Delhi

StateCommission

A/621/2015

M/S TDI INFRASTRUCTURE LTD. - Complainant(s)

Versus

RAM CHAND SHAHDADPURI - Opp.Party(s)

KANIKA AGNIHOTRI

08 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:08.08.2018

 

First Appeal-621/2015

 (Arising out of the order dated 27.11.2015 passed in Execution No.63/2015 arising from Complainant Case No. 1391/2010 by the District Consumer Disputes Redressal Forum (VI), Vikas Bhawan, New Delhi)

 

M/s. TDI Infrastructure Ltd.,

(Formerly known as Intime Promoters P Ltd),

9, Kasturba Gandhi Marg,

New Delhi-110001.

…..Appellant

 

Versus

Ram Chand Shahdadpuri,

8, Old Mussorie Road,

Rajpur, Dehradun-248009.

.….Respondent

 

 

CORAM

 

Justice Veena Birbal, President

 

 

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.     To be referred to the reporter or not?

 

 

 

Justice Veena Birbal, President

 

1. This is an appeal challenging order dated 27.11.15 passed by the Consumer Disputes Redressal Forum-VI, Vikas Bhawan, New Delhi (in short, the “District Forum”) in Execution No.63/2015 filed in Complaint Case No.1391/2010.

       

2.     Briefly the facts relevant for disposal of present appeal are that respondent herein i.e. complainant before the District Forum had filed a complaint case i.e. CC No.1391/10 alleging therein that he had booked a flat with appellant/OP in March, 2006 in its project, namely TDI City, Kundli, Sonepat, Haryana.  The total cost of the unit booked was Rs.23,69,850/-. He had made a payment of Rs.7,91,786/- by 6.7.2007. After making payment, respondent/complainant made correspondence with appellant/OP and came to know that there was no construction activity in Tower T1 wherein he was allotted the flat.  Respondent/complainant requested for refund of money.  On his persistent visits, the appellant/OP agreed to allot him flat in G-Tower in 2009 and another allotment letter was given whereby flat No.G-1/007 in G-Block was allotted to him.  Thereafter respondent/complainant made further payments.  However, more and more amount was demanded from him without giving break ups.  Appellant/OP also charged EDC from him which was not within the terms and conditions of the agreement.  Ultimately alleging deficiency in service on the part of appellant/OP, respondent/complainant had sought directions for the refund of the amount which was extra charged from him and also sought directions for handing over the flat.

   

3.     The respondent/complainant opposed the said complaint by filing a detailed reply.  Parties also filed evidence by way of affidavits.  After hearing the parties, the District Forum decided the aforesaid case in favour of respondent/complainant vide order dated 17.5.13.

  

4.     In August 2013, respondent/complainant had filed an execution application i.e. Ex. No.264/2013 seeking execution of aforesaid order wherein notice was issued to appellant/OP.  In the aforesaid proceedings, directions were issued to appellant/OP vide order dated 3.3.14 to file detail statement of account as per order dated 17.5.13.  The matter was adjourned for few dates.  Ultimately Ld. District Forum had discussion with Mr. Ritesh of appellant/OP and respondent/complainant and it was agreed that respondent/complainant shall pay Rs. 6 lakhs to appellant/OP and schedule was drawn as to when payment was to be made. The date was also fixed for giving possession. The aforesaid order was passed on 15.4.15. The matter was kept for reporting compliance on 2.2.16.

 

5.     After the aforesaid order was passed, the appellant/OP immediately had moved an application before District Forum alleging therein that certain figures had been wrongly noted in the order dated 15.4.15 and prayer was made for modification of order dated 15.4.15 seeking direction to respondent/complainant to pay Rs.11,32,036/- instead of Rs. 6 lakhs.

 

6.     Respondent/complainant had also moved an application stating therein that appellant/OP had backed out of statement recorded on 15.4.15 of payment of Rs.6 lakhs by him. He had alleged that in compliance of order dated 15.4.15, he went to office of appellant/OP and met Mr. Ritesh with cheques of Rs.6 lakhs but he refused to accept.  He had stated that he was not living in Delhi.  It was further alleged that he was unable to get loan due to old age as such money deposited be refunded as per order dated 17.5.13 passed in CC No.1391/10.  The said application was registered as Ex. No.63/2015.  The same was taken up on 23.4.15, 29.4.15, 5.5.15, 15.5.15 and 16.7.15.  Ultimately the same was disposed of on 27.11.15 whereby the Ld. District Forum directed the appellant/OP to return the deposited amount as per order dated 17.5.13 along with 18% interest and also ordered for attachment of flat allotted to respondent/complainant and directed Commissioner of Police to execute NBWs against the Managing Director of appellant/OP and also issued directions to the Commissioner of Police for compliance of the order.

