State Consumer Disputes Redressal Commission
Mohd Aslam vs Jitendra Singh Bajwa on 13 July, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/506/2017 ( Date of Filing : 11 Dec 2017 ) 1. Mohd Aslam Shamli ...........Complainant(s) Versus 1. Jitendra Singh Bajwa Meerut ............Opp.Party(s) BEFORE: HON'ABLE MR. JUSTICE PRESIDENT PRESIDENT HON'BLE MR. Rajendra Singh JUDICIAL MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 13 Jul 2022 Final Order / Judgement RESERVED STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTAR PRADESH, LUCKNOW COMPLAINT NO. 506 OF 2017 Mohd. Aslam S/o Shri Jahoor Hasan R/o Village Badhipura Post Gogwan, Block Kairana District Shamli ....Complainant Versus Jitendra Singh Bajwa S/o Sri Gurbachan Singh R/o A-151, Defense Colony Director, Golden Heights Green Wood City Sri Jitendra Singh Bajwa S/o Sri Gurbachan Singh R/o Rampur Pawati Tehsil and District Meerut ....Opposite Parties BEFORE: HON'BLE MR. RAJENDRA SINGH, PRESIDING MEMBER
HON'BLE MR. VIKAS SAXENA, MEMBER For the Complainant : Sri Katyayam Mishra, Advocate.
For the Opposite Party : Sri V S Bisaria, Advocate. Dated : 29-08-2022 JUDGMENT PER MR. VIKAS SAXENA, MEMBER
This is a complaint filed by the complainant Mohd. Aslam under Section 17 of the Consumer Protection Act 1986 against the opposite parties Jitendra Singh Bajwa and another with the following prayers:-
To pay Rs.19,63,000/- paid by the complainant to the opposite party alongwith Rs.5,04,012/- interest incurred on loan paid by the complainant, Rs.1,00,000/- for mental and physical agony and Rs.25,000/- for the cost of litigation which comes to Total Rs.25,92,012/- (Twenty Five lacs ninety two thousand twelve) alongwith 9% compound interest till actual payment is made.
Any other relief which Hon'ble Court may deem fit and proper in the circumstances of the case be passed in favour of the complainant.
Facts of the case stated in brief are that the complainant applied for allotment of a flat in the scheme of residential colony launched by the opposite party in the name of Green Wood City located at near bye pass road Meerut. The opposite party issued an allotment letter dated 05-07-2008 in favour of the complainant. The complainant has executed an agreement on 30-12-2008 with the opposite parties for the purchase of a residential Flat No. F-402 admeasuring area about 1342 square feet situated in Golden Heights, Green Wood City, Village Rampur Pawati, Tehsil and District Meerut.
It is alleged in the complaint that as per the terms and conditions of the agreement dated 30-12-2008 the total cost of the flat in question with finished condition was Rs.18,00,000/- for which Rs.5,25,000/- has been paid to the opposite party as an advance money at the time of execution of the agreement and remaining cost of the flat in question was to be paid within two years as per schedule provided by the opposite party from the date of execution of the agreement. The complainant after depositing Rs.5,25,000/- with the opposite party applied for loan from the Allahabad Bank on which the complainant has paid Rs.5,04,012 as an interest till date.
It is further alleged in the complaint that as against Rs.18,00,000/- the complainant has paid Rs.19,63,000/- to the opposite party but the opposite party has not handed over the possession of the flat in question to the complainant. The complainant has submitted that all the payment has been incurred into the account of the opposite party through bank and by cash for which a receiving has been given by him.
It is alleged by the complainant in his complaint that despite of passing considerable period the possession was not handed over to the complainant and the opposite party has strictly replied that he is not able to provide the flat and when the complainant asked to return his money with interest then he did not give any satisfactory reply.
It has been alleged in the complaint that the complainant has paid total Rs.19,63,000/- to the opposite party till date and he would also pay :3: Rs.5,04,012/- towards the bank interest and also suffering from great mental agony for which the complainant is liable to recover the same from the opposite paprty. The complaint is within the prescribed period as cause of action is subsisting continues as till date the opposite parties neither handed over the possession of the flat in question nor reimburse the money paid by the complainant.
In support of the complaint the following documents have been filed on behalf of the complainant as annexure of the complaint.
01.Copy of the allotment letter dated 05-07-2008 as Annexure No.1.
02.Copy of Agreement dated 30-12-2008 as Annexure No.2.
