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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