DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 731/09
Shri Vijay Kumar
Son of Shri C.R. Gupta
Resident of E-149, Saket,
New Delhi – 110017 ….Complainant
Versus
Ahluwalia Contracts (India) Ltd.
Registered Office at Ahluwalia House
4, Community Center, Saket
New Delhi – 17
Second Address
B-4/205, Safdarjung Enclave
New Delhi …Opposite Party
Date of Institution : 29.09.2009 Date of Order : 20.07.2016
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
S.S. Fonia, Member
O R D E R
A thorough reading of the file reveals that earlier the complainant had filed CC No. 08/36 against the OP before the State Commission, Delhi seeking compensation of Rs. 40 Lakhs as market value of the flat (Flat No. 410, Ahlcon Apartments, Vaishali, Ghaziabad). However, vide order dated 19.3.2008 the State Commission observed that even if the allegations are assumed to be correct and proved, the amount of compensation as to the actual expenses, harassment and other losses suffered by the complainant, if any, would not exceed Rs. 20.00 Lakhs for the purpose of pecuniary jurisdiction. Hence, the complaint was remitted to the District Consumer Forum.
The complainant filed a complaint before the District Consumer Forum. OP appeared and filed reply. Evidence was filed on behalf of the parties. However, from the perusal of the order-sheet dated 5.2.2008 and subsequent order sheets including order-sheet dated 3.8.09 it transpires that as there had been escalation of the price of the flat in question the complainant was allowed to withdraw the complaint with liberty to file a fresh complaint on the same cause of action and that the file of CC No. 08/36 remitted by the State Commission was not received.
Now, in the present complaint the case of the complainant is that he had booked residential apartment bearing no. 410, on 4th floor having super area of 1305 sq. ft. (approx.) in Ahlcon Apartment, Vaishali, Ghaziabad, a project launched by the OP, for a total consideration of Rs. 6,26,000/- and he paid Rs. 3,24,000/- in installments in all but the OP did not complete the construction of the apartments within the stipulated period on one pretext or the other and did not deliver the possession of the flat in question to the complainant; however, vide letter dated 20.1.92 the OP asked the complainant to pay the installment of 5% towards the price therein seeking cooperation from the complainant to complete the project in time which according to the complainant tantamounts to admission on the part of the OP that there was considerable delay in the completion of the construction work. It is further stated that on 14.4.2000 the OP wrote a letter to the complainant for the possession of the flat in question thereby informing the complainant that in view of the OP’s letters dated 17.1.2000, 17.7.2000 and 10.3.2000 thereby requesting the complainant to take the possession of the flat after depositing the outstanding amounts including the escalation misc. charges along with interest @ 24% p.a. The OP made a demand of Rs. 9,93,983.43p towards the balance payment as against the original fixed value of Rs. 6,26,400/- (sic) for the flat in question. It is submitted that the alleged interest of Rs. 4,24,4056.65p towards interest was erroneous. It is further stated that the OP also started sending maintenance bills from 11.4.2001 till date amounting to Rs. 88,740/- with further interest @ 10% without even giving the physical possession of the flat in question to the complainant. According to the complainant, he is still ready and willing to make the balance payment of the total sale consideration of Rs. 6,26,400/- out of which a sum of Rs. 3,24,000/- has already been paid. According to the complainant, he is suffering from mental torture, agony, sufferings. Therefore, pleading deficiency in service, the complainant has filed the present complaint with the following prayers:
“It is, therefore, most respectfully prayed to this Hon’ble Forum that may be pleased to allow the present complaint and thereby directing the opposite party to accept the balance sale consideration of Rs. 6,26,400/- from the complainant and to hand over vacant, peaceful and uninterrupted possession of apartment No. 410, in Ahlcon Apartments, Vaishali, Ghaziabad, UP to the complainant forthwith and also to direct the opposite party to pay the damage to the tune of Rs. 20 lacs to the complainant on account of mental pains, suffering agony and deficiency in service along with interest @ 24% p.a. from the date of filing of the present complaint till its realization.”
In the reply the OP has inter-alia pleaded that the complainant did not make the payment of the installments as per the schedule of the payment prescribed in the agreement signed by the complainant. Denying each and every fact made in the complaint, the OP has pleaded that the complainant was offered possession of the flat in question several times and that a letter dated 1.6.2005 was also sent to the complainant by the OP therein giving last opportunity to him to deposit the money and to take over the possession of the flat in question but despite this letter being very categorical the complainant did not show any interest in the property and the complainant also did not pay any attention to the subsequent letters written by the OP and hence under these circumstances the OP sold the flat in question to one Arvind Panwar by sale deed dated 4.3.2006 registered at Book No. 6492, Volume No. I in the office of the Sub-Registrar, Ghaziabad. It is prayed that the complaint be dismissed.
