M/S Smv Agencies Pvt. Ltd vs Rajiv Bansal

PETITIONER /O.P. has filed the present revision petition under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act '') against order dated 22.11.2012 passed by State Consumer Disputes Redressal Commission, Delhi(for short, ''State Commission '') in Appeal No.786 of 2012.

BRIEF facts are that on 16.08.2005, Respondent/ Complainant booked a plot of 250 Sq. Yds. with the Petitioner in its coming up project at NH -24, Ghaziabad. Respondent paid to the petitioner in all, Rs.9,18,000/ - in installments upto November, 2006. The petitioner in turn made provisional allotment of plot No.F -44, Type -C, in the name of the respondent, vide letter dated 10.11.2006. Respondent wrote to the petitioner on 25.07.2007 to inform about the progress of the project but petitioner did not inform him about its progress. On 15.01.2008 as required by submitting his affidavit before petitioner, the respondent stated that out of his own consent and freewill he has cancelled/surrendered his registration for allotment, requesting the petitioner to refund him Rs.9,18,000/ - deposited by him with it alongwith upto -date interest. The respondent then again sent a letter dated 29.01.2008 to the petitioner, that due to some unavoidable circumstances he wants to cancel his application for registration of allotment, requesting the petitioner to return his amount alongwith update interest. On 30.4.2008, petitioner refunded Rs.7,54,000/ - vide post -dated cheque dated 31.05.2008 to the respondent by obtaining a receipt from one Saroj authorized by him to collect the cheque. On 14.05.2008, respondent sent a letter to the petitioner asking as to why and how they had deducted Rs.1,63,800/ - from his amount and have not paid the interest. On 17.06.2008 and thereafter on 11.09.2008 vide letters, respondent again wrote to petitioner reiterating his earlier enquiries calling upon them to pay him Rs.1,63,800/ - and the interest, but in vain.

THE respondent after serving a legal notice on the petitioner, filed a complaint before the District Forum with a prayer that petitioner be directed to pay him Rs.1,63,800/ - and interest thereon @24% p.a. of the period during which his amount was lying deposited with it, besides compensation of Rs.1,00,000/ - and the costs.

THE petitioner opposed the claim and filed its written version denying that there was no development in the project, and averred that while applying for cancellation of registration, the respondent relinquished all his rights and in receipt issued by his authorized representative in lieu of cheque on 30.04.2008, he relinquished all his claims in the plot and respondent had received the refund with full understanding of the terms of the company, that in case of pre -mature cancellation the petitioner shall be entitled to retain 10% of the costs of the unit and other incidental charges, which it had deducted and it denied any unfair trade practice on its part. On consideration of evidence of both the parties and after hearing them,District Forum decreed the claim of the respondent, directing the petitioner to refund the complainant a sum Rs.1,63,000/ -and interest @9% on all deposits and also an amount of Rs.50,000/ -towards the compensation.

BEING aggrieved, petitioner filed an appeal before the State Commission, which modified the order of the District Forum and reduced the compensation amount from Rs.50,000/ -to Rs.25,000/ - and directed that; ''''The appellant will pay the respondent interest @9% on his amount of Rs.9,18,000/ - for nine months, Rs.16,300/ - along with interest@9% from November 2006, till the date of payment and Rs.25,000/ -(Rs. Twenty Five Thousand) as compensation besides the litigation costs Rs.5,000/ - (Rs. Five Thousand) within one month from the date of receipt of this order in his office ''''.

HENCE , this revision. It has been contended by learned counsel for the petitioner, that since full and final settlement has already been concluded between the parties, respondent is not entitled to refund of any amount. Thus, both the Fora below have committed an error.

IT has been further contended that respondent on its own has asked for refund of the amount and the same was refunded as per terms and conditions of the Petitioner ''s Company policy, that in case of pre -mature cancellation, petitioner shall be entitled to retain 10% of the cost of the unit and other incidental charges. Since, respondent has received the full and final payment,now it does not lie in his mouth to claim any amount from the petitioner. Further, learned counsel for petitioner has relied upon a decision of this Commission reported as Summit Chaudhary Vs. Haryana Urban Development Authority and Ors. IV (2011) CPJ 570 (NC).

THE only question which arise for consideration is as to whether petitioner is entitled to deduct a sum of 10% out of the amount deposited by the respondent, when respondent itself has sought for the refund of the amount. As as per the terms and conditions of the allotment(copy placed at page 33 -34 of the Paper -book)it has nowhere been mentioned that in case an allottee ask for the refund of the amount, then petitioner would be entitled to deduct 10% of the cost of the Unit and other incidental charges. Petitioner has tried to introduce a new case before the State Commission as well as before this Commission for the first time, regarding deduction of 10% of the amount deposited by the respondent. Further, it transpires from the record that Certificate of Registration dated 10.2.2006, issued in favour of the petitioner for the purpose of Land Assembly, Infrastructure Development and Construction Works for Housing Schemes within Ghaziabad Planning area, was valid for a period of two years only from the date of issue. Similarly, as per copy of Grant of License, it is valid upto 28.05.2008. Hence, there is nothing on record to show that at the time of filing of the complaint by the respondent, petitioner had any valid Certificate of Registration as well as License in its favour. In the absence of these necessary documents, it is manifestly clear that petitioner has been indulging in unfair trade practices and has been mis -leading the allotees.

IN this regard the State Commission has rightly observed as under; ''''Nevertheless in absence of there being any agreement between the appellant(OP) builder and the respondent buyer that in case the respondent (buyer) seeks refund at his own the builder (seller) will deduct some amount at the time of refund, the appellant builder was wholly unjustified in making 10% deduction while refunding the amount to the respondent. The District Forum is therefore wholly justified to order the OP to refund of the amount to the complainant, which OP deducted from his amount at the time of refund but only alongwith interest @9% till the date of refund of this amount only, and not all deposits as ordered by the Forum ''''.

DECISION of Summit Chaudhary (Supra) is not applicable to the facts of the present case at all. Under section 21(b) of the Consumer Protection Act,1986, this Commission can interfere with the order of the State Commission only where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

WE do not find any reason to disagree with the findings given by the State Commission, that there was no provision of deducting of 10% of the amount from the cost of the Unit and the same has been illegally deducted by the petitioner. Hence, there is no ambiguity or irregularity in the impugned order passed by the State Commission. The present revision petition has no merit at all and the same being without any legal basis, is hereby dismissed with cost of Rs.10,000/ -(Rupees Ten Thousand only.

PETITIONER is directed to deposit the above cost by way of demand draft in the name of ''''Consumer Legal Aid Account '''' of this Commission, within four weeks from today. In case, petitioner fails to deposit the cost within the prescribed period, then it shall also be liable to pay interest @ 9% p.a., till realization.

LIST on 10th January, 2014 for compliance.