Delhi

StateCommission

RP/30/2010

M/S ANSAL HOUSING & CONSTRUCTION LTD. - Complainant(s)

Versus

SHASHI BANSAL - Opp.Party(s)

09 Jan 2017

ORDER

IN THE STATE COMMISSION : DELHI

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

 

 

Date of Decision: 09.01.2017

 

 

Revision Petition No.30/2010

(Arising out of the order dated 11.11.2009 passed in Complaint Case No.1594/2005 by the District Consumer Redressal Forum-VI, New Delhi)

 

 

In the matter of:

 

 

M/s. Ansal Housing & Construction Limited,

Through its Managing Director,

15, UGF, Indraprakash,

21, Barakhamba Road,

New Delhi

 

                       ....Petitioner

 

Versus

 

Ms. Shashi Bansal,

W/o Shri Raja @ Daya Nand,

C-12/118, Yamuna Vihar,

New Delhi -110053

....Respondent

 

 

CORAM

Justice Veena Birbal, President.

Ms. Salma Noor, Member

 

 

 

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 a revision petition wherein prayer is made for modification of judgment/ order dated 11.11.2009 passed by the Consumer Disputes Redressal Forum (VI), New Delhi (in short, “the District Forum”) in CC No.1594/2005, to the extent that the petitioner/OP is liable to adjust/deduct an amount of Rs.35,000/- from the decretal amount considering the fact that cheque No.034922 dated 31.12.1997 for an amount of Rs.35,000/- furnished by the respondent/complainant  in respect of which receipt had been issued by the petitioner/OP had bounced.
2. Relevant facts for the disposal of the present revision petition are that a complaint under Section 12 of the Consumer Protection Act 1986 (in short the ‘Act’) was filed by the respondent/complainant alleging therein that in the year 1998 she was allotted a plot measuring 321 sq. yds bearing No.B/C- 001 situated at Tronika City, Loni, Ghaziabad by the petitioner/OP in easy instalment @ Rs.1699/- per sq. yds. It was alleged that the petitioner/OP had assured that the plot in question would be developed in all respect within 03 years by providing facilities of electricity, water, roads, etc. Persuaded by the aforesaid assurances, the respondent/complainant paid a sum of Rs.3,58,397.50P to the officials of the petitioner/OP and necessary receipts were also given to her. It was alleged that despite the assurances given, the petitioner/OP did not develop the aforesaid plot and requested the respondent/complainant to sell the plot. It was alleged that on 29.03.2005 the respondent/complainant had received a letter from a property agent, namely, Surya Properties for sale of the said plot in favour of somebody else. The respondent/complainant did not agree for the same. It was alleged that the respondent/complainant made several visits to the office of the petitioner/OP for handing over the possession of the plot to her but the same was not given. It was alleged that thereafter the respondent/complainant received a letter dated 19.07.2004 from petitioner/OP, whereby it was informed that her plot was cancelled and it had been sold to somebody else. The petitioner/OP also sent a cheque NO.395163 dated 13.04.2005 for a sum of Rs.2,04,095.50P in the name of the respondent/complainant. The same was presented for encashment to the bank under protest. Thereupon, respondent/complainant had made several visits to the office of the petitioner/OP for the possession of the plot, but it was never given. Ultimately, the respondent/complainant filed a complaint before the District Forum for handing over the possession of the plot by executing conveyance deed in her favour and to pay compensation and cost of litigation.
3. Complaint was opposed by the petitioner/OP by filing written statement wherein it was alleged that the complainant did not make the complete payment and paid only a sum of Rs.3,23,396.50P against the due of Rs.3,58,396/- excluding an amount of Rs.35,000/- which was balance outstanding against a cheque bearing No.034922 dated 31.12.1997 issued by the respondent/complainant for an amount of Rs.35,000/-, which had bounced. It was alleged that the respondent/complainant did not make the payment of basic cost of the plot. It was alleged that the plot in question was developed, however, the respondent/complainant failed to make timely payment to the petitioner/OP and despite that the petitioner/OP had sent an offer to take possession vide letter dated 11.12.2003, but no response was given by the respondent/complainant. Thereafter, reminders dated 14.06.2004 and 19.07.2004 were sent to the respondent/complainant to take the possession after making payment of the due amount, but no response was given by the respondent/complainant. It was alleged that when no response was received from the respondent/complainant, the petitioner/OP cancelled the said allotment and returned the payment of Rs.2,04,095/- after forfeiting 20% of the basic costs as per the terms of the allotment. It was stated that the said cheque was encashed by the respondent/complainant.  It was stated that due to aforesaid facts and circumstances, respondent/complainant was not entitled for the possession of the plot.
