Per: Justice B.S. Verma, President (Oral):

Heard Sh. A.K. Jain, learned counsel for the appellant on admission and perused the record.

This appeal under Section 15 of the Consumer Protection Act, 1986 has been preferred against the order dated 04.08.2016 passed by the District Forum, Udham Singh Nagar in consumer complaint No. 18 of 2012, whereby the consumer complaint filed by respondent – complainant was allowed and the appellant – opposite party was directed to pay sum of Rs. 4,25,000/- to the respondent – complainant together with interest @18% p.a. from the date of deposit till payment and Rs. 5,000/- towards litigation expenses.

Briefly stated, the facts giving rise to the appeal are that the appellant – opposite party had developed a colony at Village Bindukhera, Kashipur Road, Rudrapur.  The complainant booked a flat in the said colony on 22.01.2007 for sum of Rs. 6,90,000/- and paid the booking amount of Rs. 25,000/- and also paid certain amount on different dates.  The complainant had paid a total amount of Rs. 4,25,000/- to the opposite party.  According to the complainant, the opposite party had promised to deliver the possession of the flat within a period of one year.  The complainant had taken loan from State Bank of India, Rudrapur for purchase of the flat.  The complainant contacted the opposite party several times for delivering the possession of the flat, but the possession was not delivered.  The complainant along with his associates met the District Magistrate, Udham Singh Nagar on 16.05.2011 and informed the above facts.  The District Magistrate, Udham Singh Nagar handed over the inquiry of the matter to the SDM, Rudrapur, before whom, the Director of the appellant – company had given a written undertaking on 30.05.2011 that the possession of the flat would be delivered by 31.08.2011 and in failure thereof, the deposited amount would be refunded to the complainant together with interest, but still the possession of the flat was not delivered.  Again on 02.09.2011, the Director of the appellant – company had given an undertaking before the SDM, Rudrapur that the possession of the flat would be delivered to the complainant by 26.10.2011, but inspite of that, the possession of the flat was not delivered, therefore, the consumer complaint was filed by the complainant before the District Forum.

The consumer complaint was contested by the appellant – opposite party by filing written statement, wherein it was admitted that the complainant had booked a flat, but it was stated that the complainant has not complied with the terms and conditions of the contract and since the entire consideration was not paid by the complainant, therefore, there is violation of the terms and conditions of the contract on the part of the complainant.  In additional pleas, it was stated that the opposite party is ready to deliver the possession of the flat after completion of required formalities / conditions by the complainant.

Before the District Forum, both the parties led their evidence.

After hearing both the parties, the District Forum has allowed the consumer complaint vide impugned order dated 04.08.2016 in the above terms.  Aggrieved by the said order, the appellant has preferred the present appeal.

The District Forum has given a categorical finding that there is no dispute that the complainant has booked a flat and deposited a sum of Rs. 4,25,000/- with the opposite party and the possession of the flat was to be delivered within one year.  There is also no dispute that the flat was not completed till 30.05.2011, when the Director of the company had given an undertaking before the SDM, Rudrapur. 

So far as the pleading of the complainant that the possession of the flat was to be delivered within one year is concerned, the same was not denied by the opposite party in the written statement or before the SDM, therefore, the argument of the learned counsel for the appellant – opposite party that there was no time limit fixed for delivery of possession of the flat, is not tenable.  A letter dated 10.09.2014 has been filed by the appellant, which was issued by the appellant to the complainant and the same was sent to the complainant through post.  In the said letter, it was for the first time mentioned by the appellant that the flat is ready for fitment and the complainant was requested to contact Sh. Shyam Chander, Account Section to clear all pending dues, so that possession letter can be delivered.  This letter indicates that prior to the said date, the flat was not ready for delivery of possession.  Thus, there is no force in the submission made on behalf of the appellant that the flat was ready for delivery of possession before 10.09.2014, the date of issuance of the letter.  The perusal of the impugned order also shows that at the time of booking of the flat, the appellant – company was not even registered and without registration of the company, the appellant accepted the booking of the flat and received the consideration amount.

The District Forum has considered all the evidence available on record and rightly directed the appellant to refund the amount together with interest @18% p.a., which has been awarded on the basis of the decision of the Hon’ble Apex Court referred in the impugned order.  We do not find any infirmity in the impugned order passed by the District Forum and the same does not call for any interference.  The appeal lacks merit and is liable to be dismissed.

Appeal is dismissed in limine at the admission stage itself.  No order as to costs.