ORAL

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                              UTTAR PRADESH, LUCKNOW

                                 APPEAL NO.  932 OF 2018

  (Against the judgment and order dated 02-05-2018 in Complaint Case

   No. 673/2015 of the District Consumer Forum, Gautam Budh Nagar)

Supertech Limited

Situated at Supertech House

B-28-29, Sector 58

District Gautam Budh Nagar

Through its Director

                                                                                      ...Appellant

                                                     Vs.

M/s Unique Traders & M/s Nikita Gold-

Silver Private Limited

Through its Proprietor Rajesh Seth

S/o Rajendra Nath Seth

R/o A-123, Sector-47 Noida

Present residing at Kali Ka Makan

Sadarpur Colony near water tank plant

Gali No. 8 Sector 45 Noida

District Gautam Budh Nagar 

                                                                                      ...Respondent

BEFORE:

HON'BLE MR. JUSTICE AKHTER HUSAIN KHAN, PRESIDENT

HON’BLE MR. MAHESH CHAND, MEMBER

For the Appellant        :  Sri Sarvesh Kumar Sharma, Advocate.

For the Respondent     :  Sri Abhishek, Advocate.              

Dated :  23-05-2018

                                            JUDGMENT

MR. JUSTICE A. H. KHAN, PRESIDENT 

          This is an appeal filed before State Commission under Section-15 of the Consumer Protection Act 1986 against judgment and order dated 02-05-2018 passed by District Consumer Forum, Gautam Budh Nagar in Complaint Case No. 673 of 2015 M/s Unique Traders & M/s Nikita Gold Silver Private Limited V/s Supertech Limited whereby the District Consumer Forum has allowed complaint and passed following order in Hindi.

“परिवादी का परिवाद,विपक्षी के विरूद्ध स्‍वीकार किया जाता है, तथा

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विपक्षी को आदेश दिया जाता है कि वह आज से ३० दिन के अन्‍दर परिवादी की जमा धनराशि अंकन ८,२४,७०५/-रूपये, का भुगतान करना सुश्चित करे  निर्णय की प्रति उभय पक्ष्‍ को नियमानुसार निर्गत की जाये “

        Feeling aggrieved with the judgment and order passed by District Consumer Forum the opposite party of complaint Supertech Limited has filed this appeal.

Learned Counsel Mr. Sarvesh Kumar Sharma appeared for appellant.

Learned Counsel Mr. Abhishek appeared for respondent.

We have heard learned Counsel for the parties and perused impugned judgment and order as well as records.

        In brief relevant facts for determination of appeal are that the respondent/complainant M/s Unique Traders & M/s Nikita Gold Silver Private Limited has filed complaint before District Consumer Forum against appellant/opposite party Supertech Limited wherein it has been stated that in year 2011 the complainant booked two units in North Eye Residential Project of opposite party after paying booking amount which was 10% of the sale price of the unit.

In complaint it has been further stated that till the end of 2011 complainant paid Rs.10,00,000/- to the opposite party for both units and obtained receipt from the opposite party for the same but latter on complainant could not deposit instalments due to death of mother.

In complaint it has been stated by complainant that the complainant went abroad in year 2011 and came back to India in the month of February, 2014. After return to India the complainant wanted to know the progress of the project from opposite party but the opposite party did not give any information to the complainant regarding progress of the project rather it informed to the complainant that the amount deposited by it has been forfeited. Now the complainant shall neither be given units

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allotted; nor amount deposited by it shall be refunded.

In complaint it has been stated by the complainant that the opposite party has acted in an unfair manner and has committed deficiency in service. Therefore, feeling aggrieved complainant has filed complaint.

Opposite party has filed written statement before District Consumer Forum wherein it has been stated that the complaint is not maintainable. The complainant has committed default in making payment. Therefore,  booking has been cancelled and the amount deposited by complainant has been forfeited.

In written statement it has been further stated by opposite party that the opposite party has neither exercised unfair trade practice nor it has committed deficiency in service.

The District Consumer Forum after having gone through pleadings of parties as well as evidence on record has allowed complaint and passed above quoted order. 

Learned Counsel for the appellant has contended that the agreed price of units in question is above pecuniary jurisdiction of District Consumer Forum. As such the impugned order passed by District Consumer Forum is without jurisdiction and against law.

Learned Counsel for the appellant has further contended that the impugned order passed by District Consumer Forum is erroneous and against terms of allotment.

Learned Counsel for the respondent has supported impugned order.

We have considered the submissions made by learned Counsel for the parties.

Perusal of complaint shows that complainant has not sought relief for getting possession of units in question. The complainant has simply prayed for refund of Rs.10,00,000/- deposited by it with interest and has claimed further relief for compensation of Rs.1,00,000/- for mental harassment as well as financial loss.

In view of relief claimed in complaint the valuation of complaint is within pecuniary jurisdiction of District Consumer Forum. As such the

complaint is within pecuniary jurisdiction of District Consumer Forum.

Clause 3 of Entry-A regarding payment contained in allotment

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  letter reads as follows:-

“That in case the Allotted/s, at any time, desires for cancellation of the allotment, if may be agreed to, though, in such a case 15% of the total cost/price of the unit shall be forfeited as cancellation charges to partially make good the loss to the Company on account of such cancellation affecting future commitments, cash flow, project re-schedulement increase in cost of project etc. and the balance, if any, shall be refunded without any interest in the following manner.”

        In view of above Clause 3 of allotment letter opposite party is entitled to forfeit 15% of the amount deposited by complainant. As such the complainant is entitled to get refund of Rs.8,50,000/- whereas the District Consumer Forum has ordered opposite party to refund Rs.8,24,705/- which is less than the amount refundable in view of above Clause 3 of allotment letter. The respondent/complainant has not filed appeal against judgment and order passed by District Consumer Forum.

In view of discussion made above we find no sufficient ground for interference in the impugned judgment and order.

The appeal is dismissed.

The parties shall bear their own costs.

Rs.25,000/- deposited by appellant under Section-15 of the Consumer Protection Act 1986 in this appeal shall be remitted to the District Consumer Forum alongwith interest accrued for disposal in accordance with law.

Let copy of this order be made available to the parties positively within 15 days as per rules.

                                                                ( JUSTICE A H KHAN )

                                                                                 PRESIDENT

                                                                      (MAHESH CHAND )

                                                                                      MEMBER                                                                                   

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