Haryana

StateCommission

A/408/2015

BANSI LAL KATARIA - Complainant(s)

Versus

PAL INFASTRUCTURE PVT.LTD. - Opp.Party(s)

UMAKANT KATARIA

04 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                First Appeal No.408 of 2015

                                                          Date of Institution: 04.05.2015                         Date of Decision: 04.04.2016

 

Bansi Lal Kataria, # 234, Urban Estate-II, Hisar, Haryana.

 …..Appellant

                                      VERSUS

The Pal Infrastructure Pvt. Ltd. through its Directors Pal Tower, IIIrd Floor, MG Road, Sikanderpur, Opposite Metro Pillar No.53, Gurgaon-122002.

Through its directors:

Sh.Manav Chandra R/o H.No.11, Akash Neem Marg DLF Phase-II, Gurgaon.

Sh.Rajesh Yadav S/o Harpal Yadav Bhondsi Jail, sohna road (Through its Jailor)

          …..Respondents

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.                                   

For the parties:  Mr.Umakant Kataria, Advocate counsel for the appellant.

Mr.Gaurav Gupta, Advocate counsel for the Respondents.

O R D E R

R.K.BISHNOI, JUDICIAL MEMBER :-

          It is alleged by the complainant that he booked a residential flat with the Opposite party (O.P). measuring 1050 sq. feet with advance payment of Rs.2,55,000/- vide cheque No.147474 dated 18.10.2006.He made further payments as detailed below:-

                   “Amount              Cheque No.                  Dated

                    2,33,250/-           800664                         06.02.2007

                    1,00,000/-           618010                         16.01.2008

81,300/-               820677                         25.01.2008

3,76,600/-           cash                              14.12.2000”

O.P. allotted apartment No.C-304 to him. The O.P. got license for the project on 30.04.2007, whereas it started collecting money from the public since 2006. The legal obligation was to offer the possession of flat within 30 months from the date of booking i.e. 18.10.2006, but, O.P. failed to fulfil his obligation.  He requested several times to refund the deposited amount i.e. Rs.10,46,000/- with interest, but, it refused to refund the amount and threatened to cancel booking.

2.      O.Ps. filed reply controverting his averments and alleged that he paid only advance amount of flat and did not pay entire amount. He himself defaulted in making payments. Objections about jurisdiction etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, the learned District Consumer Disputes Redressal Forum, Faridabad (in short “District Forum”) allowed the complaint vide impugned order dated 12.03.2015 with following directions:-

“The respondent is directed to refund an amount of Rs.10,46,000/- to the complainant with interest @ 9% p.a. from the date of deposition till its realization within 30 (thirty) days from the date of receipt of this order and also to pay Rs.5500/- as compensation towards mental agony, harassment alongwith Rs.2200/- as litigation expenses.”

4.      Feeling aggrieved therefrom, the appellant-complainant has preferred this appeal for enhancement of compensation.

5.      Arguments heard.  File perused.

6.      Learned counsel for appellant vehemently argued that he is pursuing this matter since 10 years. Despite deposit of Rs.10,46,000/- respondent did not deliver the possession. Amount of compensation awarded by learned District Forum qua mental harassment and litigation expenses is very meager, so the same be enhanced to Rs.Five lacs and Rs.55,000/- respectively.

7.     This argument is devoid of any force.  As per opinion of Hon’ble National Commission in First appeal No.06 of 2014 in  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27.11.2014 complainant cannot ask for more compensation because he was also at fault. It is opined by Hon’ble National Commission in this case that if both the parties are at fault then complainant cannot ask for interest.  For ready reference Para No.10 of the said judgement is reproduced as under:-

“It is an admitted fact that both parties are at fault in this case.  As per above findings of the State Commission, admittedly the respondent had not developed the site and was not in a position to deliver the possession.  Be that as it may, the appellants also in this case were defaulters. When appellants themselves were the defaulters, therefore under such circumstances, they are not entitled for any interest.  On this issue, we are in full agreement with the reasonings given by the State Commission.”

8.     If the he same analogy is applied in this case, then complainant-appellant is not entitled for enhancement.  As per payment plan he was to deposit 10% of BSP at the time of booking, 10% of BSP within 30 days therefrom, 10% of BSP within 60 days from booking nd 10% of BSP within 90 days for booking.  As per complainant he deposited Rs.2,55,000/- on the date of booking i.e. 18.10.2006.  Thereafter he made payment as detailed below:-

“Sr.No.	Mode payment	Dated	Bank Name	Amount
1.	Vide cheque No.800664	06.02.2007		2,33,250/-
2.	Vide cheque No.618010	16.01.2008	PNB, Hisar	1,00,000/-
3.	Vide Cheque No.820677	25.01.2008	PNB Hisar	81,300/-
4.	Cash	14.12.2009		3,76,600/-

                “

From the perusal of this table it is clear that he did not deposit the amount as per payment plan.  It is alleged by complainant that O.P.-respondent never asked to deposit the remaining amount. He deposited amount as and when demand was raised.  There is no clause in the agreement vide which O.P. was to raise specific demand. Complainant was to make payment as per this agreement.  When he has not made payment as per agreement, he is not entitled for further relief.  As O.P. has not challenged the order about refund and interest, so the same is not being looked into.  The learned District Forum has awarded reasonable compensation for mental harassment and litigation expenses because complainant himself was at fault. There is no ground for enhancement of compensation. Resultantly appeal fails and the same is hereby dismissed.

 

April 04th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.