Complainant has filed rejoinder wherein he has not denied about the sell of the flat in question to the third party vide sale deed dated 4.3.2006. On the other hand, it is pleaded that the flat in question was sold to the third party in contravention of the injunction order passed by the Consumer Forum in CC No. 125/06.
It is not out of place to mention here that CC No. 125/06 was filed by the complainant against the OP on 9.3.2006 and while issuing notice of the complaint to the OP for 3.5.2006 the OP was restrained from creating any third party interest in the flat in question. However, on 1.6.06 the appearance was put on behalf of the OP and it was stated that the OP had already sold the flat in question on 4.3.2006. Therefore, in our considered opinion, the selling of the flat in question by the OP to the third party on 4.3.2006 was prior to the date of issue of the restraint order and hence the said sell was not in contravention of any injunction order.
The complainant has filed his own affidavit in evidence. On the other hand, affidavit of Sh. Manoj Kumar, Manager (Legal) has been filed on behalf of the OP.
Written arguments have been filed on behalf of the parties.
None has appeared to advance the arguments on behalf of the parties despite opportunities given in this behalf. Therefore, we proceed to decide the complaint.
The prayers of the complainant in CC No. 125/06 and also in the present complaint are similar. One more fact which is revealed from the perusal of the file is that during the pendency of the CC No. 125/06 complainant had also filed CC No. 08/36 before the State Commission with altogether a different prayers but the matter was remitted back to the District Forum though that file was never received from the State Commission to the District Consumer Forum..
Without burdening the order with a lengthy discussion we hold that there is ample evidence on the record to prove that the OP infact sold the flat in question to one Arvind Panwar on 4.3.2006 vide sale deed No. 6492, Volume No. I in the office of the Sub-Registrar, Ghaziabad even before filing complaint CC No. 125/06 and, no doubt, before filing the present complaint despite that the complainant has again come to this forum in the present complaint with the same prayers. When the flat in question had already been sold out to the third party, how can the said flat be directed to be allotted to the complainant.
On 13.4.2006 we advised the parties to sit together and negotiate for amicable settlement. The matter was adjourned to 1.6.2016. However, on 1.6.2016 none appeared on behalf of the complainant. Counsel for the OP stated that the OP is ready to refund the principal amount to the complainant. The matter was adjourned to 12.7.2016. However, on that date also none appeared on behalf of the complainant.
In the facts and circumstances of the case discussed hereinabove, we are of the opinion that amount of Rs. 3,24,000/- can be directed to be refunded to the complainant along with appropriate interest. There was certainly deficiency in service on the part of the OP in not completing the construction of the flats including the flat in question within the stipulated period. However, at the same time the complainant also did not show any keen interest in paying the installments to the OP in time. Firstly, he filed CC No.08/36 before the State Commission. Now, he again filed the complaint with the same prayer as contained in CC No. 125/06. In these circumstances we hold that the complainant is entitled to the interest @ 6% p.a. from the date of filing of the present complaint i.e. w.e.f. 26.09.2009.
In view of the above discussion, we partly allow the complaint and direct the OP to refund Rs. 3,24,000/- along with interest @ 6% from 26.09.2009 till the date of realization to the complainant within one month from the date of receipt of copy of this order failing which the OP shall become liable to pay interest @ 7% p.a. on the amount of Rs. 3,24,000/- from the date of filing of the complaint till its realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 20.07.2016
(S.S. FONIA) (NAINA BAKSHI) (N.K. GOEL) MEMBER MEMBER PRESIDENT
Case No. 731/09
20.7.2016
Present – None.
Vide our separate order of even date pronounced, the complaint is partly allowed. OP is directed to refund Rs. 3,24,000/- along with interest @ 6% from 13.8.1999 till the date of realization to the complainant within one month from the date of receipt of copy of this order failing which the OP shall become liable to pay interest @ 7% p.a. on the amount of Rs. 3,24,000/- from the date of filing of the complaint till its realization. Let the file be consigned to record room.
(S.S. FONIA) (NAINA BAKSHI) (N.K. GOEL) MEMBER MEMBER PRESIDENT
