BANK INDIA (P) LTD. vs R.S. AGARWAL

THIS is an appeal against the judgment and order passed on 26.6.1997 by District Consumer Forum, Ghaziabad, in Complaint Case No. 21 of 1992.

FACTS of the case, stated in brief, are that : The complainant applied for Shop No. G-9 and G-10 in Raj Nagar District Centre, Ghaziabad. The Plot No. of the shops was A-21. A sum of Rs. 41,440/- was deposited with the appellant. In spite of having deposited the entire amount, no possession of the shops was given to the complainant. Hence the appeal has been filed for refund of the deposited amount alongwith interest and compensation of Rs. 5,000/-. The appellant has alleged that the case is beyond the jurisdiction of the Forum and is barred because of limitation.

The learned District Forum after considering the case of both the praties came to the conclusion that the case is not barred by limitation and jurisdiction rests at Ghaziabad. Therefore, it decreed the claim of the complainant and allowed refund of the deposited amount with interet @ 18% per annum. It also allowed payment of Rs. 1,000/- to the complainant as compensation.

AGGRIEVED against this order of the learned Forum, the appellant has come in the appeal challenging the correctness of the order passed by District Consumer Forum, Ghaziabad. We have heard the Counsels for the respective party.

IT is an admitted fact that two shops were booked by the complainant after depositing Rs. 41,400/-. The cost of the shops were Rs. 1,18,400/- which was to be deposited in four instalments and last instalment was to be deposited in September, 1986. Possession was to be delivered in 1990. According to the learned Counsel for the complainant no construction was done as Ghaziabad Development Authority cancelled the plot and did not provide the plot on which the construction was to be done. According to the learned Counsel for the appellant as a pipeline was passing through the plot on account of which cancellation of the plot was done.

NO doubt it is true that the allotment was cancelled and the land as not made available to the appellant for making the shops but it does not absolve the appellant from the liability of refunding the amount.

ACCORDING to the learned Counsel for the appellant alternative shops were offered to the complainant but the complainant refused to accept the same. After the complainant had refused to accept the same, then it was more the reason to refund the amount to the complainant without his asking. The complainant was not bound to accept alternative shops. According to the learned Counsel for the appellant the complainant has not applied for refund of the amount hence the same was not refunded. This argument is devoid of any force.

Record of the case goes to show that complainant applied on 3.5.1993 for refund of the amount alongwith interest. This letter was received on the next day as it was presented personally. A reminder was issued on 15.5.1993 for refund of the amount. Third and last reminder was also issued on 25.5.1993 and inspite of all these letters, and appellant did not consider it necessary to refund the amount. The appellant continued to enjoy the benefits of the amount retained by it.

THE amount should have been returned immediately when the complainant had refused to accept the alternative shops. As it was not done, the learned Forum was perfectly justified in ordering refund of the amount with 18% interest per annum. It has been further argued by the learned Counsel for the appellant that the complaint raised complicated question of law and fact and as such the learned Forum should have returned the complaint for presentation to the proper Court. There is no complicated question of law and facts which necessitates ordering for return of the complaint for presentation to the proper Court. This controversy can also be resolved by the District Consumer Forum or State Commission. Therefore, this plea has no force.

THE next question raised is that the Consumer Forum has no jurisdiction to decide this case. THE agreement between the parties took place at Delhi. THE property is situated at Ghaziabad. According to the learned Counsel for the complainant, the agreement was signed at Ghaziabad where the property was situated, hence the District Forum has the jurisdiction to hear case because the cause of action arose at Ghaziabad. THEre is no proof for the fact that the agreement was executed at Delhi. THE property is situated at Ghaziabad. Learned Counsel for the appellant has argued that there is no provision for payment of interest on the amount to be refunded. May be no provision has been made in the agreement but the appellant should have performed its part of the contract sincerely even after the allotment was made and the complainant refused to accept the alternative site. The appellant continued to retain the money with it without any authority. As soon as the refusal was made by the complainant for the alternative site, the complainant became entitled to get the refund of the amount deposited by him. Interest in such cases is awarded in the form of damages. This is not precisely the interest but it is in the form of interest to compensate the complainant. Thus this argument has also no force and is rejected. In view of what has been stated above, we find that this appeal has no force and is liable to be dismissed. Order

THE appeal is dismissed. Judgment and order of District Consumer Forum, Ghaziabad, are confirmed.

LET compliance be made within a period of two months. Let copies be issued as per norms. Appeal dismissed.