Delhi

StateCommission

A/273/2016

M/S TDI INFRASTRUCTURE LTD. - Complainant(s)

Versus

BABITA CHOPRA - Opp.Party(s)

KANIKA AGNIHOTRI

20 Jul 2017

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Date of Arguments: 20.07.17

           Date of Decision:    24.07.17

First Appeal No. 273/16

In the matter of:

M/s TDI Infrastructure Ltd.

Through its authorized representative

9, Kasturba Gabndhi Marg

New Delhi-110001.                                                                            …..Appellant              

 

                                                                        VERSUS

Babita Chopra

GC-15, Shivaji Encalve

Delhi-110027                                                                                      ……Respondent

           

CORAM

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.Whether reporters of local newspaper be allowed to see the judgment?  Yes

2. To be referred to the reporter or not? Yes

SHRI O.P.GUPTA

JUDGEMENT

          This order will dispose of appeal against order dated 24.11.15 passed by District Forum in CC 905/12 whereby the complaint was allowed and OP/appellant was directed to refund Rs. 6,25,000/- with 9% interest from respective date of deposit till the payment, Rs. 25,000/- as litigation expenses and Rs. 25,000/- for deficiency.

2.       Facts giving rise to the filing of complaint were that complaint paid Rs. 3,00,000/- to the OP towards booking of residential flat in Future Project of OP vide receipt No.32583 dated 27.02.06. The amount was paid in the name of complainant as well as in the name of her mother.  Mother of the complainant also paid Rs. 3,00,000/- separately for booking in her name and in the name of her son Narender Khanna vide receipt No. 32363 dated 27.02.06.

3.       Complainant and her mother were given ID KFL 14486 and ID KFL 14446. OP promised to complete the project within 24 months and hand over the possession.

4.       Since OP started giving threat to forfeit the money deposited by complainant and her mother,   they agreed to the proposal of OP to get two bookings merged in fresh one booking.  The complainants deposited Rs. 25,000/- for that proposal vide receipt 26.09.09.  Fresh ID KFL 17502 was given.  The OP issued computerized statement dated 15.12.11 showing that they have received Rs. 6,25,000/- and no amount was payable by the complainant.  After 15.12.11 complainant did not receive any communication or demand from the OP. Rather she has been visiting the office of the OP for handing over the possession.  She told the OP that she was ready to pay the balance amount.  The OP started demanding huge amount in the name of escalation.

5.       Had the OP handed over possession of the flat in time, complainant would have used the said flat for her residence or let out the same which would have fetched rent not less than Rs. 15,000/- per month.  Hence this complaint for allotting flat against ID KFL 17502 and hand over possession thereof, pay interest @ 24% per month from the date of receipt of Rs. 6,25,000/- till date of possession, to pay compensation of Rs. 5,00,000/- for mental harassment and agony and to pay cost.

6.       Appellant filed WS.  They raised preliminary objection that complainant, her mother and brother did not adhere to the payment schedule.  The OP issued reminder.  OP was left with no other option but to cancel registration vide letter dated 29.05.08. Ops were entitled to adjust the amount of brokerage paid by it to the broker. The complainant was speculative investor as she was interested in gaining profit.  District Forum had no pecuniary jurisdiction as perusal of the prayer clause revealed that amount claimed was much higher Rs. 20,00,000/-.  The complaint was barred by limitation. On merits OP took the same defence.

7.       In appeal the grievance of the appellant is that respondent/complainant is not covered by Consumer Protection Act.

8.       We have gone through the material on record and heard the arguments.  The counsel for the appellant submitted that complainant booked two flats.  We are unable to appreciate the same. The reason being that complainant herself has disclosed in the complaint that one flat was booked by her in her name and in the name of her mother and other flat was booked by her mother in the name of mother and complainant’s brother.  Thus complainant did not book more than one flat in her name.

9.       Moreover once those two flats were merged in one flat and fresh ID was issued by the OP, the initial two flats loose importance.  Now dispute is regarding third single flat against ID KFL 17502 only.

10.     Counsel for the appellant also submitted that complainant booked one shop also for which a separate case is pending before Bench I in this Commission itself.  Firstly this is not the ground taken in appeal. Secondly the appellant may oppose that case on the plea that booking was for commercial purpose.  The same has nothing to do with the present case.  The counsel for the appellant drew our attention towards cancellation letter dated 29.05.08 copy of which is at page 26 of the bunch of appeal. The same shows that OP was willing to refund 50% of the booking amount i.e. Rs.1,50,000/- only. Why is not clear?  The letter does not recite that the appellant forfeited balance amount of 50%.

11.     Moreover forfeiture of 50% is uncalled for in view of decision of National Commission in Shipra Estate vs. Naresh Chand Seth II (2013) CPJ 120.

12.     The appellant never came forward with the plea as to when construction was completed.  It did not offer to give possession to the respondent, even in WS or in appeal.

13      Counsel for the appellant strongly relied upon prayer clause of the complaint to oust pecuniary jurisdiction of District Forum.  According to him the complainant sought allotment of flat, interest @ 24% per annum from the date of receipt in 2006 till delay of completion in 2012 i.e. for six years which would come to around 144%.  In other words it would come to around Rs. 9,00,000/-. Value of the flat added with interest, compensation of Rs. 5,00,000/- would cross Rs. 20,00,000/- The argument is deceptive.  The complainant could not ask for and has not asked for allotment as well as interest on amount deposited by her.  It could be either possession or refund with interest.  The prayer clauses A & B of complaint have to be read in the alternative.  Thus refund with interest would be below Rs. 15,00,000/- and after adding compensation claimed by complainant, still the amount would less than Rs. 20,00,000/-

14.     The relief given by the District Forum is very reasonable.  It has directed refund of the amount with 9% interest and Rs 25,000/- as litigation cost and Rs. 25,000/- for deficiency in service. There is no scope to interfere with the same.  The appeal fails and is dismissed.

          One copy of the order be sent to both the parties free of cost.

          One copy of the order be sent to District Forum for information.

 

(ANIL SRIVASTAVA)                                                                                                                        (O.P.GUPTA)

MEMBER                                                                                                                                             MEMBER(JUDICIAL)