03.Copy of Statement of Bank and Cash Receipt as Annexure No.3.
04. Copy of order of District Consumer Commission, Meerut dated 27-07-2016 as Annexure No.4.
The opposite parties have contested the case before this Commission and filed their written statement stating therein that the cost of the finished flat was Rs.22,00,000/- excluding stamp duty and other Govt. taxes etc. The agreement was executed between the parties on 30-12-2008 for the purchase of Semi Finished residential Flat No. F-402 at forth floor at the cost of Rs.18,00,000/-.
In the written statement it has been stated by the opposite party that the complainant has paid only Rs.19,63,000/-. The payment of alleged Rs.2,00,000/- made on 20-07-2011 by cash was false and the alleged receipt annexed by the complainant in his complaint was false and fabricated. The opposite parties neither issued the alleged receipt nor issued any such kind of receipt to anybody.
In the written statement the opposite parties have further stated that they have offered the possession to the complainant after completion of the Flat No. F-402 as agreed and demanded the balance amount, etc. but the complainant did not came forward to take the possession for the reason best known to him. The other allotties in the entire building had mostly taken the possession of the their flat and are residing there. The complainant is a defaulter of payment and of taking possession. He is therefore liable to get his amount refunded as per terms and conditions of the brochure.
It has further been stated in the written statement that the cause of :4: action is not subsisting continues after he was asked to take possession of the flat. The complaint is barred by limitation and is liable to be quashed on this point alone.
The additional plea taken by the opposite parties in the written statement is that the complaint was highly time barred under Section 24A of the Consumer Protection Act without accompanying any condonation application. The complaint could be filed within the prescribed period of two years.
In the additional plea the opposite parties have stated that the complainant applied for fully furnished flat having cost of Rs.22,00,000/- but he subsequently asked for Semi Finished Flat for the reason best known to her. The registered agreement was executed between the partie for Semi Finished Flat at the cost of Rs.18,00,000/-. The complainant who was associated with the Member of Parliament Kairana (Muzaffarnagar) made pressure on the opposite parties to handover the possession of the fully furnished flat on the same cost of agreed Semi Furnished Flat and when the opposite parties refused to handover the fully furnished flat on Rs.18,00,000/- he filed a F.I.R. at Kairana Muzaffarnagar. The police investigated and found the case wrong and thereby closed the investigation and submitted its final report. The complainant thereafter filed the complaint before the District Consumer Commission, Meerut but since the Territorial Jurisdiction was barred so the present complaint has been filed before this Commission. The complainant had not came with clean hands before this Commission and tries to play fraud by submitting fake and fabricated payment receipt dated 20-07-2011. The complaint should be dismissed with heavy cost. The complainant is not liable for any relief from this Commission beyond the terms and conditions agreed between the parties.
The complainant has also filed the evidence in the shape of affidavit.
The opposite parties have filed the evidence in the shape of affidavit.
Learned Counsel Mr. Katyayan Mishra appeared for complainant.
Learned Counsel Mr. V S Bisaria appeared for opposite parties.
We have heard learned Counsel for the parties and perused the records.
We have also perused the complaint, written statement and evidence :5: etc. of the parties.
