Haryana

StateCommission

A/531/2015

RAJINDER SINGH NANDAL - Complainant(s)

Versus

TDI INFRASTRUCTURE LTD. AND ANR. - Opp.Party(s)

RAMESH HOODA

08 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                First Appeal No.531 of 2015

                                                          Date of Institution: 16.06.2015      Date of Decision: 08.08.2016

 

Rajender Singh Nandal S/o Udey Singh, R/o 47, Vashundhra Apartment, Sector-9, Rohini,Delhi/VPO Bohar, District Rohtak.

 …..Appellant

                                      VERSUS

TDI Infrastructure Ltd, through its Managing Director, Regd. Office at Vandana Building Upper Ground Floor, 11 tolstoy Marg, Connaught Place, New  Delhi-110001.

          …..Respondents

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.                                   

For the parties:  Mr.Ramesh Hooda, Advocate counsel for the appellant.

                             Mr.Bhupender Singh proxy counsel for Mr.Munish Gupta, Advocate counsel for the respondent.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          It was alleged by the complainant that he booked a flat with the opposite party (O.P.) on 19.03.2006. Bhumi Pujan of this project was organised on 03.05.2006. He paid Rs.11,49,000/- to O.P. upto 29.05.2007. The construction of his block was never started up to 2010. It was told by O.P. that flat No.302 was available in block No.W-4 and if agreed the same could allotted to him in place of flat No.V-1-201. As he accepted that offer, flat No.302 in W block was allotted to him on 07.07.2010 and Rs.8,02,099/- were demanded.  On 16.06.2010 allotment letter and other documents pertaining to flat No.V-1-201 were taken back from him.  It was assured that construction would be completed within one year.  O.P. asked time and again to deposit more amount, whereas he was not liable to pay the same. Letters were issued time and again to pay the amount, but, without any basis and ultimately he was asked to deposit Rs.9,13,468.21 without any basis.  When he went to office of O.P. with cheque of Rs.Four lacs the same was not accepted and it was told that his allotment was cancelled.  The O.P. was involved in the unfair trade practice and following relief may be granted:-

“i.       To direct the respondent to provide the complainant their account statement showing the detail of amount paid by the complainant and calculation made by the respondent on different charges.

ii.       To direct the respondent to revoke the cancellation letter and handed over the possession of the flat No.W-4-302 alongwith interest on the deposited amount @ 3% per month to the complainant within a specific time period and impose a penalty on the respondent to refund the deposited amount alongwith an interest of Rs.3% per month.

iii.      to pay interest @ 3% per month on the amount of Rs.22,63,905/- (i.e. amount +interest=approximately 69.00 lacs) paid by the complainant in different instalments to the respondent from the date of their actual payment as the work is not completed by the respondent in proportion of the amount paid by the complainant.

iv.      to pay Rs.10,00,000/- to the complainant for physical harassment, mental agony and torture suffered by him due to wrongful and illegal act of the respondent.

v        cost of litigation as deemed fit may also be awarded to the complainant.”

2.      O.P. filed reply controverting his averments and alleged that complainant was never assured that possession would be delivered within 2-3 years. Flat No.W-4-302 was allotted as per request of complainant. Construction of tower W was already over and possession was delivered to so many allottees. The payment was construction linked and that is why complainant was asked to deposit  the amount accordingly.  All the details were supplied to complainant about the demand raised in various letters, mentioned in para No.40 of the reply.    Despite those letters complainant did not make any payment.  His last payment was received on 30.03.2013. Finding no other alternative the allotment was cancelled and conveyed to him vide letter dated 30.11.2013.  There was no question of accepting Rs.Four lacs from him because Rs.9,13,468/- were outstanding against him and he was not entitled for any interest. Objections about maintainability of complaint, accruing cause of action, pecuniary jurisdiction, estopple, etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum,  Sonepat, (In short “District Forum”) allowed the complaint vide impugned order dated 18.05.2015 and directed as under:-

“However we allow the present complaint with the  directions to the respondent to refund the  entire deposit amount  to the complainant alongwith interest at the rate of 09% per annum from the date of its deposit till payment or to allot the flat No.W-4-302 to the complainant and to receive the balance amount from the complainant without interest. The respondent is also directed to compensate the complainant to the tune of Rs.25000/- (Rs. Twenty five thousands) for rendering deficiency services, for harassment and under the head of litigation expenses.  It is also made clear that if the flat No.W-4-302 is not available with the respondent, in that event, the respondent shall allot the flat to the complainant at the same rate and of the same measurement at some other good location, with these observations, findings and directions, the present complaint stands allowed.”

4.      Feeling aggrieved therefrom, complainant has preferred this appeal for modifying the impugned order dated 18.05.2015 and further awarding compound interest @ 3% per month from the date of deposit till payment and Rs.Two lacs per year for deficiency in service for mental harassment and Rs.Two lacs as litigation expenses.

5.      Arguments heard. File perused.

6.      Learned counsel for the appellant-complainant vehemently argued that the construction was to be completed within stipulated period. O.P. raised demand time and again whereas there was no fault on his part.  The OP was charging interest sometimes @ 1268% per month and some times @ 329% per month when this fact was pointed out the same was waived. When O.P. has charged interest at much higher rate he is also entitled for the compound interest as prayed for. Impugned order be modified and he be granted interest at this rate at the amount to be refunded by O.P.  It was argued that vide order dated 28.07.2014 this commission advised him to file complaint before District forum so it cannot be opined that it is beyond jurisdiction of District Forum.

7.      This argument is devoid of any force. From the perusal of order dated 18.05.2015 it is clear that District Forum has directed to refund Rs.22,63,205/- whereas it is having jurisdiction up to Rs.20/- lacs only. In this way this order is beyond jurisdiction of the District forum and cannot be sustained.  As per order dated 28.07.2014 jurisdiction was never conferred upon District Forum beyond Rs.20/- lacs.  In that order it was opined that value of flat cannot be taken into consideration for the purpose of jurisdiction. As per that order, if a party has to ask for possession then complaint is to be filed before the District Forum.  In this way impugned order dated 18.05.2015 is liable to set aside as far as it is pertaining to refund the entire amount, which is alleged as more than Rs.22,63,902/-. 

8.      Now the question comes about interest.  As per para No.40 of reply,  which is reproduced as under, it is clear that demand was raised time and again for payment:-

“That para No.40 of the complaint is matter of record  regarding issuance of final letter dated 30.09.2013. Rest of the para is wrong and hence denied.  It is wrong to allege that no letter was received by the complainant prior to letter dated 30.09.2013, whereas the complainant has himself placed on file a demand letter dated 13.09.2013 regarding demand of Rs.6,85,366/-(Annexure C-35).  Hence the complainant has not come with clean hands before the Hon’ble Court.

The respondents issued letter dated 10.06.2013 demanding Rs.2,29,162/-, another letter dated 01.07.2013 demanding Rs.2,29,162/-, letter dated 26.07.2013 demanding Rs.4,57,264/-, reminder dated 31.07.2013 demanding Rs.4,57,264.13P/-, reminder dated 13.08.2013 demanding Rs.4,57,264/-,letter dated 13.09.2013 demanding Rs.6,85,366/- and final reminder dated 30.09.2013 demanding Rs.6,85,366/-, again letter dated 06.11.2013 demanding Rs.6,85,366/-, but the complainant did not make any payment. The complainant made last payment of Rs.1,54,766/- on 30.03.2013.”

Demand letters and reminders are  EX.R-4 to Ex.R-15.  Statement of account pertaining to complainant is Annexure R-1, in the record of District Forum. This fact shows that complainant did not make payment in time. As per opinion of Hon’ble National Commission expressed in First appeal No.06 of 2014 titled as  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27.11.2014 complainant cannot ask for interest when he is also at fault.  For ready reference Para No.10 of the said judgement is reproduced as under:-

“It is an admitted fact that both parties are at fault in this case.  As per above findings of the State Commission, admittedly the respondent had not developed the site and was not in a position to deliver the possession.  Be that as it may, the appellants also in this case were defaulters. When appellants themselves were the defaulters, therefore under such circumstances, they are not entitled for any interest.  On this issue, we are in full agreement with the reasonings given by the State Commission.”

9.     If the same analogy is applied in this case, then complainant-appellant is not entitled for interest. Even if O.P. has not preferred appeal, the jurisdiction of District Forum can be looked into because it is continuity of matter. Even otherwise when consumer fora is not having jurisdiction to adjudicate upon any matter it is not supposed to go into the merits of the case because judgement without jurisdiction amounts to nullity as opined by Hon’ble National Commission expressed in Revision Petition No.317 of 1994 titled as Haryana Urban Development Authority Vs. Vipan Kumar Kohli decided on 19.01.1995. Hence impugned order dated 18.05.2015 about refund of deposited amount and payment of interest @ 9% thereupon is set aside.

10.    With this modification, appeal stands disposed of.

 

August 08th, 2016	Mrs.Urvashi Agnihotri, Member, Addl.Bench		R.K.Bishnoi, Judicial Member Addl.Bench
S.K.