IN THE STATE COMMISSION: DELHI
(Constituted under section 9 of the Consumer Protection Act, 1986)
Date of Hearing:27.07.2021
Date of Decision:04.08.2021
First Appeal No. 599/2015
IN THE MATTER OF
M/S TDI INFRASTRUCTURE LTD.
Through its CMD
9, Kasturba Gandhi Marg
New Delhi-110001….Appellant
VERSUS
KANIKA AGGARWAL
W/o Prakash Aggarwal
R/o C-394, Saraswati Vihar
Delhi ....Respondent
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
Present: Ms. Yashodhara Gupta, Counsel for the Appellant
Mr. Prakash Aggarwal, Counsel for the respondents
ANIL SRIVASTAVA, MEMBER
JUDGEMENT
- The order dated 06.05.2015 passed by the Consumer Disputes Redressal Forum-VI (District New Delhi) in C-219/2014 in the matter of Mrs. Kanika Aggarwal versus TDI Infrastructure Ltd., holding the OPs (before the Forum) deficient and directing them to refund Rs. 8 lakh alongwith interest at the rate of 10% from the date of deposit with the compensation of Rs. 50,000/-, the TDI Infrastructure Ltd., have preferred an appeal before this Commission under Section 15 of the Consumer Protection Act 1986, the Act, against Ms. Kanika Aggarwal, hereinafter referred to as appellant and respondents respectively, alleging that the orders impugned was passed without due opportunity having been afforded to them and without appreciating their submissions contained in their written statement and praying for setting aside the order and for dismissal of the complaint.
- Facts of the case necessary for the adjudication of the appeal are these.
- The respondent had approached the appellant company with a view to own a property in their future project at Kundli, Sonepat and accordingly submitted an Advance Registration Form, with a sum of Rs. 8,00,000/-, keeping in view the schedule of payment. In terms of the ARF, the respondent was to make the payment of instalments as per the schedule.
- No other payment was made. No allotment letter having been issued the complainant sought for the refund which refund not having been done, the complaint was filed before the District Forum. The dismissal of the complaint led to filing of appeal before this Commission on the ground inter alia, that the ld. District Forum has not taken into account the reply filed by the appellant, nor there is any application of mind. Secondly the ld. District Forum failed to note that the respondent chose to stop making payments in contravention of the agreed terms. Thirdly, the ld. District Forum failed to appreciate that the respondent was not a consumer, as the respondent had invested in the project which means she is not a consumer within the purview of Section 2(1)(d) of the Consumer Protection Act.
- Respondent were noticed and in response thereto they have filed reply to the appeal resisting it stating that as per agreed terms the appellant was supposed to allot booked plot within a period of one year with the condition that in case they fail to allot the same within the said stipulated period, they will refund the deposited amount with interest @ 10% per annum to the complainant which apparently has never been done by the appellant. The allotment was never been made by the appellant within agreed period of one year.
- This appeal was listed before this Commission for final hearing on 27.07.2021 when the counsel for both sides appeared and advanced their arguments, the appellant for setting aside the order impugned herein and for dismissal of the complaint on the ground that the respondent/complainant having failed to make the payment as per time schedule as agreed to between the parties, is not entitled to the refund while the respondents for dismissal of the appeal on the ground that the appellant/OPs having failed to issue the allotment within the time are under an obligation to refund the amount. I have heard the arguments and perused the records and considered the rival contentions of the subject matter.
- Short question for adjudication in the subject matter is whether the respondent/complainant is entitled for the refund as held and directed by the District Forum.
- At this stage I may advert to the averments contained in the complaint at para 3 and the reply of the OP to this extent. Those are reproduced below:-
AVERMENT IN THE COMPLAINT PARA 3
As per the terms, the OP has agreed to allot booked plot within a period of one year with the condition that in case the OP failed to allot the same within the said stipulated period, the OP shall refund the deposited amount with interest @10% per annum.
REPLY TO THE AVERMENT CONTAINED IN PARA 3
The contents of the para no. 3 of the complaint are a matter of record. It is not denied that the as per terms of the Registration form dated 21.09.2011, it was agreed that allotment would be done within a period of one year with the condition that in case the respondent failed to allot the same within the said period, the respondent shall refund the deposited amount with interest @ 10% per annum with no further liability to pay any damages or compensation.
- From the written statement filed by the appellant/OPs it is manifestly clear that the complainant/respondent is entitled for the refund as prayed for, allotment letter not having been issued by the OPs/appellant. If that be the case there exists no infirmity in the orders passed by the District Forum.
- In the facts and circumstances of the case the orders passed by the District Forum are upheld. The appellant are directed to refund the amount to the respondents alongwith the compensation as directed by the District Forum within a period of two months from the date of receipt of this order.
- Ordered accordingly, leaving the parties to bear the cost.
- A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be forwarded to the District Forum for information.
- File be consigned to records.
(ANIL SRIVASTAVA)
MEMBER
PRONOUNCED ON
04.08.2021
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