 

7.     Aggrieved with the aforesaid order, present appeal is filed.

       

8.     Ld. Counsel for appellant/OP has contended that impugned order is bad in law as the same was passed despite the fact that the matter was settled between the parties on 15.4.15 in execution No. 264/2013 and the matter was listed for reporting compliance on 2.2.16.  It is contended that fresh Execution No.63/2015 was not maintainable when in execution No.264/2013, parties had already arrived at a settlement.  It is submitted that no order was passed by the Ld. District Forum on the application of the appellant/OP which was moved in April, 2015 for correction of the amount in statement recorded on 15.4.15 in Execution No.264/13 whereas the Execution No.63/2015 of respondent/complainant was moved later and the same was disposed of vide order under challenge.  It is contended that Ld. District Forum has dealt with the matter in an arbitrary manner. It is submitted that impugned order is bad in law and is liable to be set aside.

 

9.     On the other hand, respondent/complainant has argued that need for moving fresh application arose as appellant/OP had backed out from the statement given on 15.4.15.  It is contended that same is evident from the application moved in April 2015 (date not mentioned)  before District Forum alleging therein that amount to be taken from respondent/complainant was Rs.11,32,036/- and not Rs.6,00,000/- and due to bonafide error, amount of Rs. 6 lakhs was stated on 15.4.15.  A prayer was made for correction of order dated 15.4.15. It is contended that respondent/complainant has also brought to the notice of District Forum about the intention of appellant/OP by moving an application wherein he requested for execution of second option which was given in the main order i.e. CC No.1391/2010.  It is contended that appellant/OP has backed out from statement made on 15.4.15 and is bent upon to harass respondent/complainant.

 

10.   We have heard Counsel for the parties and perused the material on record including the District Forum record.

 

11.   Perusal of record shows that Consumer Complaint filed under Section 12 of the Act i.e. CC No.1391/2010 was disposed of on 17.5.13 by the Ld. District Forum by giving following directions to appellant/OP which are reproduced as under:

“In the light of above discussion, OP has to issue a fresh demand letter for giving possession to complainant, stating the charges due on its part, to be paid, as mentioned above, and the balance, if any, to be paid by complainant.

 

OP is directed to place on record first new statement as directed above.  In case, it is not in a position to give payment, and possession it should return the entire payment so far made with interest of 18% as prayed by complainant.

 

The order shall be complied within 30 days from the receipt of the copy of the order; otherwise action can be taken under Section 25/27 of the Consumer Protection Act.”

 

 

12.   The material on record shows that the District Forum while deciding CC No.1391/2010 vide aforesaid order had directed the appellant/OP to issue a fresh demand letter for giving possession to the respondent/complainant stating charges due on his part and was also directed to place on record statement of account.  It was further ordered that if it was not in a position to give payment and possession, it should return the entire payment so far made along with interest @ 18%.

 

13.   It appears from the material on record that statement of account was supplied by appellant/OP but the parties could not finalized the same.  Thereupon respondent/complainant had filed an Execution Application No.264/13 on 1.8.13.  On 18.2.14, notice was issued and appellant/OP sought time to file statement of account in compliance of order dated 17.5.13.  However, the same was not filed.  On 19.5.14, last opportunity was given to do the needful subject to cost of Rs.5,000/-.  Thereafter matter went on for number of dates.  Ultimately on 15.4.15, the District Forum recorded the statement of parties wherein it was agreed that Rs.6 lacs will be paid by respondent/complainant for delivery of the possession and dates of payment were also given.  The date for handing over of possession was also given.  The matter was listed for compliance on 2.2.16.  The said order reads as under:

 

“Case taken up today on request of both the parties.  The matter is discussed in presence of Mr. Ritesh of TDI.  As a result of discussion, OP agrees to charge Rs. 1 lakh for car parking in place of 1.75 in the statement dated 20.10.13.  The net payable amount is reached at 6 lakh 5 thousand excluding stamp charges to be payable at the time of registration.