The complainant has claimed that he has deposited a big share of his instalment towards value of the disputed flat on the other hand the opposite party that is the builder has claimed that the complainant did not provided the entire money due in the agreement entered into between the both the parties. In the memo of complaint at paragraph 7, the complainant has given a table of disbursement by him at various dates starting from the date 31 - 03 - 2009 till date 20 - 07 - 2011. The table is given as under: -
31-03-2009 - Rs.2,00,000/- 22-04-2009 - Rs.1,20,000/- 19-05-2009 - Rs.1,60,000/- 18-08-2009 - Rs.1,60,000/- 24-10-2009 - Rs.1,60,000/- 17-12-2009 - Rs.1,60,000/- 02-02-2010 - Rs. 78,000/- 20-07-2011 - Rs.2,00,000/-
Adding the sum of money given in this table and the other amounts paid by him the complainant has asserted that in total he has disbursed Rs. 19,63,000/-. On the other hand the builder has denied the specific disbursement on the date 20 - 07 - 2011 of Rs. Two lakhs, which the complainant has claimed to be disbursed by cash. The main dispute or the parties is regarding this payment by the complainant as claimed by him that this sum has been given by cash but the opposite party has denied this payment. To support the fact of this payment that complainant has submitted a copy of the receipt dated 20 - 07 - 11, which the opposite party has been strongly denied. The main focus of this commission is regarding evidentiary value of this copy of the receipt by which the complainant claims that Rs. 2 lakhs have been given to the builder. On the scrutiny of this receipt it appears that it is carrying no signatures at all. Besides, there is no receipt ticket on this document whereas, Rs. 2 lakhs are claimed to be disbursed by the complainant through this receipt. On face of it, this receipt appears to be doubtful as it is not believable that, a big sum of rupees 2 lakhs can be paid on this receipt, which even doesn't have any payment stamp and bears no signatures on it. The statement of account submitted by the complainant :6: shows every deposit by the complainant claimed to be given by way of instalment to the builder except this payment, which the complainant claims that it is given on a simple typed receipt. All the payments of sums of money are either admitted by the opposite party or clearly shown as a debit in the bank account of the complainant, as the copy of statement of account has been submitted by him, but no description of debit of this sum of money has been shown in the account. Beside it, the complainant failed to show that from where he has disbursed this amount to the opposite party/builder. In this way, no authentic and believable evidence has been given by the complainant for disbursement of this sum of money Rs. 2 lakhs on the date 20 - 07 - 2011. Therefore, a sum of money rupees are proved to be given by the complainant to the opposite party, the opposite party has admitted this much of sum of money.
A copy of the agreement dated 30 - 12 - 2008 is annexed along with the memo of complaint as annexure-2, which is admitted to both the parties of the complaint. In this agreement the opposite party has admitted that it ( the builder) has received Rs. 5, 25,000/- from the complainant till the date of the agreement out of Rs. 18 lakh and agreed to be taken for value of an semi-finished flat. On page 2 of this agreement, at column 12 it is given that the agreement took place between the parties is of a semi-finished flat. This condition elucidates that the agreement entered in to between the parties was for a 'semi-finished flat' and not for 'fully finished flat', as claimed by the complainant. In the same agreement at page 3 at column 19 it is given that the consideration for the semi-finished flat is fixed Rs. 18, 00, 000/- which an advanced sum of money Rs. 5, 25, 000/- has been taken by the builder and Rs. 12, 75,000 were agreed to be received by them in future dates, which is given at page 6 of this agreement. After this agreement on date 30 - 12 - 2008, the complainant claims that he disbursed various amount of money starting from the date 31 - 03 - 2009 to date 20 - 07 - 2011 aggregating Rs 19, 63, 000/-, for which it table has been given in the complaint in para number 7. The opposite party has admitted in para six of affidavit in evidence that the complainant paid total Rs. 17,63, 000/-. It is further given in para 9 of this affidavit in evidence that the complainant himself did not make the balance payment and did not take the possession of :7: the flat in question. Thus, it is discernible from the evidence submitted by both the parties that it is proved that Rs. 17,63,000/- where disbursed by the complainant to the opposite party (the builder), but the builder did not give the possession of the flat in question. In this way on the one hand the complainant did not disbursed the full amount for the instalments towards cost of the flat in question. On the other hand, the opposite party (the builder) did not make an authentic request to the complainant for taking possession of the flat in question along with an Completion-certificate issued by the competent authority, which is mandatory for a valid offer of possession which is mandatory to obtain before making a valid offer of possession. Section 329 of U.P. Municipal Corporation Act, 1959 provides that
329. Completion certificates; permission to occupy or use. - (1) Every person shall, within one month after the completion of the erection of a building or the execution of any such work as is referred to in Section 317, deliver or send or cause to be delivered or sent to the Municipal Commissioner at his office, notice in writing of such completion, accompanied by a certificate in the form prescribed in the bye-laws signed and subscribed in the manner so prescribed, and shall give to the Municipal Commissioner all necessary facilities for the inspection of such building or of such work and shall apply for permission to occupy the building.
(2) No person shall occupy or permit to be occupied any such building or use or permit to be used the building or part thereof affected by any work, until -
(a) permission has been received from the Municipal Commissioner in this behalf, or
(b) the Municipal Commissioner has failed for twenty-one days after receipt of the notice of completion to intimate his refusal of the said permission:
Provided that an application under sub-section (1) may be made and permission of the Municipal Commissioner to occupy given in respect of part of a building also where the Municipal Commissioner is satisfied that part has become habitable.:8:
This is pronounced by the Honourable's Supreme Court in judgement D.N. Jeevraj Vs. Chief Sec, Government of Karnataka, Civil Appeal Number 13785 of 2015 that a completion certificate is mandatory before occupation of a building and such building cannot be occupied or permitted to be occupied without a Completion Certificate.
