RESERVED
State Consumer Dispute Redressal Commission, Uttar Pradesh
Lucknow
Complaint No.96 of 2002
Tulika Gupta and Another
….Complainant
Versus
Ansal Housing Construction Ltd. & Another
……Opposite Parties
Present:-
- Hon’ble Sri Jitendra Nath Sinha, Presiding Member.
- Hon’ble Sri Mahesh Chand, Member.
Sri Rajesh Nath for the Complainant.
Sri V.S.Bisaria, Advocate for the Opposite Parties.
Date: 08.12.2016
Judgment
Sri Mahesh Chand,Member-This Complaint has been filed by Km. Tulika Gupta D/o Shri Anil Gupta and Smt. Gita Gupta w/o Shri Anil Gupta both residents of A-24, Shastri Nagar, Ghaziabad against Ansal Housing Construction Ltd. 15, UGF, Indra Prakash Building , 21, Barakhamba Road, New Delhi through its General Manager and Another. In brief the facts of the complaint’s case are : The opposite party No 1 is a construction company which purchase land from the farmers develop the housing colony and sale the housing plots and flats to the people. The opposite party developed a housing colony named Chiranjiv Vihar in Ghaziabad. After making publicity through newspapers and displaying hoarding, they invited applications from the public for allotment of the flats and plots. The complainants also applied for allotment of a flat named Anupam Flats measuring 105 sq. yards in the said colony on 25.5.1998. The complainants were allotted a flat on plot no S-2-409 and its cost was intimated to be Rs538,000/-. This amount was to be paid in interest free installments as it was construction linked plan as follows:
1. At the time of booking 10%
2. Within 3 months of the booking 10%
3. At the time of excavation 10%
4. At the time of completion of foundation –plinth level 10%
5. At the time of completion of super structure 10%
6. At the time of completion of laying of roof slabs 10%
7. At the time of completion of wood work 10%
8. At the time of completion of conduiting 10%
9. At the time of plastering 5%
10. At the time of completion of flooring 5%
11. At the time of completion of painting and finishing 5%
12 At the time of offer of possession 5%
The complainant deposited the required amount as follows:
1. Dated 6.5.1998 Rs 30,000/-
2. Dated 25.5.1998 Rs 20,000/-
3. Dated 16.11.1998 Rs 36,080/-
4. Dated 26.3.1999Rs 32,280/-
5. Dated 5.7.1999 Rs 32,280/-
Total Rs 150,640/-
As per complaint, the complainant enquired about the status of the booked flat a number of times but the opposite party did not tell any thing about the status of the booked flat. On dated 20.4.2002, the complainant visited the site of the aforesaid colony and found that there was no development of any kind at site. So the complainant stopped further payment due non-performance of any development. Even the plan was not sanctioned by Ghaziabad Development Authority. The complainant alleged that the opposite parties have committed the unfair trade practice and malafide transaction. Since the complaint is valued at Rs 5,38,000/- hence falls within the jurisdiction of the Hon’ble State Consumer Commission. By this complaint, the complainants have claimed Rs 150,640/- of their deposits, Rs 150,640/- as interest on the deposits @24%, Rs50,000/- as compensation for mental agony, Rs10,000/- compensation for legal expenses and Rs15,000/- as travelling & accommodation expenses from Ghaziabad to Lucknow as many as 10 times. The complainants have filed the following documents as their evidences.
1. Payment plan of the houses.
2. Allotment letter dated 30.10.1998 of the Unit No S02-209 in Anupam Houses wherein the details regarding the area of the flat and details of the costs are mentioned.
3. The receipts of the deposits
4. The copy of letter from GDA addressed to Sri R.K. Garg, B-4, Irrigation Colony, Shastri Nagar, Ghaziabad.
5. Five photographs of piece of land claiming to be place where the allotted flatsare said to be constructed.
The opposite parties have filed their objections against the complaint regarding the maintainability of the complaint case as being time barred under section 24-A of the Consumer Protection Act 1986. The complaint case was dismissed in default vide order dated 2.11.2006 of this Commission. On the application dated 22.5.2007 of the Complainant’s advocate for restoration of the Complaint Case, the Complaint Case was restored to its original number vide order of this Commission dated 6.8.2010. at the cost of Rs200/-.