 

It is decided that

 

(a) Complainant will deposit Rs. 1 lakh with TDI by Bank Transfer within 1 week from today.

 

(b)   The possession complete in all respects will be in September, 2015 after remaining all shortcomings.

 

(c)    Another instalment of Rs.1 lakh will be paid by Ist August, 2015.

 

(d)   The balance 4 lakh will be paid by him as under:

 

DD Cheque of following amounts:

 

1. lakh dated 17/4

 

1.5 lakh dated 31/7

 

1. lakh dated 15/9

 

2. lakh dated 31/12
3.  

                       6 lakh

 

                 To report compliance on 2/2/16.”

 

14.   After few days of aforesaid order, appellant/OP had moved an application before the District Forum stating therein that in the statement recorded on 15.4.15 wrong figure of Rs.6 lacs has come and the amount to be taken from respondent/complainant is Rs.11,32,036/-.  By filing the aforesaid application, it is clear that the appellant/OP was not willing to comply with the statement made on 15.4.15.  The appellant/OP knowing fully that District Forum has no power to review its order, despite that the aforesaid application was filed.  The same shows the intention of appellant/OP in not agreeing on first option as given in order dated 17.5.13 passed in CC No.1391/10.

 

15.   The stand of the respondent/complainant is that he had taken the cheques for the payment of Rs.6 lacs as per statement dated 15.4.15 but the same were not accepted by appellant/OP.  Accordingly he moved an application before District Forum stating therein that appellant/OP had backed out from statement made on 15.4.15 and 23 months had passed and order passed in CC No.1391/10 was not complied with, hence he requested for execution of second option of refund of money which was available to him as per order passed in CC No.1391/10.

 

16.   Material on record shows that fed up with the delaying tactics of appellant/OP, respondent/complainant had moved an application requesting for execution of second option as provided in main order dated 17.5.13.  It may be noticed that the order passed in execution application i.e. Ex. No. 264/13 was still pending for reporting compliance when aforesaid application was filed by respondent/complainant.  There was no need for giving any fresh number to it i.e. Ex No. 63/2015 as has been done by Ld. District Forum. Anyhow by giving it a fresh number, it cannot be said that any illegality is committed by District Forum as is alleged.  The appellant/OP was duly heard in the aforesaid application i.e. Ex No.63/2015 and after hearing the parties, the impugned order is passed.  The need for passing impugned order arose as the appellant/OP was not willing to comply with its statement of giving possession of flat on payment of Rs.6 lacs and was demanding more.  Further while passing impugned order, Ld. District Forum has not travelled beyond the directions given in CC No.1391/10 which was disposed of on 17.5.13.  For execution of second option given in the said order, respondent/complainant was compelled to move another application i.e. Ex. No. 63/2015. 

 

 17.  In these circumstances, we do not find any illegality in the impugned order wherein it is held that appellant/OP by his conduct has forfeited the first option as given in order dated 17.5.13 in CC No.1391/10.  By the impugned order, the District Forum has given directions to appellant/OP for refund of amount deposited by respondent/complainant with interest @ 18% from date of complaint till payment. 

 

18.   Respondent/complainant has submitted that he is about 83 years of age and he comes from Dehradun on every date of hearing and has spent about 12 years in litigation.  He has also stated having undergone heart surperies and that he has no son.  He is living out of Delhi with his daughter.  He is fed up of litigation.  To give quietus to the matter, he is willing to accept the refund of money with interest @ 12% p.a.  He states that he has no objection if interest awarded by Ld. District Forum is reduced from 18% p.a. to 12% p.a. With the consent of respondent/complainant, we reduce the interest from 18% to 12% from date of complaint till realization. Accordingly we direct appellant/OP to refund the amount deposited by respondent/complainant with interest as is stated above within 8 weeks of receipt of this order by way of demand draft in the name of appellant/OP before the District Forum failing which District Forum shall take coercive measures against appellant/OP for compliance of aforesaid directions.

 

19.   The other directions given in the impugned order for attachment of flat allotted to the respondent/complainant and for execution of NBWs against MD of appellant/OP are not necessary for the time being.  The same stands deleted from the impugned order.

 

20.   Impugned order stands modified to the extent as is stated above. Appeal stands disposed of accordingly.

 

21.   A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information.  The record of the District Forum be also sent back forthwith.  Thereafter the file be consigned to record room.      

 

 

 (Justice Veena Birbal)

•  

 

 

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