STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 18.02.2022
Date of final hearing: 10.10.2024
Date of pronouncement: 21.11.2024
First Appeal No.58 of 2022
IN THE MATTER OF:-
M/s JOP International Ltd., Regd. Office 45/77 Punjabi Bagh (West), New Delhi-110026, through its Director/authorized signatory-Bharat Agarwal. …..Appellant
Versus
Rajender S/o Amar Singh, R/o H. No. 800, Nangal Kalan, District Sonipat.
…..Respondent
Branch Manager, JOP International Ltd., JOP Palms, Sector-28, near IMT Bye pass, Rohtak.
…..Performa Respondent
CORAM: Sh. Naresh Katyal, Judicial Member.
Sh. S.C. Kaushik, Member.
Argued by:- Mr. Vishal Garg Narwana, counsel for appellant.
Mr. Amit Sheoran, counsel for respondent No.1.
(Name of respondent No. 2 already deleted from array of respondents).
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Challenge in this appeal No.58 of 2022 has been invited to legality of order dated 02.02.2021 passed by learned District Consumer Disputes Redressal Forum-Rohtak (In short “District Consumer Commission”) in complaint case No.110 of 2018 vide which complainant’s complaint has been allowed.
2. Complainant booked 2BHK flat at JOP Palms-Rohtak with OPs and deposited Rs.3,00,000/- with OPs in cash on 25.01.2012 and OPs issued receipt No.JOP Palms 191. At the time of booking, OPs told him that they will issue allotment letter of residential flat allotted to him within period of six months and actual physical possession of flat duly completed in all respects will be delivered to him within period of two years from date of booking. He further deposited Rs.3,89,415/- against part payment of said flat vide receipt No.JOP Palms/191/01 dated 16.05.2013. Thereafter, he deposited Rs.2,75,766/- through cheque No.126981 vide receipt No.JOP PALMS/191/02 dated 10.05.2014. Few months after booking, OPs stopped construction work. He contacted OPs to complete construction and deliver possession of flat to him, but OPs did not start construction work even after passing of more than six years. He requested OPs to refund Rs.9,65,181/- already deposited by him with them, but they refused to accept his above genuine request. As per plea; act of OPs is illegal and amounted to deficiency in their service. Complaint has been filed for issuance of direction to OPs to refund him Rs.9,65,181/- with interest, compensation and litigation expenses.
3. In response, OPs raised contest by pleading that on 25.01.2012 complainant-Rajinder Singh was got registered and payment receipt for registration amount of Rs.3,00,000/- was issued. Thereafter, he was asked in March-2013 to opt from available options and he opted for construction linked payment plan on 16.05.2013 and paid Rs.3,89,415/- to complete 25% booking amount. On 10.05.2014, third due installment was also paid for Rs.2,75,766/-. As per plea; total payment of Rs.9,65,181/- has been paid. It is pleaded that thereafter due installments were never paid in spite of several reminders from time to time and as on 01.12.2017; Rs.10,71,195/- was pending due from him, as per agreement dated 26.12.2014. Out of several registered post reminders in year-2014 onward, three were received back with postal remarks “addressee has left the village without giving address”. Now, complaint has been filed by someone, pretending to be Rajinder Singh through advocate for claiming refund of deposited amount with interests etc. It is pleaded that signatures on complaint and supporting affidavit do not match with signature in company’s record. Even mobile No.893194862 in company record has also been differently represented as 9416574644. Concealment of facts have been made to misguide and misrepresent the factual position. Other contents of complaint were pleaded as wrong and thus denied with prayer to dismiss the complaint.
4. Parties to this lis led evidence, oral as well as documentary.
5. On analyzing the same; learned District Consumer Commission-Rohtak allowed the complaint vide order dated 02.02.2021 (impugned herein) and directed OPs to refund Rs.9,65,181/- with interest @ 9% p.a. from date of respective deposits with it till actual realization and also to pay him Rs.10,000/-as compensation and Rs.5,000/- for litigation expenses.
6. Feeling aggrieved; OP No. 1 has preferred this appeal.
7. Learned counsel for parties has been heard at length. With their able assistance; record too has been perused.
8. Learned counsel for appellant has urged that impugned order passed by learned District Consumer Commission is grossly illegal on all fronts; be it legal or factual. It is contended that despite paying Rs.9,65,161/-, towards cost price of 2 BHK flat; complainant defaulted to make payment of remaining installments. Rs.10,71,195/- was outstanding due towards him as on 01.12.2017, thus it is urged that complainant cannot be allowed to take benefit of his own wrong, while claiming refund of deposited amount. Further it is urged that interest component (9% p.a.) from date of respective deposits was too heavy and contrary to settled principle. It is urged that subject flat was booked by complainant on 25.01.2012 whereas this complaint was filed on 09.03.2018, which is time-barred and learned District Consumer Commission has not looked this aspect of matter.
