Rajasthan

StateCommission

FA/785/2014

Manish Maharishi s/o Hanuman Sahay Maharashi - Complainant(s)

Versus

Anshal Properaty Infra. Ltd. - Opp.Party(s)

Self

29 Jul 2015

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 785/2014

 

Manish Maharshi s/o Hanuman Sahai Maharshi r/o Ganga Colony, Khatipura Road, Jaipur.

 

Vs.

 

Ansal Properties Infrastructure Ltd., Addl.General Manager, 4^th floor, Mayank Trade Centre, Station Road, Jaipur & ors.

 

Date of Order 29.7.2015

 

Before:

Hon'ble Mr.Vinay Kumar Chawla-Presiding Member

Mr.Liyakat Ali- Member

Mrs.Sunita Ranka -Member

 

Mr.Kamal Chamaria counsel for the appellant

Mr. D.M.Mathur counsel for the respondents

 

 

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BY THE STATE COMMISSION

 

This appeal has been filed against the judgment of learned DCF Jaipur 4^th dated 24.7.2014 by which the complaint was disallowed.

 

Brief facts giving rise to this appeal are that the complainant had booked a Villa No. 0065 measuring 110.5 sq.mt. costing Rs.10,75,000/- with the respondents in the year 2006. The complainant had taken finance of Rs. 9,34,380/- from the ICICI Bank against this villa and on presentation of the date of this complaint a sum of Rs. 9,67,500/- have been paid to the respondents against total cost of Rs.10,75,000/- but there was delay in the construction by the respondents. The complainant filed this complaint on the ground that the possession was promised in the year 2008 and he had to pay interest on the loan taken from the bank as well as the rent for the residence he has been occupying. He has prayed for possession and compensation.

 

During the pendency of this appeal a settlement was arrived between the complainant and the respondent on 1.6.2010. As per this settlement the complainant was to pay

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balance Rs.1,07,500/- and had to withdraw all the legal proceedings instituted against the respondents. Further as per this settlement the possession was to be taken by the complainant on “AS IS WHERE IS” basis having a built up area of 850 sq.ft. This memorandum of settlement was placed on the file of the learned DCF. The learned DCF however rejected the complaint on the ground that payment of Rs. 1,07,500/- has not been proved.

 

During the appeal statement of account was produced which confirm the payment of Rs. 1,07,500/- by the complainant. The respondents had not filed any written reply before the learned DCF though they had put an appearance through their advocate. We do not understand why after the settlement was arrived at between the parties, the opposite party did not brought it to the notice of the learned DCF that complaint was no longer maintainable and the complainant should be asked to withdraw the complaint. Even after this settlement the complaint condinued for four years. On the one hand the respondents received the balance amount of Rs. 1,07,500/- but they did not issued any formal possession letter to the complainant nor acknowledged receipt of this amount. The terms of the settlement from the memorandum of

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settlement at condition no. 6 is also arbitrary. Under this condition the complainant was to take over the possession on “AS IS WHERE IS” basis with built up area of 850 sq.ft. This means this was not incumbent upon the respondents to offer and deliver the possession and complete necessary formalities for registration and sale deed and to deliver the possession in good condition.

 

The learned counsel for the respondents has argued that after depositing the amount the complainant was to withdraw the complaint but he did never withdraw his complaint. We cannot accept this argument as as per the settlement it was the duty of the respondents to offer and handover the possession as per terms of the agreement but the respondents have not discharged their part of the agreement. Moreover the condition no.6 is arbitrary and amounts to unfair trade practice on the part of the respondents. After receiving the full payment they stipulated that possession will have to be taken over by the complainant on “AS IS WHERE IS” basis.

 

In view of this we wish to allow this appeal and set aside the impugned judgment of the learned DCF. We order that the complainant shall be handed over the possession as per the

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original agreement within thirty days of this order and the balance amount if any as agreed between both the parties, if due shall be paid by the complainant. The respondents shall also pay a sum of Rs. 1 lakh as compensation for mental agony to the complainant and Rs. 11,000/- as cost of prosecution.

 

 

(Sunita Ranka) (Liyakat Ali) (Vinay Kumar Chawla)

Member Member Presiding Member

 

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