Rajasthan

StateCommission

A/1437/2016

M/s Mahima Real Estate Pvt. Ltd.through Authorised Representative Digvigya Singh - Complainant(s)

Versus

Sameer Rajoria s/o B.Ramniwas Rajoria - Opp.Party(s)

Umesh Shrangi

02 Feb 2017

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 1437/2016

 

M/s. Mahima Real Estate Pvt. Ltd. F-1 Govind Marg, Raja Park,Jaipur through authorized representative Digvijay Singh,

Vs.

 

Sameer Rajoria s/o B.Ramniwas Rajoria r/o c/o P. Kumar, G-1/172 RIICO Industrial Area,Jaipur.

 

Date of Order 2.2.2017

 

Before:

Hon'ble Mrs. Justice Nisha Gupta- President

Hon'ble Mr.K.K.Bagri-Member

Hon'ble Mrs. Sunita Ranka -Member

 

Mr. Umesh Shrangi counsel for the appellant

Mr.R.D.Sharma counsel for the respondent

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

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This appeal has been filed against the judgment of the District Forum, Jaipur 3^rd dated 4.10.2016 whereby the claim has been allowed against the appellant. The matter has come upon application under section 5 of the Limitation Act as the appeal has been filed after delay of 6 days but looking to the facts mentioned in the application the delay is condoned.

 

As the respondent has put an appearance and the record of Forum below is available with the Commission the matter has been heard finally at the admission stage.

 

The contention of the appellant is that the complaint was filed by Mr. Sameer Rajoria whereas affidavit of Mr. Prahalad Kumar Sharma has been filed as power of attorney holder but no document as regard to power of attorney was placed on record. Hence, on this ground alone the complaint should have been dismissed.

 

Further the contention of the appellant is that the complainant respondent was defaulter. He has not paid the final instalment on time inspite of the fact that intimation for possession was given to him on 24.3.2011 and thereafter number of reminders have been sent. Hence, the appellants

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were entitled for interest as well as holding charges and inspite of number of reminders when payment has not been made, the flat was canceled vide letter dated 4.4.2013. Hence the claim should have been rejected.

 

Per contra the contention of the respondent is that he is not defaulter. On 24.3.2011 an intimation for possession was given to him but no completion certificate was sent to him and in absence of completion certificate the guarantor bank was not ready to release the amount. Hence, he could not be held to be defaulter. Inspite of the notice Ex. A-4 completion certificate has not been sent to him and just to pressurize him cancellation letter Anx. R-5 was issued. The Forum below has rightly passed the claim and no interference is needed.

 

Heard the learned counsel for the parties and perused the impugned judgment as well as original record of the case.

 

It is true that the original complaint was filed by Sameer Rajoria and in evidence affidavit of Mr. Prahalad Kumar Sharma was filed as power of attorney holder of Sameer Rajoria. Hence, he was a competent witness and rightly not been discarded by the Forum below. The copy of power of

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attorney is also on record of Miscellaneous Case No. 93/2013. Hence, arguments in this regard are not sustainable and complaint in the form it has been filed is competent.

 

The contention of the appellant is that inspite of reminders money has not been paid. The respondent is defaulter hence, cancellation has rightly been done and his alternate contention is that vide Anx. R-6 he received the completion certificate on 29.3.2012. Hence, he could not be made liable for the interest or holding charges thereafter but the contentions are not fruitful.

 

It is true that vide Anx. R-6 the appellant has received the completion certificate on 29.3.2012 but this certificate was never handed over to the respondent. The appellants have served notice Ex. R-2 on 24.3.2011 for taking the possession of the flat without having completion certificate which is in itself not only deficiency on the part of the appellant but also unfair trade practice. Thereafter Ex. R-3, R-4 & R-5 reminders were also sent and vide Anx. R-5 the allotment was cancelled but in none of the communiction completion certificate was sent to the complainant respondent inspite of his notice Anx. 4. This is further deficiency on the part of the appellant. Price list and

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Construction Linked Payment Plan has also been placed on record in which term no. 3 specifically stated that the customer will pay the amount within 30 days from the date of issue of possession certificate.

 

The counsel for the appellant has tried to convince the court that certificate and intimation are similar terms but by no stretch of imagination it could be accepted. Where there was a specific condition between the parties that from the date of issue of possession certificate the customer will liable to pay the rest amount it was deficiency on the part of the appellant to label the customer to be defaulter and cancellation of the unit and the Forum below has rightly considered the above facts.

 

In view of the above there is no merit in this appeal not worth acceptance and stands rejected.

 

(Sunita Ranka ) (K.K.Bagri) (Nisha Gupta )

Member Member President

 

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