NCDRC

NCDRC

RP/426/2006

M/S RAJENDER INDIA LTD. - Complainant(s)

Versus

M/S MAHENDRA AND CO. - Opp.Party(s)

RAJESH AGGARWAL

01 Apr 2010

ORDER


NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIREVISION PETITION NO. 3214 OF 2005
(Against the Order dated 11/08/2005 in Appeal No. 535/1996 of the State Commission Delhi)
1. M/S MOHINDRA AND CO.C-85 NEW SUBZI MANDI AZADPUR DELHI 110033 ...........Petitioner(s)
Versus
1. M/S RAJENDRAS(INDIA)LTD.N-52A CONNAUGHT PLACE NEW DELHI NEW DELHI 110001 ...........Respondent(s)

BEFORE:
HON'BLE MR. JUSTICE B.N.P. SINGH ,PRESIDING MEMBERHON'BLE MR. S.K. NAIK ,MEMBER
For the Petitioner :NEMO
For the Respondent :NEMO

Dated : 01 Apr 2010
ORDER

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These three revision petitions seek to challenge one and the same order dated 8th of November, 2005 of the State Consumer Disputes Redressal Commission, Delhi (for short ‘State Commission’), by which the State Commission held that there was no infirmity in the order passed by the Consumer Disputes Redressal Forum-II, New Delhi (for short ‘District Forum’) insofar as the direction to refund the amount deposited by the complainant was concerned. At the same time, however, it held that interest awarded @ 18% per annum was not permissible under Section 14 of the Consumer Protection Act, 1986 but taking notice of the fact that the amount deposited by the complainant was lying with the opposite party/builder since 1988, it ordered the payment of a lump sum amount of Rs.1 Lakh. Aggrieved against this modification of the award rendered in his favour by the District Forum, the complainant (M/s Mohindra & Co.) has filed Revision Petition No. 3214 of 2005, praying for a direction to the opposite party/builder to refund the deposited amount of Rs.68,800/- with interest @ 24% per annum from the date of deposit till its payment. The opposite party/builder (M/s Rajendras (India) Ltd.) on the other hand seeks quashing of the order passed by the State Commission in the two other revision petitions, i.e. Revision Petitions No. 426 of 2006 and 506 of 2006, filed by them. After having heard learned counsel for the parties and on perusal of the records in hand, we find that the booking of a 100 sq. ft. space no. RJT-2223 at Rajendras Jaina Tower-III by the complainant and its allotment by the opposite party/builder is not in dispute nor is there any dispute with regard to the payment of Rs.68,800/- by the complainant to the opposite party/builder between 4th of March, 1987 to 8th of April, 1988. However, the dispute arose when, on completion of premises, the opposite party/builder issued a letter to the complainant/allottee on the 3rd of August, 1990, asking him to pay the balance installments together with allied charges and other dues and take possession of the space so allotted. As per the complainant/allottee, it was only then that it came to their notice that the space allotted to them had been occupied by a third party, namely, the Himachal Cooperative Bank Ltd. It was in this background that the complainant/allottee alleging deficiency in service by the opposite party/builder filed a complaint before the District Forum. The complaint being resisted by the opposite party/builder, the parties were directed to adduce evidence in their support. After a perusal of the evidence produced before it and on appraisal thereof and also on consideration of the arguments advanced before it by the learned counsel for the parties, the District Forum over-ruled the objections raised by the opposite party/builder on the point of limitation as also their objection with regard to the maintainability of the complaint. On the merits of the complaint, the District Forum rejected the submissions of the complainant that vide letter 17th of September, 1990 a protest was lodged by him with the opposite party/builder, which was followed by another letter dated 5th of February, 1991 and finally through a lawyers notice on 10th of September, 1992; for failure on the part of the complainant to produce any evidence with regard to the dispatch of such letters which had been flatly denied by the opposite party/builder. The District Forum had further rejected the contention of the complainant that the opposite party/builder had offered possession of the space on a floor higher than the floor agreed to be sold. According to the District Forum, the dispute with regard to the change of floor had been raised by the complainant to wriggle out of his contractual obligation and avoid purchasing the property and thus, the District Forum virtually found no merit in the allegations. However, taking into account the fact that the opposite party/builder had retained the deposited amount of the complainant and had failed to inform him formally about the cancellation of the allotment of space, it ordered the refund of Rs.68,800/- with interest @ 18% per annum w.e.f. 06.01.1994. However, both the complainant as well as the opposite party/builder were not satisfied with the order passed by the District Forum and both sides took up the matter before the State Commission in cross appeals filed by them. As already stated, the State Commission did not find any infirmity in the order passed by the District Forum but converted the award of the District Forum into a lump sum payment of Rs.1 Lakh, which has yet again been challenged by both sides in these sets of revision petitions. From the complainant’s side, Mr. Mridul Choudhary, Advocate, has again tried to raise the issue pertaining to whether the complainant was allotted space no. RJT-2223, location of which was on the upper ground floor (above ground floor) or on the first floor and has contended that the document produced by the opposite party/builder at page 37 of their RP No. 426 of 2006 is not the original but a fabricated document or else he submits there was no reason as to why despite the direction issued by the District Forum the opposite party/builder failed to produce the original application which is in their possession. He has further referred to the licence deed, which refers to upper ground above ground floor, to substantiate the complainant’s claim that the allotment of space indeed was on the upper ground floor and not on the first floor. This issue, however, has been dealt with at length by the District Forum and the thrust of his complaint being on the refund of the deposited amount of Rs.68,800/- with compensation and damages etc., the issue with regard to whether there was any change of floor cannot be gone into at this stage of revision. Even in his revision petition the thrust of the relief sought centers around refund of Rs.68,800/- with interest @ 24% per annum. The District Forum had awarded interest @ 18% per annum, which the State Commission has converted into a lump sum payment. On a deposit of Rs.68,800/- the State Commission has ordered the payment of Rs.1 Lakh, which, in our view, is just and fair and needs no interference. Learned counsel for opposite party/builder in support of his revision petitions has referred to clause 9 of the licence deed and has contended that time was of essence in the agreement between the parties and there was a clear stipulation that immediately on notification by the builder with regard to the completion of project and the premises being ready for occupation, the licencee (complainant in this case) was required to pay all the arrears demanded within seven days, on failure of which the builder was within his right to cancel the licence deed and allot the space to any other party. Referring further to clause 29, which re-emphasize that time is the essence of this contract and refund could be given only after deducting 25% of the total deposit, the learned counsel has submitted that the order passed by the fora below directing more than the total refund is not sustainable. We are afraid, this contention of the learned counsel for opposite party/builder also has to be rejected as the opposite party/builder has failed to produce any evidence that soon after the complainant stopped payment of any installment after the 8th of April, 1988 until the 3rd of August, 1990 it had asked for any deposit of any installment from the complainant/allottee. It also failed to produce the original allotment letter, which is in its possession, as per the direction of the District Forum. Thus, in our view, the opposite party/builder will not be entitled to invoke clause 29 of the licence deed. The award passed by the State Commission being quite appropriate, just and fair, we do not find any irregularity or illegality in the same and, therefore, both the revision petitions filed by the opposite party/builder are also dismissed. In totality, all the three revision petitions being bereft of any merit are ordered to be dismissed, however, with no order as to cost.



......................JB.N.P. SINGHPRESIDING MEMBER
......................S.K. NAIKMEMBER