Case No. 235/2022   

IN THE MATTER OF

Yogesh Kumar Sharma  S/o Virendra Kumar Sharma R/o A5 City Enclave Ramghat Road Aligarh

                                           V/s

A.S.M. (India) Infra Height Pvt. Ltd. Unique Complex Kishanpur Tiraha Ramghat road Aligarh Reged. Office-1 Unique Apartment Laxmi Bai Marg Aligah UP through its Director Rajeev Sharma

CORAM

 Present:

1. Shri Hasnain Qureshi, President
2. Shri Alok Upadhayay, Member
3. Smt. Purnima Singh Rajpoot, Member

PRONOUNCED by Shri Hasnain Qureshi, President

JUDGMENT

1. The present complaint has been filed by the complainant before this commission for following reliefs:-

1. Op be directed to handover the possession of the flat within a month on receiving the balance mount Rs. 2065000 and on failure, op is directed to pay the amount Rs. 2435000 with interest @18% per annum from 13.2.2019 till the date of payment.
2. Op be directed to pay Rs.100000 as compensation for harassment.
3. Op be directed to pay the amount Rs.25000 as litigation expenses.

2. Complainant has stated that the op is a builder and the complainant entered into agreement with the op on 13.2.2019 to purchase a flat for Rs.4500000. He paid the amount Rs. 2435000 on different dates against sale and the balance amount Rs.2065000 was agreed to be paid at the time of execution of sale deed and delivery of possession of the flat. The agreement was executed and amount was received by the director of op Sri Rajesh Agrawal. Op could not hand over the possession of the flat and failed to execute the sale deed within the stipulated period. Complainant was deprived from the use of the investment made by him which includes the consequence of delay for not handing over the possession of the flat. Op was not only under the contractual obligation but also under the legal obligation to hand over possession of the flat within stipulated period and on failure op is liable to return the amount received as well as for payment of compensation for deficiency in service  with interest @18% per annum.  

3. Op stated in WS that the Complaint is barred by limitation U/s 69 of the Act, 2019 as the last communication was made between the parties vide receipt dated 13.2.2019 and the petition was filed on 1.12.2022. It was further stated that the alleged payments were made to the then director of company lastly through cheque dated 14.9.2015 and Mr. Rajesh Agrawal remained as director of the company from 25.1.2012 to 1.12.2017 and Mr. Rajesh Agrawal was not the director in the year 2019.The alleged receipt dated 13.2.2019 is fake and fabricated as at the time of execution of the said receipt dated 13.2.2019 Mr. Rajesh Agrawal had already been removed from the post of director. The cheque dated 14.2.2015 for Rs.1035000 presented to then director was transferred by the then director to his personal company account, that is,  Global Infra Town Pvt. Ltd. and committed fraud. Complainant has not proved the payment of amount Rs.2435000 and op is not liable to refund the alleged money.      
4. Complainant has filed his affidavit and papers in support of his pleadings. Op has also filed affidavit and papers in support of  pleadings.  

5. We have perused the material available on record and heard the parties counsel.

6. The first question of consideration before us is whether the complainant is entitled to any relief?
7. Complainant has stated that he had paid the total amount Rs.2435000 to the op towards the consideration Rs. 4500000 of the flat. Complainant has mentioned details of the payment in the compliant and he has filed a receipt dated 13.2.2019 of the payments made by him. Complainant has proved the execution of the receipt dated 13.2.2019 in his affidavit and there appears no reason to disbelieve the same and thus it is proved that the amount Rs.2435000 was paid by the complainant to the company. As the payment was made to the director of the company and if any director is changed, it is for the company to realize the amount misappropriated by him and the person who made the payment cannot be penalized. Thus the payment of Rs.2435000 stands proved by the complainant towards the sale consideration of the flat. Op has failed to deliver the possession of the flat to the complainant and has committed deficiency in service. Therefore op is liable to refund the money Rs.2435000paid by the complainant and also liable to pay compensation in terms of interest at the rate 18% per annum from 13.2.2019 till the date of payment.            
8. The question formulated above is decided in favor of the complainants.
9. The second question of consideration before us is whether the complaint   is time barred?
10. It is proved that the payment was made through receipt dated 13.2.2019 and the delivery of possession of the flat was to be given within two years and the cause of action for filing the complaint arose at the end year, 2021. The complaint was filed on 1.12.2022 within the statuary period of limitation. Complaint was admitted and is being decided on merits.
11. The question formulated above is decided in favor of the complainants.
12. We hereby direct the Op to repay the amount Rs.2435000 with pendente lite and future interest @ 18% from 13.2.2019 to till the date of actual payment. Op is also directed to pay compensation for harassment Rs.50000 and litigation expenses Rs.25000.
13. Op shall comply with the direction within 30 days failing which Ops shall be prosecuted for non-compliance in accordance with section 72 of the Act for awarding punishment against him.
14. A copy of this judgment be provided to all the parties as per rule as mandated by Consumer Protection Act, 2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
15. File be consigned to record room along with a copy of this judgment.