| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.360/10 Shri Lalit Kumar Sharma R/o E-838, Lohia Gali No.4 East Babar Pur, Shahdara Delhi-110032. .…Complainant VERSUS The Managing Director Niho Construction Ltd. X-22, First Floor Hauz Khas, New Delhi. ….Opposite Party Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER Date of Institution:02.06.2010 Date of Order :25.04.2023 Member: Shri U.K.Tyagi 1. Complainant has requested to pass an award directing Managing Director – NIHO Construction Ltd. (hereinafter referred to as OP) (i) to issue allotment letters in respect of shop LG-21 in the Mall at Scottish Garden, Indirapuram Ghaziabad UP; (ii) to provide compensation to the tune of Rs. One Lac towards mental and physical pain, torture and agony; (iii) Rs.11,000/- as litigation expenses . 2. Brief facts of the case are as under:- The complainant booked the above mentioned shop in the year 2006 and paid Rs.2,37,000/- against the booking of the said shop. The complainant was not given any allotment letter. The OP assured that the construction of the said Mall shall be completed shortly as he got sanction from the authorities concerned. The OP, at his own allotted the shop on 1st Floor i.e. to FF-4H, “in the said Mall” to the complainant which was cheaper by Rs.500/- per sq. ft from the earlier shop. The complainant had sent a letter informing vide letter dated 14.06.2007 that since he had been allotted lower Ground Floor shop for which initial amount had been deposited. He further mentioned that instead of LG Floor shop, the OP himself allotted shop at first floor and raised demand accordingly. The complainant further stated vide above mentioned letter that the construction of said shop was to be completed within one year from the date of commencement of construction and it was expected to handover the possession by June 2007. But after visiting the site, it was found that only digging work is completed so far. Again a letter dated 16.06.2007 was sent for confirming the earlier allotment. Lastly, the complainant got the legal notice dated 02.06.2008 served upon the OP for the allotment of shop No. LG-21, since the OP had backout from the earlier allotment, as such he caused wrongful gain to himself and caused wrongful loss to the complainant. Hence, the complaint. - OP, on the other hand, filed its reply raising interalaia preliminary objections. The OP contended that the complainant had booked the shop for commercial purpose. Hence the complainant does not fall under the purview of CP Act (section 2 (d)(1)) of CP Act, 1986, therefore it is liable to be rejected on this ground only.
- It was further maintained by OP that complaint is bad for non-arraignment and mis-arraignment of parties. It was further exhorted that the contents of the complaint are denied to the extent, the same are contrary to facts/record. Unless these are specifically admitted by the OP, may be treated as deemed to have been denied. It was further stated that the complainant was one of initial persons who booked the shop and he was confused on the particular booking. Later on, he himself changed the unit from earlier booking at Lower Ground to 1st floor. At his request, the OP allotted FF-4H, in the said Mall and accordingly, demand letters for the first floor were sent. It is also denied that the allotment letter was not issued rather, the complainant did not come to collect the allotment letter.
- Both the parties filed written submission and evidence in affidavit. Written Statement is on record so is rejoinder. The complainant and OP, both did not appear on 06.11.2020, 06.05.2021, 21.12.2021, 31.01.2022, 21.02.2022, 17.05.2022, 01.06.2022, 09.01.2023 and 14.02.2023 despite notice to both the parties for 14.02.2023. The said notice stands served on both the parties as per report of track-record. Being an old case of 2010, it was considered appropriate to conclude the case as both the parties have submitted their written submissions and the same are on record.
- This Commission has gone into the entire gamut of issues and due consideration was given to the written submissions. From the record made available to this Commission, it seems that dispute is with respect to allotment of a particular shop and thereafter change in allotment of the shop at first floor. It is true that the complainant had booked the unit No. LG-21, Lower Ground Floor of “The Mall” at “Scottish Gardens”. The OP had issued receipt for Rs.1,15,000/- for the said unit i.e. LG-21 vide said letter/receipt dated 23.06.2006. Again the OP issued receipt dated 04.07.2006 for the amount of Rs.1,37,000/- mentioned therein for the said unit i.e. LG-21.
- Thereafter, the OP issued demand letter dated 22.01.2007 for making the instalments for the Unit FF-4H, First Floor in the said “The Mall”. Many more demand letters dated 04.04.2007, 28.05.2007 were issued for making the due payments in respect of FF-4H. The OP has not produced any communication for the change of unit from LG-21 to FF-4H. As regards to payment of Rs.2,37,000/- made by complainant as stated above, it was duly acknowledged by OP.
- The OP vide its written statement raised objection on the maintainability of complaint in this Commission on the ground of commercial unit, booked in The Mall. The complainant vide its replication rebutted the claim of OP on the ground that the Shop/unit was booked for the livelihood of the complainant. This Commission does feel that the objection revised by OP is not found convincing.
- This Commission further examined minutely written arguments of both the parties which were filed in 20.02.2013. No averment was found whether the said shop/unit under reference is available for re-allotment/direction for allotment as prayed by the complainant. At this stage, it is very difficult for the Commission to issue direction for allotment. There is no denial that the OP is short of obligation which amounts to deficiency in service. In these circumstances we are convinced that to meet the ends of justice, direction be given to the OP to refund payment of Rs.2,37,000/- alongwith interest @ 9% per annum from the date of institution of this case in this Forum within 3 months from the receipt of this order failing which the rate of interest shall be levied @ 10% per annum till its realisation. Additionally, the compensation of Rs. One Lakh towards mental harassment/legal expenses is also to be paid by OP.
File be consigned to the record room after giving copy of the order to the parties as per rules. | |