9. Per Contra, learned counsel for the respondent/complainant has contended that impugned order is outcome of meticulous appreciation of all relevant facets of the case by learned District Consumer Commission and same warrants no interference.
10. Admittedly, complainant has paid Rs.9,65,181/- towards cost of flat to OPs. Possession of subject flat was to be given to complainant within three years (30 months plus six months grace period) as per terms and conditions, appended along with letter of allotment-Ex.C-1 which has got the light of its day on 19.05.2014. Period of three years thereafter i.e. 30 months with grace period of six months had elapsed on 19.05.2017. Admittedly, as on day of filing of complaint (09.03.2018); the construction was not complete, so possession of subject flat was not given to complainant. OPs/appellant has not led any evidence, worth the name, to prove that project in question stood completed. Complainant has been deprived from physical possession of allotted flat. Meaning thereby, OP/appellant/builder has created all sordid conditions for complainant and landed him in a vulnerable state by enriching itself from his amount. It is no more res-integra that allottees cannot be made to wait for possession of flat allotted to her/him/them for infinite period. There can be no exception qua above observation in so far present complaint is concerned. Admittedly, the subject flat was booked by complainant in early 2012 (25.01.2012) and he deposited Rs.3,00,000/- with OPs/appellant on 25.01.2012 vide receipt Ex.C-2. Vide receipt Ex.C-3 he further deposited Rs.3,89,415/- on 16.05.2013 and made another deposit of Rs.2,75,766/- on 10.05.2014 vide receipt Ex.C-4. He has filed complaint after lapse of more than six years to voice his grievance against OPs. Needless to mention that since OPs has/have received total amount of Rs.9,65,181/- by 10.05.2014 from complainant. In wake of this fact/evidence, in firm opinion of this Commission; for each passing day, hence after the due date meant for delivering possession of subject flat to complainant, qua which, OPs have faulted and failed to deliver; there would be fresh cause of action accrued to him. In any case, from glance at receipts Ex.C-2 to Ex.C-4; it is visible in unambiguous manner that complainant had made payments up to 10.05.2014 and this process of making payment had begun from 25.01.2012 (Ex.C-2). Even if this complaint was filed on 09.03.2018 i.e. after expiry of two years reckoning from 10.05.2014 (last payment made by him to OPs), yet in view of above observation of this Commission that cause of action accrued to him was continuous and accruing in his favour on each passing day, hence after 10.05.2014 also, therefore, this complaint is well within limitation period. More so, OPs are not justified in raising this contention qua limitation as a shield to cover its own lapse of not completing the construction within time frame work of three years as per terms and conditions appended with letter of allotment-Ex.C-1 and time was the essence of contract. Consequently, contention of learned counsel of appellant centered on limitation stood repelled. Collectively, from all relevant facets of this case which are writ large apparent and ex-facie proved too, it is held in no uncertain terms that deficiency on the part of appellant is proved. Allied contention of learned counsel for the appellant that rate of interest (9% p.a.) as per order dated 02.02.2021 was too heavy has no credence in view of the gross lapse on the part of OPs, not to deliver possession of subject flat to complainant despite receiving Rs.9,65,181/- being part payment towards cost of allotted flat and instead made him (complainant) desperate to file consumer complaint. Consequently, in view of all these ground realities; this Commission observes that impugned order dated 02.02.2021 to refund Rs.9,65,181/- to complainant with 9% p.a. interest from the date of each respective does not carry any error.
11. As a sequel to above discussion; this Commission has arrived at an inescapable conclusion that this appeal must fail. It is accordingly dismissed. There is no illegality or perversity in impugned order dated 02.02.2021 passed by learned District Consumer Commission-Rohtak in complaint No. 110 of 2018 titled as Rajender Vs. M/s JOP International Ltd. and another and same is accordingly upheld and maintained.
12. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
13. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
14. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The Judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
15. File be consigned to record room.
Date of pronouncement: 21st November, 2024.
S.C. Kaushik Naresh Katyal
Member Judicial Member
Addl. Bench Addl. Bench
