DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW
CASE No.396 of 2014
Smt. Shail Shukla,
W/o Sri R.P. Shukla,
R/o 96/65, Sunar Wali Gali,
Ganesh Ganj, Lucknow.
……Complainant
Versus
- M/s Janki Prasad Garden Enclave Pvt. Ltd.,
538, Sitapur Road, Shree Nath Ji Bhavan,
Lucknow-226020.
Through its Managing Director.
- Sri Raj Kumar Agarwal,
Managing Director,
M/s Janki Prasad Garden Enclave Pvt. Ltd.,
538, Sitapur Road, Shree Nath Ji Bhavan,
Lucknow-226020.
.......Opp. Parties
Present:-
Sri Vijai Varma, President.
Smt. Anju Awasthy, Member.
JUDGMENT
This complaint is filed by the Complainant against the OPs for directing the OPs to deliver the possession of a similar flat in same location at same old rate or refund the amount of Rs.1,85,000.00 with interest and for payment of Rs.2.00 lakhs as compensation, Rs.21,000.00 as legal expenses and Rs.3,000.00 as miscellaneous expenses.
The case in brief of the Complainant is that he had booked a 2BHK flat in OPs’ Shree Nath Ji Vihar Scheme situated at Sitapur Road, Lucknow on 08.02.1999 and paid Rs.5,000.00 in cash towards booking amount of the said flat. The said flat was priced at Rs.9.00 lakhs with 1200 sq. ft. with 2 bedrooms at that time. The Complainant made further payments of Rs.1,20,000.00 vide cheque dated 14.02.1999 and
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Rs.60,000.00 vide cheque dated 25.03.1999 to OPs, hence the Complainant paid total Rs.1,85,000.00 as part payment of flat No.209 Block B-5 at Shree Nath Ji Vihar Scheme allotted to the Complainant to the OPs. The balance amount was required to be paid on call at the time of registry and possession of the said flat in favour of Complainant. In the meantime within 2-3 months it came to the knowledge of the Complainant that the same flat number had been allotted by the firm of OPs to more than one purchaser and payment from several persons were taken by OPs for the same flat number. Apprehending the same fraud being committed with respect to the aforesaid flat and genuinely believing that her money was not safe with the OPs’ firm, she opted to seek refund of the amount of Rs.1,85,000.00 paid by her and wrote letters dated 02.07.1999, 15.01.2001 and 27.06.2002 and also completed the required formality by giving desired affidavit for the same. On 15.04.2004 the Complainant contacted OP No.2 personally and again requested for the refund of her money paid in advance or alternatively to give the flat on which the OP No.2 agreed to pay 9% interest on the amount of Rs.1,85,000.00 but nothing was done by the OPs and Complainant ran from pillar to post for the same. The Complainant sent a legal notice dated 25.08.2012 to OP No.2 on which OP gave reply through letter dated 01.10.2012 wherein he offered to pay Rs.60,000.00 to the Complainant which shows the cheating and deficiency of service of the OPs, hence this complaint.
Notices were issued to the OPs but none appeared, hence the case proceeded exparte against OPs vide order dated 04.04.2015.
The Complainant has filed her affidavit with 4 annexures and photocopy of legal notice with the complaint.
Heard Counsel for the Complainant and perused the entire record.
In this case, the Complainant booked a 2BHK flat in the Shree Nath Ji Vihar Scheme of the OPs at Sitapur Road,
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Lucknow by paying Rs.5,000.00 on 08.02.1999. The said flat was priced at Rs.9.00 lakhs. She made payments of Rs.1,20,000.00 vide cheque dated 14.02.1999 and Rs.60,000.00 vide cheque dated 25.03.1999 to OPs and thus she paid total Rs.1,85,000.00 for flat No.209 Block B-5 at Shree Nath Ji Vihar Scheme allotted to the Complainant by the OPs. The balance amount was required to be paid at the time of registry and possession of the said flat. Thereafter she came to know that the OPs are allotting the same flat to several other buyers, therefore she asked the OPs to refund the amount but the OPs refused and hence the Complainant gave a notice to the OPs and the OPs in their reply dated 01.10.2012 have offered to refund only Rs.60,000.00. The Complainant hence filed this case for directing the OPs to deliver the possession of a similar flat in same location at same old rate or refund the amount of Rs.1,85,000.00 with interest and for payment of Rs.2.00 lakhs as compensation, Rs.21,000.00 as legal expenses and Rs.3,000.00 as miscellaneous expenses. The Complainant has in support of her claim filed a photocopy of receipt of Rs.5,000.00, Rs.1,20,000.00 and Rs.60,000.00 which show that she paid Rs.5,000.00 on 08.02.1999, Rs.1,20,000.00 on 10.02.1999 and Rs.60,000.00 on 25.03.1999 totalling Rs.1,85,000.00 for the allotment of the flat by the OPs. She has also filed the photocopy of letter as annexure 2 written for refunding the amount. She has also filed a photocopy of the legal notice as annexure 3 and reply as annexure 4 sent by the OPs in this regard. She has also filed her affidavit proving the contents of the complaint completely and from her affidavit as well as from the documents filed by her it is abundantly clear that she paid total Rs.1,85,000.00 to the OPs for the aforesaid flat. Notices were issued to the OPs but none appeared, hence the case proceeded exparte against OPs vide order dated 04.04.2015. There is no WS nor counter affidavit filed by the OPs to counter the allegations of the Complainant, hence there is no reason to disbelieve the unchallenged testimony of the
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Complainant. In fact from the reply sent by the OPs to the legal notice sent by the Complainant, it transpires that payment of Rs.1,85,000.00 for the flat in question was accepted by the OPs but according to them Rs.90,000.00 was the earnest money and Rs.95,000.00 was paid towards instalment and since the allotment has already been cancelled, hence the earnest money stood forfeited but no reply in this regard has been filed by the OPs in this complaint nor any evidence to such effect, therefore merely on the basis of what has been stated by the OPs in the reply to the legal notice sent by the Complainant the averments made by the OPs in the reply do not prove their contention whereas from the documents on record, it is abundantly clear that the OPs did not refund the amount of Rs.1,85,000.00 despite several requests made by the Complainant in this regard which is unfair trade practice and deficiency of service on the part of the OPs, hence the Complainant is entitled to Rs.1,85,000.00 with interest. Since she has also been harassed in this regard, hence she is also entitled to compensation as well as cost of the litigation.
ORDER
The complaint is partly allowed. The OPs are jointly and severally directed to refund Rs.1,85,000.00 (Rupees One Lakh Eighty Five Thousand Only) with 9% interest from the date of filing of the case till the final payment is made to the Complainant.
The OPs are also directed to pay Rs.3,000.00 (Rupees Three Thousand Only) as compensation and Rs.3,000.00 (Rupees Three Thousand Only) as cost of the litigation.
The compliance of the order is to be made within a month.
(Anju Awasthy) (Vijai Varma)
Member President Dated: 5 January, 2016
