ORAL
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 1349 OF 2023
(Against the order dated 21-04-2023 in Complaint Case No.533/2018 of the District Consumer Commission, Gautam Budh Nagar)
Yamuna Express-Way Industrial Development Authority
Greater Noida
District Gautam Budh Nagar
U.P. 201310
Through its Manager
...Appellant
Vs.
- Bani Singh
S/o Itwari Lal
R/o Village Haldauna
Tugalpur, Greater Noida
District Gautam Budh Nagar
U.P. 201310
- Punjab Evam Sindh Bank
Greater Noida
District Gautam Budh Nagar
U.P. 201310
Through its Manager
...Respondents
BEFORE:
HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT
HON’BLE MR. SUSHIL KUMAR, MEMBER
For the Appellant : Sri Waseeq Uddin Ahmad, Advocate.
For the Respondent :
Dated : 16-08-2023
JUDGMENT
MR. SUSHIL KUMAR, MEMBER
Instant appeal has been filed by Yamuna Express-way Industrial Development Authority under Section-41 of the Consumer Protection Act, 2019 against the judgment and order dated 21-04-2023 passed by the District Consumer Commission, Gautam Budh Nagar in Complaint Case No. 533/2018.
The facts of the case stated in brief are that the complainant was allotted a Flat in the Affordable House Scheme ‘BHS-02/2013’ and deposited Rs.2,77,000/- with the opposite party No.01 Yamuna
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Express-way Industrial Development Authority, Greater Noida, District Gautam Budh Nagar alongwith the form after obtaining Loan from the opposite party No.2 Punjab And Sindh Bank, Greater Noida, District Gautam Budh Nagar.
It has been allged by the complainant in his complaint that he was unable to arrange the instalment amount of the flat in question, therefore, he submitted the application dated 03-03-2014 with the opposite party No.01 for surrender of the flat in question and prayed for refund of the deposited amount after deducting 10% from the deposited amount. The opposite party No.01 has not refunded the deposited amount after deducting 10% from the deposited amount to the opposite party No.02.
It has been further alleged by the complainant in his complaint that the opposite party No.02, the bank has threatened him to deposit the amount alongwith interest otherwise recovery proceedings will be initiated against him. The complainant visited the office of the opposite party no.2 several times but no action has been taken by the opposite party No.1. The complainant sent the legal notice dated 13-10-2018 to the opposite party No.01 through his Counsel but inspite of this nothing has been done by the opposite party no.1. The complainant being aggrieved with the inaction of the opposite party No.01 filed the complaint before the learned District Consumer Commission.
The opposite party No.01 has contested the case before the learned District Consumer Commission and has filed the written statement in which it has been accepted by the opposite party No.01 that allotment letter has been issued on 12-02-2014 and the application for surrender of the flat dated 03-03-2014 has been given by the complainant but the request of the complainant to deduct 10% amount from the deposited amount has not been accepted by the opposite party No.01.
The opposite party No.01 has further stated in its written statement that it has refunded the deposited amount after deducting 10% of the total cost of the flat. But no evidence in this regard has
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been produced by the opposite party No.1 before the learned District Consumer Commission .
The learned District Consumer Commission, after hearing the Counsel for complainant and perusing the materials available on record and the evidence adduced by the complainant, has allowed the complaint and passed the following order.
“परिवादी का परिवाद स्वीकार किया जाता है। विपक्षी को आदेशित किया जाता है कि वह परिवादी की जमा धनराशि अंकन 2,77,000/- रू0 में से 10 प्रतिशत काटकर शेष धनराशि 06 प्रतिशत वार्षिक साधारण ब्याज सहित परिवाद के दिनांकसे भुगतान के दिनांक तक परिवादी को अदा करें। विपक्षी मानसिक संताप के मद में अंकन 10,000/-रू0 तथा वाद व्यय के मद में अंकन 1000/-रू0 भी परिवादी को अदा करे। आदेश का अनुपालन आदेश की तिथि से 30 दिन के अंदर सुनिश्चित किया जाए।
प्रार्थना पत्र यदि कोई लम्बितहोतो वह भी सभी इस निर्णय के अनुसार निस्तारित किये जातेहैं।
इस आदेश की प्रति सभी पक्षकारों को उपभोक्ता संरक्षण अधिनियम 1986/2019 के प्रावधान के अनुसार नि:शुल्क प्राप्त कराई जाए। इस आदेश की प्रति को कमीशन की वेबसाइट पर पक्षकारों के अवलोकन के लिए अपलोड किया जाए। पत्रावली निर्णय की प्रति के साथ अभिलेखागार दाखिल किया जाए।‘’
Being aggrieved with the impugned judgment and order the opposite party No.01 Yamuna Express-way Industries Development Authority has come up in appeal.
Sri Waseeq Uddin Ahmad, learned Counsel for the appellants appeared.
We have heard learned Counsel for the appellants at the admission stage itself and perused the record.
It has been argued by the learned Counsel for the appellants that the learned District Consumer Commission has overlooked the
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contractual terms of the brochure which provides the appellant to forfeit earnest money on cancellation of the unit.
It has been further argued by the learned Counsel for the appellant that the learned District Consumer Commission had miss-appreciated, misinterpreted and miss-conducted the fact while passing the impugned judgment and order resulting in to miss-carriage of justice.
It is argued by the learned Counsel for the appellants that the judgment and order of the District Consumer Commission suffers from conjecture and surmises and findings of it are perverse as such are liable to be set aside.
It has been further argued by the learned Counsel for the appellant that the order passed is arbitrary and unjust and has been passed without application of judicial mind and in a very casual manner without jurisdiction.
Before deciding the appeal we have perused the Terms and Conditions for ‘Allotment of Multistoreyed Flats’. Clause J-2 of the Terms and Conditions is as under:-
“In case of surrender after the allotment/draw of lots but within 30 days from the date of allotment, 10% of the Registration Money shall be forfeited and balance amount deposited shall be refunded without interest.”
In this case also the allotment letter has been issued on 12-02-2014 and the surrender application has been given by the complainant to the opposite party No.01 on 03-03-2014. This shows that within a period of 30 days from the date of allotment, surrender application has been given by the complainant, therefore, Clause J-2 of the terms and conditions will be applicable in this case.
The District Consumer Commission has recorded a categorical finding in its judgment and order that the opposite party No.,01 has committed deficiency in service and unfair trade practice in deducting 10% on the total cost instead of 10% on the deposited amount. The opposite party No.01 should have deducted 10% and the remaining amount should have been refunded which has not been
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done by the opposite party No.01. The complainant has submitted the surrender application within the time without any default which should have been accepted and the deposited amount should have been refunded after deducting 10% from the deposited amount.
Having heard the learned Counsel for the appellants and after going through the material and evidence available on record and particularly the findings recorded by the learned District Consumer Commission, who has taken all care in mentioning the issues in detail and in deciding the same, We are of the considered opinion that the order passed by the learned District Consumer Commission is fully justified and is correct, as such need no interference and as such is liable to be upheld and the appeal is liable to be dismissed.
ORDER
The appeal is dismissed. The judgment and order of the learned District Consumer Commission is confirmed.
Let copy of this order be made available to the parties as per rules.
Any amount deposited by appellant in appeal under Section 15 of the Consumer Protection Act, 1986 shall be remitted to District Consumer Commission, Gautam Budh Nagar alongwith interest accrued for disposal in accordance with this judgment.
The Stenographer is requested to upload this order on the website of this Commission at the earliest.
( JUSTICE ASHOK KUMAR ) ( SUSHIL KUMAR )
PRESIDENT MEMBER
Pnt.