4. Rejoinder was filed wherein the respondent/complainant reiterated the averments made in the complaint. Both parties filed their evidence in the form of affidavit.
5. After hearing the Ld. counsel for the parties, the Ld. District Forum held that the petitioner/OP was not justified in finding default on the part of the respondent/complainant and it was an excuse for forfeiture of the amount deposited by the respondent/complainant. Ld. District Forum gave a finding that the respondent/complainant had deposited a sum of Rs.3,58,397.50P and directed the petitioner/OP to pay the balance amount of Rs.1,54,302/- and also awarded Rs.80,000/- towards compensation and Rs.20,000/- towards costs of litigation.
6. Ld. Counsel for the petitioner/OP has contended that while passing the final order, Ld. District Forum erroneously considered that the respondent/complainant had deposited a sum of Rs.3,58,397.50P. It is contended that it was clearly brought to the notice of the Ld. District Forum that a cheque of Rs.35,000/- furnished by the respondent/complainant in respect of which a receipt had been issued by the petitioner/OP, wherein it was mentioned “subject to realization of cheque/draft” had in fact dishonoured. It is submitted that the necessary proof in this regard was also filed before the Ld. District Forum. It is submitted that despite that the Ld. District Forum ordered for the refund of the complete amount including the amount of the dishonoured cheque of Rs.35,000/-.  It is contended that the impugned order be modified to the extent that the petitioner/OP is liable to adjust/deduct an amount of Rs.35,000/-from the decretal amount.
7. No one has appeared on behalf of the respondent/complainant to assist us. Perusal of the record shows that the matter was listed for arguments on 04.02.2016 as well as on 21.07.2016. Even on the said dates also no one had appeared for the respondent/complainant.
8. We have heard the counsel for the petitioner/OP as well as perused the records of this case including the record from the District Forum.
9. It may be noticed that in the written statement clear averment was made by the petitioner/OP that respondent/complainant had paid a sum of Rs.3,23,396.50P upto 21.10.2010 against dues of Rs.3,58,396/-.  It was categorically stated in the written statement that cheque of Rs.35,000/- dated 31.12.1997 was dishonoured on presentation and was returned back unpaid to the petitioner/OP for the reason “sign illegible”. Copy of the said dishonoured cheque is also placed on the record. Respondent/complainant had filed rejoinder to the written statement filed by the petitioner/OP before the Ld. District Forum, wherein dishonouring of the cheque of Rs.35,000/- has not been specifically denied. The petitioner/OP has filed evidence before the Ld. District Forum, wherein it has been stated that the said cheque was dishonoured. There is no rebuttal by respondent/complainant to the said evidence led by the petitioner/OP. Thus, the respondent/complainant had paid an amount of Rs.3,23,396.50P to petitioner/OP. Ld. District Forum while deciding the complaint case has wrongly taken into consideration that the respondent/complainant had paid Rs.3,58,396.50P whereas she had paid only Rs.3,23,396.50P.  There is material irregularity in the impugned order as regards amount paid by the respondent/complainant to petitioner/OP and Rs.35,000/- has been awarded extra to the respondent/complainant. Giving the benefit of said amount to petitioner/OP, it is directed that the petitioner/OP shall pay Rs.1,54,302/- - Rs.35,000/- to respondent/complainant. The impugned order stands modified to aforesaid extent only.
10. The other relief given at Sr. No.2 and 3 of the impugned order is not challenged by the petitioner/OP.
11. Ld. counsel for the petitioner/OP submits that the petitioner/OP has already made payment of Rs.2,19,309/- to the respondent/complainant by way of a cheque bearing No.903279 dated 09.06.2010 after adjusting Rs.35,000/-.
12. The petition stands disposed of.
13. Copy of this order be given to the parties and be also sent to the District Forum, for information.

           File be consigned to Record Room.

 

 

(Justice Veena Birbal)

•  

 

(Salma Noor)

•  

Tri