Kusum Anjali vs ANSAL HOUSING AND CONSTRUCTION LTD.

COMPLAINANT as well as the Opposite Party before the State Commission have filed these appeals against the judgment and order dated 8.5.2007 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission'') in Complaint No. 344/2000 whereby the State Commission partly allowing the complaint has directed the Opposite Party, M/s. Ansal Housing and Construction Ltd. to allot any other plot, if still available, on payment of demanded amount and in case no plot was available then to refund the amount of Rs. 5,18,402.19 with interest @ 12% p.a. from the date of filing of the complaint till the passing of the order. Facts:

On 18.4.1996, one Ayesha Mishra booked Plot No. B -B106 admeasruing 478 sq. yards with M/s. Ansal Housing and Construction Ltd. (hereinafter referred to as ''the Respondent'') against the advance payment of Rs. 80,000. She further paid Rs. 12,172.50 to the Respondent on 14.5.1996. The amount due against her as on 24.9.1996 was Rs. 1,33,085. On 26.9.1996, Appellant/Complainant (hereinafter to be referred to as ''the Appellant'') purchased all the rights, title and interest from M/s. Ayesha Misra in the said plot after paying Rs. 1,41,036 to her. Appellant further paid Rs. 1,33,085 towards balance consideration, Rs. 10,885.69 towards interest for delayed payment and Rs. 11,950 as transfer fee charges to the Respondent.

ON 19.12.1996, Respondent again raised a demand of Rs. 90,000 from the Appellant. Appellant vide letter dated 31.12.1996 asked the Respondent for requisite documents showing their ownership on the plot, final lay out plan, allotment letter of the said site by the Greater Noida Authority in their favour, etc. Despite repeated requests made by the Appellant, no such information was furnished by the Respondent. Subsequently, by letter dated 10.11.2000, Respondent asked the Appellant to pay the sum of Rs. 3,60,412 towards arrears of installment and interest by 20.11.2000 failing which the allotment of the plot shall stand cancelled. Appellant refused to pay the interest as the requisite information was not furnished by the Respondent and filed the complaint before the State Commission alleging negligence on the part of the Respondent. Respondent, on being served, entered appearance and filed its written statement resisting the complaint, inter alia, on the grounds; that the Appellant had failed to make payment as per Plan -B; that the Respondent builder was duly allotted the requisite land of the project and had initiated steps to get the lay out plans sanctioned from the appropriate authority; that this fact was in the knowledge of the Appellant at the time of seeking substitution of her name; that the Appellant was shown the requisite contracts executed with GNIDA about the entitlement of the Respondent towards the project land; that since the Appellant did not pay the outstanding amount of Rs. 3,60,412 the plot was cancelled.

THE State Commission, after scanning the material available on record and going through the evidence led by the parties, came to the conclusion that the Appellant did not make the payment as per Plan -B and was interested in refund of the amount paid by her with interest. Accordingly, State Commission partly allowed the complaint and directed the Respondent to allot any other plot, if still available, on payment of demanded amount and in case no plot was available then to refund the amount of Rs. 5,18,402.19 with interest @ 12% p.a. from the date of firing of the complaint till the passing of the order. State Commission observed thus:

The aforesaid conspectus of rival claims by the parties show that the complainant is blowing hot and cold. On the one hand the complainant is saying that the O.P. had not furnished the information that they were the absolute owners of the land out of which the plot was allotted and on the other hand is praying for restraining the O.P. not to cancel the allotment or booking of the plot in question.

Admittedly, the complainant did not make payment as per Plan -B and as a consequence demand for Rs. 3,67,097 towards interest was raised. It appears that the complainant is not in a position to pay this amount and is interested in refund of the amount already paid by her with interest.

If the Complainant is interested in allotment of the plot she has to make payment of the entire demand raised by the O.P. payable as on today.

FEELING aggrieved by the order passed by the State Commission, both the parties filed the appeals. First Appeal No. 460 of 2007 has been filed by the complainant seeking a direction to the Respondent to hand over the vacant possession of the plot whereas First Appeal No. 487 of 2007 has been filed by the Respondent for setting aside of the impugned order. Counsel for the parties have been heard at length.