The opposite parties filed the written statement and evidences in support of their written statement. They have denied all averments of the complaint. In the written statement they have stated that the complainant never paid the installments in time and have paid total amount of Rs 150,640/- till 5th July 1999. The opposite parties have cancelled the allotment on 15.2.2000 after serving the last demand letter dated 2.2.2000. The opposite parties have fully developed the area of ChiranjivVihar and the other allottees have already taken the possession of their units long back. The opposite parties have stated that the complainants after receiving the cancellation letter and the letter dated 30.3.2000 regarding the refund of deposited amount after deductions as per terms and conditions of the allotment letter, have filed in this complaint case. The opposite parties have also stated thatthe complainant did not deposit the amount of the installments despite several reminders. The complainants are entitled to get the refund of their deposits after 10% deductions as mentioned in the letter dated 30.3.2000. The opposite parties have also made the plea in their written statement that the pecuniary jurisdiction of the State Commission was above Rs 500,000/- Lac and up to Rs20,00,000/- in the year 2002 when this complaint was filed and the total relief sought in the complaint was under Rs 4 Lac which did not fall in the Pecuniary Jurisdiction of this State Commission but only in that of District Consumer Forum at Ghaziabad and the complaint is liable to be dismissed on account of the pecuniary jurisdiction only. The complainant is entitled to get refund of their deposit after 10% deductions. The opposite parties have filed the following document in support of their statement.
1. Allotment letter dated 30.10.1998 of the Unit No S02-209 in Anupam Houses wherein the details regarding the area of the flat and details of the costs are mentioned.
2. Allotment letter dated 16.1.1999 of the Unit No S02-209 in Anupam Houses wherein the details regarding the area of the flat and details of the dues towards booking and installments Rs 150,640/-, deposits Rs 86,080/ and balance dues of Rs 64,560/- are mentioned.
3. Allotment letter dated 28.9.1999 of the Unit No S02-209 in Anupam Houses wherein the details regarding the area of the flat and details of the booking and installments Rs279,760 , deposits Rs 150,640/- and balance dues of Rs 129,120/- are mentioned.
4.Demand Letter dated 2.2.2000 regarding outstanding dues of Rs161,400/- towards the installments wherein it was also mentioned that failure to deposit the outstanding amount would make the allotment as cancelled and 10% amount of the basic cost will be forfeited and interest on delayed amount would be calculated separately @24%. Per Annum.
5. Cancellation letter dated 30.3.2000. wherein the refundable amount RS 96,840/- has mentioned.
The complainants have filed the rejoinder affidavit and copy of the letter dated 3.8.2001 issued by Ghaziabad Development Authority. In the affidavit the complainants have asked for the refund without any deductions as well as interest from the date of deposit to the date of payment as the builder committed deficiency in service.
We have heard the arguments of the learned counsels of both the parties and gone through the documents available on file. In this case the complainants have taken the cost of the flat allotted as the limit for pecuniary jurisdiction. The cost of the flat was Rs 538,000/- which was sufficient for the purpose of Jurisdiction at the time of filing the complaint in the State Consumer Commission. Because at that time the pecuniary jurisdiction was above Rs. 500,000/- Lakhs and up to Rs20,00,000/- Lakhs. The complaint falls within the jurisdiction of this State Commission. The opposite parties could not produce any such agreement between the parties thatentitles the builder-developer to deduct 10% amount of the deposited amount at the time of refund, in case of failure of timely deposit of the installments by the complainant- allottee and subsequently cancellation of the booking/ allotment of flat or plot by the construction company.Of course it is admitted that in case of late depositing of installment 24% interest will be chargeable. But this interest could be charged only when the process of allotment to possession would have taken place. In the absence of any terms and conditions of deduction in case of refund, the deduction can not be made. As the scheme was construction linked plan, the construction could not take place as per schedule promised, the complainant had the every right to drop out from the scheme and seek for refund. In the instant case the complainant’s money remained deposited with the opposite party and the opposite party enjoyed it all these years, the complainant is entitled to get the refund of his full amount at the rate of 18 % per annum if not @ 24 % per annum which was chargeable from the complainant. In the light of above discussion the complainant’s complaint deserves to be allowed.
Order
The complaintis allowed. The opposite party is directed to refund the total amount deposited by the complainant along with simple interest on it @18% per annum from the date of the last deposit to the date of actual payment with in a period of one month from the date of this order failing which the complainant will be entitled to an interest @ 12% per annum on the sum total amount of principal and accrued interest as on today .i.e. the date of this order. The opposite party will also pay an amount of Rs 15000/- towards the cost of mental agony and litigation by the said period.
(Jitendra Nath Sinha) (Mahesh Chand)
Presiding Member Member
S.k. st. ct-2
