Time is not the essence of the contract in construction contracts unless specified. No entitlement to interest or compensation if possession is accepted without protest. GDA not negligent in providing service. No breach of contract due to delayed performance accepted by the petitioner. No entitlement to interest due to appreciation in value.

ORDER :

Ashok Bhan, President

Petitioner, who was the complainant before the District Consumer Disputes Redressal Forum, Ghaziabad, Uttar Pradesh (herein referred to as ‘the District Forum’ for short), has filed the present Revision Petition.

2. Briefly stated, the facts of the case are:

Petitioner/complainant applied for a flat on 27.2.1988 under Kaushambi Apartment Scheme, 1988 of the respondent-Ghaziabad Development Authority (hereinafter referred to as ‘GDA’ for short) and deposited Registration Fee of Rs. 60,000. GDA sent Reservation Letter in favour of the petitioner along with payment schedule. Petitioner paid the balance amount of Rs. 5,40,000 as per the payment schedule sent by the GDA. It was alleged in the Complaint that as per the Brochure, GDA had to deliver possession of the flat upto 31.7.1990. On 6.11.1993, GDA informed the petitioner that the cost of the flat has been increased by Rs. 57,000 and asked the petitioner to deposit additional amount of Rs. 57,000 along with Rs. 6,470 towards lease rent and Rs. 3,600 as service charges on or before 30.11.1993. The possession was to be given upto 15.12.1993. Petitioner, after depositing the sum of Rs. 57,000, took delivery of possession on 20.12.1993. Alleging deficiency on the part of the GDA in not delivering the possession within the stipulated time, the complaint was filed seeking interest @ 18% p.a. on the deposited amount for the delayed period. Rs. 5,000 were demanded by way of rent in addition to compensation and litigation expenses, etc.

3. GDA, in its written statement, admitted that the petitioner had applied for a flat in Kaushambi Appartment Scheme, 1988. The deposit of sum of Rs. 6,00,000 was also admitted. Stand taken by the GDA was that the period of 2 years promised for the delivery of possession was on estimate basis. Similarly, cost of Rs. 6,00,000 was also fixed on estimate basis. Due to escalation of cost of construction, the petitioner was asked to deposit an additional sum of Rs. 57,000. It was stated that the petitioner was not entitled to any relief as he had taken the possession of the flat after being satisfied.

4. District Forum came to the conclusion that possession was to be handed over to the petitioner within 2 years and, since, the possession of the flat was handed over after a delay of more than 3 years, there was deficiency in providing the service and, accordingly, directed the GDA to pay interest @ 18% p.a. for the period from 1.8.1990 to 20.12.1993 on the deposited amount within two months. GDA was also directed to pay a sum of Rs. 2,000 towards compensation for mental agony and expenses of case.

5. Being aggrieved, GDA filed an Appeal before the State Consumer Disputes Redressal Commission, Lucknow, and Uttar Pradesh (hereinafter referred to as ‘the State Commission’ for short. State Commission, by the impugned Order, set aside the Order passed by the District Forum and held that since the petitioner had taken possession of the flat without raising any objection, he is not entitled to any relief. Accordingly, the Appeal was allowed and complaint was ordered to be dismissed.

6. Being aggrieved by the Order passed by the State Commission, petitioner has filed the present Revision Petition.

7. Counsel for the parties have been heard at length.

8. Learned Counsel for the petitioner contends that the State Commission has erred in reversing the well-considered Order passed by the District Forum. According to him, GDA was deficient in service in not delivering the possession within the stipulated period of 2 years. That the petitioner was entitled to get interest on the deposited amount for delayed delivery of possession of the flat.

9. As against this, learned Counsel appearing for the respondent/GDA contends that as per the Brochure, time was not the essence of the contract. Clause 16 of the Brochure stated that the construction shall be completed within 2 years from the date of reservation of the flat. No definite period was prescribed for del