STATE CONSUMER DISPUTE REDRESSAL COMMISSION
BIHAR, PATNA
Appeal No. 346 of 2017
M/S Dream Heaven Home Pvt. Ltd, 2nd Floor, Kishan Kutir, Katira More, Opposite Bank of Baroda, Ara, District- Bhojpur, through its Managing Director, Sri Vivekanand Pandey
….. Opposite Party-Appellant
Versus
Dinanath Singh, son of late Rajaram Singh, village- Dularpur, P.O- Baranwa, P.S- Aiyar, District- Bhojpur at Ara, at present residing in the House No. 1564, Ward No.6, Sheoshankar Nagar, Hindu Public School, (Near Jagdhari, Yamunanagar, Haryana- 135003. …… Complainant-Respondent
Before,
Hon’ble Mr. Justice Sanjay Kumar, President
Mr. Ram Pravesh Das, Member
Dated 27.02.2023
O r d e r
Sanjay Kumar,J: President
Present appeal has been filed on behalf of appellant-opposite party for setting aside the judgment and order dated 21.03.2017 passed by learned District Consumer Disputes Redressal Forum, Bhojpur, Ara in consumer complaint case no. 32 of 2016 whereby and whereunder the learned District Forum has directed appellant to refund the amount of Rs. 4,10,000/- with interest @ 10% p.a from 15.11.2013 and further directed to pay Rs. 50,000/- as compensation for mental and physical harassment and Rs. 3,000/- as cost of litigation.
Briefly stated the facts of the case is that complainant booked a flat from opposite party situated at Aapana Basera village-Akona Udwantnagar Bhojpur for total consideration amount of Rs. 15,85,942/- and on 05.10.2013 complainant deposited Rs. 50,000/- as booking amount and further Rs. 4,60,000/- was paid on 15.11.2013 in the office of appellant/opposite party at Ara and thereafter agreement for sale was entered between the parties. Subsequently complainant realized that at the time of execution of agreement for sale only 25% of the total consideration amount which is Rs. 3,33,750/- was payable but extra amount of Rs. 1,26,250/- was realized from him.
On 10.01.2015 when complainant went at the site of construction he found that no construction work has started as such complainant sought refund of his deposited amount as contrary to terms of agreement constructed work was not even started.
Opposite party agreed to refund the amount and on 20.05.2015 opposite party refunded Rs. 50,000/- and thereafter on 31.07.2015 further Rs. 50,000/- was refunded however remaining amount was not refunded for which complainant served legal notice upon opposite party but no steps was taken by opposite party to refund the remaining amount of Rs. 4,10,000/- deposited with opposite party as such complainant approached learned District Consumer Forum for refund of remaining amount with interest.
Notices were issued to opposite party but inspite of valid service of notice opposite party did not appear to contest the claim of complainant and proceedings continued ex parte against opposite party.
In support of his claim complainant filed evidence in affidavit and also placed on record money receipt of Rs. 50,000/- dated 05.10.2013 (exhibit-A), money receipt of Rs. 4,60,000/- dated 15.11.2013 (exhibit A1), agreement for sale dated 06.01.2014 (exhibit- A2), petition dated 10.01.2015 for refund of money (exhibit A3), legal notice (exhibit A4) and reply to legal notice (exhibit A5).
The learned District Consumer Forum on the basis of material placed on record held that opposite party in his reply to legal notice has neither denied the booking of flat by the complainant on total consideration amount of Rs. 15,85,942/- nor denied the deposit of booking amount of Rs. 50,000/- dated 05.10.2013 and Rs. 4,60,000/- on 15.11.2013 totaling Rs. 5,10,000/- and thereafter agreement for sale was entered between the parties for sale of one flat detailed in schedule-A and schedule- B of the agreement for sale.
The learned District Consumer Forum further held that till 10.01.2015 no construction work had started at the site of Aapna Basera which was violation of terms and conditions of the agreement for sale as such complainant was entitled for refund of the amount with interest.
Complainant had deposited Rs. 5,10,000/- with the opposite party and opposite party had returned Rs. 1,00,000/- and rest amount of Rs.4,10,000/- was still kept by him which he ought to have refunded and same amounts to deficiency in service and ordered opposite party to refund the remaining amount of Rs. 4,10,000/- with interest @ 10% p.a from 15.11.2013 till date of payment and further ordered to pay Rs. 50,000/- as compensation for mental and physical harassment and pecuniary loss as well as Rs. 3,000/- as cost of litigation within one month from the date of order failing which interest @ 12% p.a shall become payable.
Aggrieved by order dated 21.03.2017 passed by District Consumer Forum, Ara opposite party has filed this appeal.
It is submitted on behalf of counsel for the appellant that the complaint case was time barred and without condonation of delay the complaint case has been allowed. It is further submitted that opposite party had sent his written statement but same was not considered by the District Consumer Forum. It was further submitted that on account of dispute with the land owner and other hindrances the project could not progress and meanwhile there was escalation in the price of building material.
Having heard counsel for the parties the appeal is fit to be dismissed for the following reasons:-
(i) Complainant had deposited the booking amount and thereafter agreement for sale was entered between the parties but in terms of agreement construction work had not started as such it was a continuing wrong and there was recurring cause of action as such the complaint case is not time barred.
(ii) In terms of agreement the project was to be completed within a specified period and possession of flat was to be handed over to the complainant but on 10.01.2015 even construction work had not started as such complainant was entitled for refund of the amount deposited with interest.
(iii) Once the appellant agreed to refund the booking amount and also refunded Rs. 1,00,000/- in two installment he cannot retain the remaining amount with him and was bound to refund the remaining amount to the complainant.
(iv) From the contents of memo of appeal it appears that construction work has not been completed even on the date of filing of appeal which has been attributed to different factors for which complainant is not answerable.
(v) Once the terms of the agreement has been determined and opposite party has agreed to refund the amount as construction work had not commenced there was no occasion for the complainant to make further payment and such plea taken in appeal is preposterous.
(vi) Appellant inspite of valid service of notice did not appear before the District Consumer Forum to contest the claim of complainant which shows his lack of respect for District Consumer Forum.
(vii) The proceedings followed in District Consumer Forum is summary in nature and procedure under C.P.C is not applicable.
(viii) Availability of alternative forum of RERA is not a bar for the consumer forum to entertain complaint case filed by consumers.
There is no merit in this appeal and accordingly dismissed.
(Ram Pravesh Das) (Sanjay Kumar,J)
Member President
