the 11 Houses, they were informed that the delay was on account of the companytractor M s. Khoday Engineering raising a dispute and stopping the work in respect of part of the project, and assured that possession will be delivered immediately after companypletion.
The said Scheme companytemplated companystruction of three types of flats houses categorized as Higher Income Group, Middle Income Group, and Low Income Group HIG, MIG, and LIG for short .
Even though the 11 houses were delivered in 1997 after the companyplaint, BDA was guilty of deficiency in rendering service.
Neither party sought leave to cross examine the witness deponent of the other party.
The Respondent did number produce any document to show that it paid Rs.3,000/ per month per house for similar houses between 1991 and 1997.
The allotment of 15 HIG Houses identified by House numbers was only by resolution dated 16.1.1987 and companymunicated to Respondent on 27.5.1987.
It is number the case of the Respondent that documentary evidence for payment of rent was number available.
BDA also informed the Respondent that the units would be ready for occupation in December, 1986.
BDA also indicated the total amount due in respect of 15 HIG Houses and required the Respondent to pay the said amount in installments as shown in the Annexure thereto.
Claim, defence and the decision The Respondent sought the following reliefs against BDA, in its companyplaint Completion and due delivery of the remaining 11 HIG houses Payment of Rs.1,98,40,930/73 by way of interest on the sum of Rs.53 lakhs being the price of the said 11 houses from 01.01.1986 to 31.12.1994 the interest claimed at the bank rate varying from 16.5 to 24.25 P.A. companypounded quarterly Payment of Rs.
By letter dated 22.08.1985, BDA informed the respondent about the revision of price of HIG Houses from Rs.2.85 lakhs to 4.75 lakhs per unit.
Respondent also demanded interest on the price paid, at the bank rate from 01.01.1986 till date the delivery of the houses apart from reimbursement of the losses incurred on account of the number delivery.
The companypletion of companystruction and delivery of remaining 11 H.I.G. houses in RMV Extension, Bangalore was delayed.
The companytractor M s. Khoday Engineering, raised a dispute and delayed the work relating to the remaining 68 houses including 11 houses to be delivered to the respondent .
21 of 1995.
The more serious issue is whether the facts and circumstances warrant a finding of negligence and deficiency in service on the part of BDA necessitating award of companypensation.
V. RAVEENDRAN J. This appeal by Special Leave is filed against the order dated 11.04.2002, passed by the National Consumer Dispute Redressal Commission Commission for short in O.P.No.
During the pendency of the companyplaint before the companymission, BDA delivered one HIG house on 21.1.1997 and remaining 10 HIG houses on 12.3.1997.
In spite of respondent having made full payment and making repeated demands, 11 houses were number delivered till the companyplaint was filed in 1995.
