National Consumer Disputes Redressal
M/S Ansal Housing And Construction Ltd. vs Mrs. Renu Mahendr on 14 September, 2009
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1218 OF
2006
(Against order dtd.12.1.2006 in
Appeal no.132/1997
Of the State Commission, Delhi)
M/s Ansal
Housing and Construction Ltd.
(formerly M/s
Ansal Housing Finance
& Leasing
Co. Ltd.)
Through its
Managing Director,
15, UGF,
Indraprakash,
21, Barakhamba Road,
New Delhi 110 001
........
Petitioner (s)
Vs.
Mrs. Renu
Mahendr,
E-529, Greater
Kailash-II
New Delhi 110 048
........
Respondent (s)
BEFORE:
HON'BLE MR. JUSTICE B.
N. P. SINGH, PRESIDING MEMBER
HONBLE MR. S. K. NAIK, MEMBER
For the
Petitioner : Mr. S. K. Pattjoshi, Advocate
For the
Respondent : Dr. Bipin K. Dwivedi, Advocate
Pronounced on
14th September , 2009
ORDER
PER MR. JUSTICE B. N. P. SINGH, PRESIDING MEMBER To focus the controversy involved, salient features of the case need to be noticed with brevity. Sometimes in 1989, petitioner company floated a scheme for allotment of flats to its shareholders at Vaishali, Ghaziabad and flats were to be allotted on the basis of draw of lots. The respondent/complainant in her capacity of being a shareholder, participated in the draw and she was declared successful, and in pursuance of demand raised by the petitioner, complainant, also deposited, in the year 1989-1990, a sum of Rs.40,000/-. Despite a long wait, since there was no communication about construction of the flat by the petitioner company, respondent allegedly paid several personal visits to the office of the company in her anxiety to know status of the project, but response was negative. As there was no break through in the matter of construction of project, respondent withheld few payments of future installments following which allotment was withdrawn.
She, thereafter, asked for refund of the deposits. As this request was not acceded to by the company, she took refuge behind the consumer fora filing a consumer complaint.
The District Forum, on evaluation of pleadings of the parties, did not find fault with the petitioner company in cancellation of the allotment and for forefeiture of the deposit in terms of the Agreement executed between the parties.
The District Forum accordingly, finding no deficiency in service with the petitioner company or there being any unfair trade practice, dismissed the complaint.
In the appeal, that was preferred by the respondent/complainant, the State Commission finding deficiency in service with the petitioner, while reversing finding of the District Forum, accepted appeal and directed petitioner company to refund deposit of Rs.40,000/- with interest @ 9% p.a. from the date of filing of the complaint. It is against these findings of the State Commission that the petitioner company is in revision before us.
We notice a factual error committed by the District Forum in holding about there being Agreement between the parties as it is case of none of the parties that Agreement was executed between them. The respondent/complainant had a grievance that as shareholders were to be allotted flats at cheaper rate than the rate prevailing in the market, company had abandoned the project and siphoned deposit of the allottees to other project and it is why that the project was not completed in terms of the commitment by the company.
Though, respondent asserts to have poured, in a number of communications to the company to know status of the project for which she withheld future payment, admittedly, no such communications made by the respondent are on the record. If there be any such communication, in her solitary letter written to the company, she only wanted to know the payment schedule from the company.
Be that as it may this was however not of much significance so as to neutralize deficiency on part of petitioner.
Supposing that since respondent withholding future payments beyond Rs.40,000/- was a defaulter, company took recourse to resumption of flat, no communication was ever made by petitioner company to the respondent about status of the project, while raising demand from time to time against respondent.
We have given our consideration to this aspect of the matter and find that though a number of communications were made by petitioner company to the respondent requiring the later to make payment of the installments due, much remains to be desired. One may refer to companys letter dated 22.3.1992 in which company required respondent to make payment, failing which respondent had to make payment due along with interest @ 24% p.a. for delayed payment. The other communication made by company was letter dated 06.6.1990, letter dated 16.9.1990 and lastly, letter dated 24.6.1990 in which respondent was apprised by them to release payment, failure of which shall entail cancellation of the allotment. However, this is not the end of the story, as despite all such communications made by company to the respondent, in none of these communications company had ever apprised respondent either about the status of the project or periodical progress in the construction.
This was not without significance, as in terms of provisions of Clause 4
(a), allottees were required to make periodical payment of the installments due, proportionate to stage of construction of the project. The said clause is reads as under:
4 (a) instalments due towards payment of the flat will be paid at intervals laid down by the builder if payment is not received within the stipulated period, given in the instalment call notices or in the event of breach of any of the terms and conditions of the allotment by the flat buyer, the allotment will be cancelled and 20% of the price of the flat would be forfeited and the balance amount will be refunded without any interest.
The payment is to be made in the following manner:
--- Within 1 month from the date of draw of lots for 20% provisional allotment. Registration Amount will be adjusted against the amount due
--- Within 6 months of provisional allotment or 10% commencement of work whichever is earlier
--- On completion of foundation work 10%
--- on completion of ground floor roof slab 10%
--- on completion of 3rd floor roof slab 10%
--- on completion of 6th floor roof slab 10%
--- on completion of super structure 10%
--- on completion of brick work and internal plaster 5%
--- on completion of external plaster/cladding 5%
--- on completion of wood work, flooring except 5% final polishing
--- At the time of possession, after final cost of 5% polishing and painting If company has not apprised respondent about status of the project which in fact was associated with payments to be made by the respondent, in our considered view, the respondent withholding payment was not at fault. The company while making all these communications, though, had been insisting on respondent to release payment, they did not adhere to the terms of the allotment letter, letting respondent know about progress of the construction of the project.
Though, learned counsel appearing for the petitioner drew our attention to various photographs of the project put on the record, that need to be rejected for consideration for two reasons.
Firstly, these photographs were not before the lower fora and secondly, that may depict a picture of construction having taken place later on.
The respondent made deposit of Rs.40,000/- during 1989 -1990 and since then more than 18 years have elapsed. We would have directed petitioner company for allotment of suitable plot to the respondent in conformity with the design, dimension and description of the plot earlier allotted to her, but we feel handicapped as we have not been apprised by either of the parties as for possibility of allotment of alternative plot having been explored by either of them. That apart, respondent does not appear to be very keen for allotment of flat with the lapse of such a long period. Even at threshold while moving the District Consumer Disputes Redressal Forum filing a petition she only sought for refund of deposit of Rs.40,000/- along with interest @ 18% p.a. Sh. S. K. Pattjoshi, learned counsel appearing for the petitioner company, fairly submits that the company is still ready to refund deposit of Rs.40,000/- to the respondent.
In view of the aforesaid discussion, while upholding finding of the State Commission on material issue about refund of deposit of Rs.40,000/-, we modify the order of the State Commission directing the petitioner company to refund the sum along with interest @ 18% p.a. from the date of filing of the complaint till its realization, and with this modification, revision petition is dismissed, but without orders as to costs.
..J. (B. N. P. SINGH) PRESIDNG MEMBER ..
(S. K. NAIK) MEMBER asha