C.M.SETHI vs AHLUWALIA CONSTRUCTION (INDIA) LIMITED

BRIEFLY the facts are that the complainant applied for registration for the allotment of an apartment in the residential complex proposed to be developed and constructed by the respondent company in Vaishali Township Scheme. It is alleged that she deposited an amount of Rs. 65,259/- as Booking charges on 21.8.89. Later she had been depositing the installments. In al she deposited an amount of Rs. 2,61,000/- including the amount of Rs. 65,250/- as detailed in Annexure ''A''. However, the respondent has not given the flat to the complainant till date. Consequently it is prayed that the respondent be directed to refund the said amount along with interest @ 24% p.a.

THE complaint has been contested by the respondent. THEy have inter-alia pleaded that the complainant is not a ''consumer'' as defined in the Consumer Protection Act. It is further pleaded that the case contained intricate questions of law and fact and consequently the complaint is liable to be dismissed. On merits it is pleaded by the respondent that they deposited the plans etc. for approval of the Ghaziabad Development Authority. However, when the plans were pending before them the government stopped all further actions with regard to the plot in question. The respondent challenged the order of the government before the Allahabad High Court and the Hon''ble Court directed the GDA on 20.11.1990, to consider the plans submitted by the respondent and pass orders within two weeks. In pursuance of that order, the GDA had sanctioned their plans on 23.2.1991. The excavation work was started immediately thereafter and completed in the beginning of March'' 91. They, after the excavation work, requested the complainant to pay the 5th installment of 5% which was not paid inspite of various reminders. The ground floor slab was laid in September ''91 and 6th installment became due but that was not paid by her.

The second floor slab was laid in December''91 whereupon the 7th instilment of 5% became due, which was demanded from the complainant on 2.12.1991. She failed to pay the said installment also. Thereafter a reminder dated 27-12-1991 was issued to her to pay the 5th, 6th & 7th installments of Rs. 32,625/- each to the respondent, but still no payment has been made by her.

THE 4th floor slab of the building was laid in January 1992, whereupon the 8th instilment of 5% became due and the same was demanded from the complainant on 30.1.1992. Alongwith the letter of demand, it is alleged, photographs of the building as on 21-12-1991, were not sent to her showing the progress of the work and she was requested to make the payment expeditiously to enable them to complete the work. However, despite repeated requests and reminders she failed to make the payments of the four installments of Rs. 32,625/- each. It is further pleaded that in Nov. /Dec''91 the complainant met the respondent and requested for refund of the amount on the ground that she urgently required the same for domestic obligation. Her request was followed by a letter dated 2.1.91. She wrote several letters to them to return the total amount paid by her. She also threatened that a complaint against them would be filed under the Consumer Protection Act, in case they failed to return the money.

IT is further pleaded that the complainant failed to pay the four outstanding installments of Rs. 32,625/- each and therefore she became liable to pay interest thereon. The respondent sent a notice to her calling upon her to withdraw her notice dated 7-3-92 and requested her to pay four outstanding installments totaling to Rs. 1,30,500/- alongwith interest @ 24% p.a. It is next pleaded that the complainant has raised another plea that the plot on which construction was raised, was in dispute and therefore the activities thereon had been stayed. This assertion, it is alleged, is incorrect. The other allegations made by the complainant are also denied by them. It is also pleaded that the complainant has not approached the Hon''ble Commission with clean hands and her conduct has been unfair and tainted with illegalities. The cost of the flat is Rs. 6,52,500/- which has not been paid and thus she committed breach of the agreement. At present, it is pleaded, 7 floors of the building had been constructed. Thus the respondent was not guilty of unfair trade practice, as alleged by the complainant.

