National Consumer Disputes Redressal
Ansal Properties & Infrastructure Ltd. ... vs Indu Dhir on 9 October, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2023 OF 2013 (From the order dated 19.02.2013 in Appeal No. 410/2012 of the State Consumer Disputes Redressal Commission, UT, Chandigarh) With IA/3339/2013 (For Stay) 1. Ansal Properties & Infrastructure Ltd. 115 Ansal Bhawan, 16 Kasturba Gandhi Marg, New Delhi 110 001 2. Ansal Properties & Infrastructure Ltd. Regional Office, SCO No. 183-184 Madhya Marg, Sector 9-C Chandigarh Petitioners/Opp. Parties (OP) Versus Indu Dhir W/o Shri R.K. Dhir R/o H. No. 800, Sector 4, Panchkula, Haryana Respondent/Complainant BEFORE HONBLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER For the Petitioners : Mr. Dalip Mehra, Advocate With Ms. Sugandha Chugh, Advocate For the Respondent : Ms. Neha Kedia, Advocate PRONOUNCED ON 9th October, 2013 O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This revision petition has been filed by the petitioners against the order dated 19.02.2013 passed by the State Consumer Disputes Redressal Commission, UT, Chandigarh (in short, the State Commission) in Appeal No. 410/2012 Ansal Properties & Infrastructure Ltd Vs. Indu Dhir by which, while dismissing appeal, order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that Complainant/Respondent booked a shop for her own use with OP/petitioners on 6.9.2008 and deposited a sum of Rs.10,71,250/- from 12.9.2008 to 15.1.2009.
OP issued allotment letter dated 6.9.2008 and it was also assured that construction would be started immediately and possession would be handed over before December, 2010. As OP did not start the construction till December, 2010, notice dated 5.3.2012 was issued to the OP, but no reply was received. Ultimately, complainant requested OP to refund deposited amount with interest. As amount was not refunded, alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that allotment of shop was for commercial purposes; hence, complainant was not a consumer and complaint was not maintainable. It was further submitted that complainant failed to make payment as per given schedule and was defaulter in making payments, complainant was repeatedly requested to make balance payment, but payment was not made.
It was further alleged that as per Clause 9 of the agreement, complainant was liable to pay interest @ 21% p.a. on delayed payments and as per Clause 3 & 4 of the allotment letter, OP had right to cancel the allotment in case payment is not made in time. Denying deficiency on the part of OP, prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to refund deposited amount of Rs. 10,71,250/- along with 9% p.a. interest and further awarded Rs.7,000/- as cost of litigation. Appeal filed by the petitioners was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.,
3. Heard learned Counsel for the parties finally at admission stage and perused record.
4. Learned Counsel for the petitioners submitted that respondent failed to make payment as per terms and conditions of allotment letter though shop was ready for delivery of possession; even then, learned District Forum committed error in allowing refund of full amount along with interest and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that order passed by learned State Commission is in accordance with law, which does not call for any interference; hence, revision petition be dismissed.
5. It is admitted case of the parties that OP allotted shop to the complainant for a sum of Rs.30,00,000/- and payment was to be made as per construction linked instalments plan. It is also not disputed that complainant deposited Rs.10,71,250/- with the OP. As per Clause 10 of the allotment letter, construction of shop was likely to be completed within 2 to 2 years from the date of commencement of work meaning thereby construction was to be completed in 2 years from the date of commencement of work. As per instalment plan, Rs.4,50,000/- were payable on start of construction. From the record it is not clear when construction started, but as Rs.1,90,625/- were paid by the complainant on 15.1.2009, it may be presumed that construction must have started after 15.1.2009 and it was to be completed by 15.7.2011. This is also not disputed that complainant has not made any payment on start of construction and on casting of roof of basement, ground floor, etc. inspite of reminders dated 17.12.2009, 9.3.2011, 16.5.2011, 12.7.2011, 7.9.2011, 7.10.2011, 14.11.2011 and 13.2.2012.
6. As per clause 3 of the allotment letter, if payments are not received by the OP within the stipulated period, OP at is discretion had a right to cancel the allotment and in that event, earnest money i.e. 20% of the allotment price of the shop was liable to be forfeited.
OP by letter dated 25.7.2012, cancelled booking made in favour of the complainant and forfeited 20% of the basic price.
7. Learned Counsel for the petitioner submitted that as respondent failed to make payment as per terms and conditions of allotment letter, petitioner had every right to cancel the allotment and forfeit 20% of the basic price. Perusal of record clearly reveals that respondent failed to deposit amount as per terms and conditions of allotment and petitioner by letter dated 25.7.2012 cancelled the booking and forfeited 20% of the basic price which is as per terms and conditions of the allotment letter and respondent is not entitled to get refund of whole amount deposited with the petitioner.
8. Learned Counsel for the respondent submitted that as petitioner has not carried out construction work for a long period, respondent was entitled to get refund of whole amount deposited by him along with interest and learned District Forum rightly allowed complaint. This argument is devoid of force because as per occupation certificate dated 7.3.2012 issued by Greater Mohali Development Authority, occupation certificate has been issued for the allotted shop etc. in favour of the petitioner. Thus, it becomes clear that construction of the allotted shop has been completed before 7.3.2012, though; it should have been completed by 15.7.2011 meaning thereby, some delay has been caused in completion of construction. Merely because there is some delay in completion of certificate, petitioner is not entitled to get refund of the amount, rather petitioner could have been entitled for grant of compensation and interest on the deposited amount for delayed period had he deposited all the instalments as per instalment plan.
As respondent has not deposited amount as per instalment plan, petitioner was not under obligation to construct the shop within the stipulated period and in such circumstances, on account of delay of some months in completing construction, respondent is not entitled to any interest on the deposited amount.
9. Perusal of record reveals that complaint has been filed on 26.3.2012 whereas occupation certificate has been issued on 7.3.2012 meaning thereby, complaint has been filed for the purposes of avoiding possession of the shop which cannot be permitted.
Respondent was under an obligation to make payment of the instalments and get possession of the shop, but he has failed to make payment and his allotment has been cancelled as per terms of allotment letter and he is entitled to get refund of money only after deduction of 20% of the basic price. Learned District Forum has committed error in allowing refund of full amount and learned State Commission has further committed error in dismissing appeal.
10. Learned District Forum while allowing complaint observed in paragraph 7 of the order as under:
Further, it is also evident that the complainant has not made complete payment to the opposite party and is a defaulter. The complainant is now seeking refund. We do not think that the opposite party should have any objection in refunding the amount paid by her for the booked property. If the property is ready for possession, the opposite party will be able to find many buyers for the same. Non-payment or inability to pay should not be held as a ground to refuse refund. The money paid belongs to the complainant and she does have a right to ask for refund.
11. Reasoning given for refund of amount is not convincing because it cannot be expected from the OP to find buyer and refund money to the complainant who was unable to make payment of rest of the instalments.
12. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 19.2.2013 passed by learned State Commission in Appeal No. 410/2012 Ansal Properties & Infrastructure Ltd Vs. Indu Dhir and order dated 10.10.2012 passed by District Forum in Complaint No. 170 of 2012 Indu Dhir Vs. The Managing Director, Ansal Properties & Infrastructure Ltd. is modified and petitioner is directed to refund Rs.4,71,250/- along with 12% p.a. interest from 25.7.2012, the date of cancellation of booking till payment. Parties to bear their own costs.
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( K.S. CHAUDHARI, J) PRESIDING MEMBER k