Learned Counsel appearing for the Appellant contends that the Appellant had not defaulted in paying the installments to the Respondent; that the Respondent did not furnish the relevant documents relating to its title to the said plot and as a consequence thereof, the Appellant did not pay further installments to the Respondent; that the State Commission has erred in holding that the Appellant be allotted a plot, if available; that the original plot allotted to the Appellant was never cancelled and the Respondent has failed to produce any documents to show that the allotment in favour of the Appellant was cancelled; that the State Commission granted relief to the benefit of the Respondent and to the detriment of the Appellant insofar as it has erroneously given an option to the Respondent to refund the money in case no plot is available; that the Respondent is bound to allot the plot/hand over the possession of the plot on payment of the principal balance.

AS against this, learned Counsel appearing for the Respondent submits that the Appellant is not entitled to the relief either for the allotment of the plot on payment of the dues at this stage or any interest in view of the categorical finding of the State Commission to the effect that the Appellant had admittedly defaulted in making the payments and the demand raised by the Respondent with respect to the interest was just and as per terms of the agreement; that the Respondent complied with the alternative direction issued by the State Commission and offered to pay the sum of Rs. 9,14,490 which was not accepted by the Appellant.

THE facts of the case are not disputed before us. The question which falls for our consideration is whether the Appellant was a defaulter in making the payment and as to whether the Respondent was justified in cancelling the allotment of the plot for non -payment of remaining installments with interest. We agree with the view taken by the State Commission that the Appellant had defaulted in making the payments in terms of the agreement executed between the parties. Admittedly, the Appellant did not make payment as per Plan -B and as a consequence demand for Rs. 3,62,412 was raised by the Respondent. The only ground taken by the Appellant for non -payment of the balance consideration was that the documents demanded by her were not furnished by the Respondent. Learned Counsel for the Respondent has drawn our attention to the letter dated 7.8.1997 written by the Respondent to the Appellant which reads as under: 7th August, 1997

Mrs. Kusum Anjali,

512, Mount Kailash Apartments,

East of Kailash,

New Delhi.

Sub.: Allotment of Plot No. B/B -106 in Golf Links Greater Noida

Madam,

This has reference to your letter dated 19th July, 1997. As desired, please find enclosed herewith - -

Copy of letter from GNIDA regarding possession of land.

Part layout plan indicating your property number.

Allotment letter to be signed by you and to be sent to us for our signatures. The same is to be returned to you for your records after our signatures.

Your statement of account.

We hope you will find the above in order.

Yours very truly,

For Ansal Housing and Construction Ltd.

(Arun Singh)

Asstt. Gen. Manager (Sales)

A perusal of the letter dated 7.8.1997 reveals that the documents required by the Appellant were sent to her by the Respondent. There was no reason for the Appellant to not to make the payment of the amount demanded by the Respondent. Since the Appellant had defaulted in making the payment the Respondent was justified in cancelling the allotment. In our considered view, State Commission has rightly directed the Respondent to allot a plot, if available, on payment of the entire demand payable upto date or in case the plot is not available to refund the deposited amount with interest @ 12% from the date of filing of complaint till the date of order.

EVEN , we tried to settle the matter amicably and by order dated 7.8.2012 asked the Counsel for the Respondent to find out if any other plot is available in the same scheme or any other scheme floated by the Respondent at a mutually agreeable price. On 3.10.2012, Counsel for the Respondent made a statement that no other plot was available. Under these circumstances, there is no option except to direct the Respondent to refund the deposited amount with interest as per direction given by the State Commission. A sum of Rs. 9,14,490 was offered by the Respondent to the Appellant towards the satisfaction of decree which was not accepted by the Appellant. We direct the Respondent to refund the deposited amount to the Appellant within 30 days with interest from the date of filing of complaint till the date of offer made by it. For the reasons stated above, First Appeal No. 460/07 filed by the Complainant seeking possession of the plot is dismissed. Since the Respondent has accepted the order of the State Commission and offered to pay the amount awarded by the State Commission, appeal filed by it, is dismissed as infructuous. There shall be no order as to costs. Registry is directed to refund the sum of Rs. 35,000 deposited by the Appellant as statutory deposit along with accrued interest.