IN order to appreciate the arguments of the parties a few more facts may be noticed. The respondent purchased the plot on which the flats were to be constructed, from the Ghaziabad Development Authority - (hereinafter referred to as ''the Authority''). It was provided in the advertisement which was got published in ''Hindustan Times'' dated 20.2.1989 (exhibit R-I) by the Authority, that trunk and external development had been provided and the allottees were required to develop internal services on the plot. The rate of the plot, which measured 4000 square meter , was Rs. 3,000/- per sq. meter. 50% of the total amount was to be paid by the allottee within three months of the allotment. The respondent got the plot in the draw of lot and they were informed by the Authority vide letter dated 16-5-1989 (exhibit R-II) that the plot had been allotted to them. They paid Rs.12 lacs on 12th July 1989 and Rs. 48 lacs on 13.7.89. IN July ''89, after making payment of Rs. 60 lacs the present scheme was announced by them. The complainant applied for a flat on 21.8.89. The authority issued NOC for submissions of plans, to the respondent on 23.10.89. Thereafter on 17.11.89 the plans were submitted to the authority. However, on 11.1.90 the U.P. Government suspended the activity in the Township for the reason best known to them. The respondent was left with no other alternative but to approach the High Court against the illegal order passed by the government. The High Court vide order dated 20.11.90 (exhibit R-17) ordered that the authority would consider the application of the respondent for the sanction of plans irrespective of the orders passed by the government, within a period of three weeks from the date of the application. IN view of the order of the High Court the plans were submitted by the respondent and were approved on 23.2.91 (exhibit R-18). They started construction work in the first week of March''91. IN April''93 roof of 12th floor has been laid down and brick work in the building has been completed. Even the plastering work has been started.

THE complainant''s husband Shri K.C. Sethi is the Additional General Manager of the Unitech Limited which is also constructing similar flats in the same area. THE complainant inspite of that preferred to purchase a flat from the respondent. It goes a long way to show that the respondent is considered to be a good builder and enjoys the confidence of the people. The main argument of the learned Counsel for the complainant is that a fraud had been played upon them as Ahluwalia Contracts (India) Ltd. issued a letter dated 25.8.89 (exhibit R-6) to the complainant and informed her that she had been allotted flat No. 412 having three bed rooms, drawing and dining room and a kitchen in Vaishali Township U.P. He submits that on that date the said company had not. come up into existence. The respondents Counsel submits that on that date the company was a Private Limited company but its assets had exceeded the prescribed limit and thus it, by operation of law, became a Public Limited Company. He further submits that it was through oversight that that letter head was used by the respondent''s staff. It is well-settled that the allegations of fraud cannot be decided in the summary proceedings as the parties do not got adequate opportunities to cross-examine the witnesses, produce evidence and prove documents. The proper Forum for that purpose is a Civil Court. In the circumstances it will be proper, that the complainant should get the matter adjudicated from the Civil Court.

It is further relevant to mention that the facts show that the complainant has committed breach of the agreement and the respondent has been ready and willing to perform their part of the agreement. It is clear from her 1st letter dated 2.1.92 (exhibit 27), wherein she wrote to the respondent that she was in need of the amount to honour domestic problems. It is thus evident that she was not asking for the refund of the amount for the reason that the building was not being constructed according to the promises made by the respondent or there was some default on the part of the respondent but for some other purpose. It has already been mentioned above that slabs on all the floors have been laid, brick work has been completed and plastering work has been started in the building. It is also evident from the aforesaid facts that the complainant has taken the plea of fraud in order to wriggle out of the contract and get back the money deposited by her for purchasing the flat. We are of the opinion that she cannot be allowed to do so.

IN the end it may be mentioned that there appears to be no deficiency on the part of the respondent in rendering service to the complainant. It is well-settled that a purchaser can file a complaint against a builder incase there is any deficiency in service provided to him. As already observed there is no deficiency in the service in the present case on the part of the respondent. We, therefore, find no merit in the complaint. For the aforesaid reasons we dismiss the complaint with costs subject to the above observations that she may seek remedy in the Civil Court, if she so desires. Costs Rs.2, 000/-. Complaint dismissed.