Following the above mentioned judgements of honourable Supreme Court, we find that there cannot be a valid offer of possession by the builder without obtaining in a valid Completion- certificate, as defined in Section 329 of U.P. Municipal Corporation Act, 1959, from the competent authority. It is apparent from the allotment letter dated 05-07- 008 (a copy of which is annexed with the complaint) that the possession of the flat was agreed to be delivered within 24 months of the last payment of the instalment. The last instalment was due on 07-12-2008 but, in this particular case, the complainant was able to disburse the last instalment in the year 2011. Nevertheless, as per the aforesaid allotment letter, the possession would have been delivered within 24 months that is till the end of year 2013, but it is also apparent that the offer of possession of the flat could not be delivered in the year 2017 when this complaint was filed. As, there is nothing on record to show that the opposite party (the builder) obtained an completion letter from the competent authority and delivered along with the letter of possession to the complainant till the year 2017, even though, the major portion of instalments where disbursed by the complainant and only Rs. 2 lakhs were remaining. In this way, it is discernible from the record that on one hand the complainant could not disburse the agreed instalments till the year 2011, on the other hand the opposite party did not conveyed a valid offer of possession along with the completion letter, obtained from the competent authority. Therefore, in the particular case it is found appropriate that the refund of the amount deposited by the complainant along with a reasonable interest from the dates of deposit till the actual refund should be granted to the complainant.
On perusal of the complaint it appears that the complainant has sought the refund of the amount Rupees 19,63,000/-, which he has claimed to be deposited to the opposite party, but from the above discussion, it is clear that the complainant could prove from the evidence that he has paid :9: Rs.17,63,000/-, Hence, This Amount along with a Reasonable Interest along with the Costs of the Suit Can Be Awarded to Him. Regarding refund of the instalment paid by the buyer of flat and interest to be paid on it, honourable apex court in judgement Ghaziabad Development Authority versus Balbir Singh reported in (2004) for SCC page 65, while considering the compensation to be awarded to the consumers in case of deficiency of service by a development authority like the opposite party here in, it was held as follows: -
9. That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered that compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of propertiy he is getting.
It is further given by the honourable Apex Court:
"That compensation cannot be uniform and can be best illustrated by considering cases there possession is being directed to be delivered and cases where only monies directed to be returned, there must be relationship between amount awarded and default/unjustifiable delay/harassment of the consumer. Principle of current rate of interest only applicable where proceedings are for recovery of debt or damages. Principles which govern grant of interest do not apply to grant of compensation."
Similarly in case Charan Singh versus Healing Touch Hospital and others, reported in (2000) seven S CC page 668, the honourable Supreme Court held as follows:
... Indeed, calculation of damages depends on the facts and circumstances of each case. No hard and fast rule can be laid down for universal application. While awarding compensation, a consumer forum has to take into account all relevant factors and assess compensation on the basis of accepted legal principles, on moderation. It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of the given case according to the established judicial standards where the claimant is able to establish his charge.:10:
Considering all the facts and circumstances of the case and follow the aforesaid pronouncements of the Apex Court and The National Commission we find appropriate that the amount Rs. 17,63,000/- which is true to be dispersed from evidence on record should be refunded to the complainant along with an interest of 10 percent on it from the date of respective deposits till date of actual payment. Apart from this amount, the opposite party (the builder) shall also pay costs of the complaint that is legal expenses Rs. 10,000/- to the complainant. This bench finds that the complainant can be allowed in this manner ORDER The complaint is allowed. The opposite parties are directed to pay within one month to the complainant a sum of Rs.17,63,000/- along with an interest of 10 percent on it from the date of respective deposits till date of actual payment. Apart from this amount, the opposite party (the builder) shall also pay costs of the complaint that is legal expenses Rs. 10,000/- to the complainant.
Let copy of this order be made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission at the earliest.
( RAJENDRA SINGH ) ( VIKAS SAXENA ) PRESIDING MEMBER MEMBER Pnt. [HON'ABLE MR. JUSTICE PRESIDENT] PRESIDENT [HON'BLE MR. Rajendra Singh] JUDICIAL MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER