ANIL KUMAR GARG vs JAGDISH CHOKHANI

Ms. Rumnita Mittal, Member

THIS is a complaint filed under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act''). The case of the complainant, in brief, is that his father had booked a commercial flat, measuring 500 sq. ft. in the building complex known as Chokhani Towers, P-4, Sector 18, NOIDA, Ghaziabad (U.P.) @ Rs. 1,015/- per sq. ft., in the joint name with his wife Smt. Satyawati Gupta. Out of the total sale considertion amounting to Rs. 5,07,500/- payable to the O.P. in instalments, the father of the complainant had paid a total sum of Rs. 4,82,125/- during the period between November, 1989 to July, 1993. However, the father of the complainant expired on 6.11.1994. Thereafter on the basis of a letter of request dated 3.6.1995 the flat booked in the joint name of the late father of the complainant and his mother was exclusively transferred in the name of the mother of the complainant, Smt. Satyawati Gupta, who further vide letter dated 6.9.1995 requested O.P. No. 2 to change the ownership of commercial office space No. 302 in ''Chokhani Tower'' situated at P-4, Sector 18, NOIDA, in the exclusive name of her son Shri Anil Kumar Garg, the complainant. Accordingly the name of the complainant was substituted as the owner of the flat in question vide letter dated 23.2.1996. Thereafter the complainant visited the site in question in September, 1996 and to his horror and amazement found that no work was in progress and the structure was incomplete, although O.Ps. had assured the late father of the complainant that the flat would be handed over to them within a period of three years. As such, after inspecting the status of the building the complainant vide letter dated 16.9.1996 informed O.P. No. 2 that he was no longer interested in retaining the flat allotted to him and requested the O.P. No. 2 to refund to the complainant the price of the flat, at the rate prevailing in the market in that area. The complainant followed up the matter with several reminders. Consequently several memorandum of understandings were also executed between the parties for the return of the deposited amount in instalments. However, the O.Ps. paid up only Rs. 4,82,125/- and the balance amount of Rs. 2,00,000/- was still due and payable by the O.Ps. to the complainant. The complainant got a legal notice dated 15.3.2000 issued to the O.Ps. which was duly replied to by the O.Ps. vide reply dated 5.4.2000 admitting the various payments made by the complainant''s father and acknowledging the fact that they had failed to adhere to the various memorandum of understanding executed between the parties. It was also admitted by the O.Ps. that they had failed to make the payment of the balance amount of Rs. 2,00,000/-. Thus, the complainant was forced to file the present complaint before this Commission praying for directions to the O.Ps. to refund to the complainant the balance amount of Rs. 2,00,000/- together with interest @ 18% p.a. on the total sum of Rs. 4,82,125/- from the date of respective payments till the date of repayments made and to be made. The complainant also prayed for award of Rs. 3,00,000/- as damages. In the reply/written version filed before this Commission, the O.Ps. admitted the fact that the father of the complainant had book a commercial flat with the O.Ps. and also that an amount of Rs. 4,82,125/- had been received from the father of the complainant between November, 1989 to July, 1993. It was also admitted that an amount of Rs. 2,00,000/- was still repayable to the complainant. However, the stand of the O.Ps. was that they had always been ready and willing to pay the said amount to the complainant subject to his signing the memorandum of understanding in the office of the O.P. But since the complainant had refused to sign the same on the ground that he would do so only after the encashment of the cheques, the cheques had been taken back by the O.Ps. As such it was stated by the O.Ps. in their reply/written version that the complainant was not entitled to any amount over and above Rs. 2,00,000/- in view of the memorandum of understanding executed between both the parties.

The complainant filed a rejoinder to the reply/written version filed on behalf of the O.Ps. reiterating the contents of the complaint. Both the parties adduced their evidence by way of affidavits. The complainant filed his own affidavit by way of evidence and on behalf of the O.Ps. the affidavit of Shri Jagdish Chokhani, O.P. No. 1 and Chairman of O.P. No. 2 was filed.

WE have carefully gone through the evidence, as well as the documents/material placed on record and have also heard the arguments advanced on behalf of both the parties at length. During the course of present proceedings the O.Ps. had paid to the complainant an amount of Rs. 2,00,000/- and as such vide orders/proceedings dated 31.1.2003 it was agreed between both the parties that the sole surviving controversy in the present complaint relates only to the rate of interest payable to the complainant. Thus keeping in view the fact that the O.Ps. had considerably delayed the construction of the flat in question, resulting in the complainant seeking refund of the deposited amount and also the fact that the O.Ps. had utilised the amounts deposited by the complainant/his father, since 1989, the complainant is entitled to interest on the total deposited amount of Rs. 4,82,125/-, from the date of payment of each instalment, till the date of refund. The complainant has claimed an interest @ 18% p.a. In the facts and circumstances of the case, we are of the opinion that the ends of justice would suffice if simple interest @ 15% p.a. is awarded to the complainant to be paid by the O.Ps. on the amount of Rs. 4,82,125/- from the date of payment of each instalment till actual payment made. It is, therefore, directed that the opposite parties shall pay to the complainant simple interest @ 15% p.a. on Rs. 4,82,125/- from the date(s) of deposit of the abovesaid amount of Rs. 4,82,125/- by the father of the complainant with the opposite parties, till actual payment to the complainant. The above amount be paid by the opposite parties, whose liability is joint and several within 45 days from the date of receipt of this order failing which the complainant would be at liberty to file an application under Section 25/27 of the Act for the implementation of this order as the complainant may be advised. The present complaint, filed by the complainant, stands disposed of in above terms. Complaint disposed of.