NANDKUMAR K. MENON vs M/S. TIRUPATI DEVELOPMENT CORPN & 2 ORS.

No one is present for respondent no.1 despite service. I have heard the learned counsel for the petitioner and the respondents'' no.2 & 3.

The petitioner/complainant entered into an agreement with the respondent no.1-Tirupati Development Corporation for purchasing of a tenement for the total consideration of Rs.4,07,400/-. According to the petitioner/complainant, he paid a total sum of Rs.5,69,778/- to the said respondent, out of which Rs.1,91,478/- were paid by cheque and the remaining amount is stated to have been paid in cash. Vide letter dated 20.04.2001 sent to the aforesaid respondent, the petitioner/complainant, due to his unforeseen domestic constraints, requested the respondent/builder to cancel the agreement and refund of the aforesaid amount of Rs.5,69,778/-, which he had allegedly paid to the said respondent. According to the complainant, there was no response from the respondent/builder to the said letter of the petitioner/complainant. Being aggrieved, he approached the concerned District Forum by way of a complaint, but, instead of seeking refund, he sought possession of the flat, which the builder had agreed to sell to him.

The complaint was resisted by the respondent inter-alia on the ground that on receipt of letter dated 20.04.2001 from the complainant, he had sent a cheque of Rs.1,91,478/- towards refund of the amount which he had received from the complainant.

The District Forum vide its order dated 04.08.2011 directed the respondent no.1 to refund the amount of Rs.1,91,478/- to the complainant along with interest @ 9% p.a. w.e.f. 20.04.2001. The said respondent was also directed to pay Rs.5,000/- as cost of litigation.

Being aggrieved from the order passed by the District Forum, the petitioner/complainant approached the concerned State Commission by way of an appeal. The said appeal having been dismissed, he is before this Commission by way of this revision petition.

The first question which arises for consideration is as to whether the petitioner/complainant was entitled to seek possession of the flat booked by him or he was entitled to only refund of the amount which he had paid to the respondent no.1-Tirupati Development Corporation. In my view having elected to seek refund vide letter dated 20.04.2001, the petitioner/complainant was precluded from approaching the District Forum for a direction to the builder to deliver possession of the flat booked by him, without his having withdrawn the said letter dated 20.04.2001. Admittedly, the said letter dated 20.04.2001 seeking refund was not withdrawn by the complainant before he approached the District Forum by way of a complaint. Therefore, he could have only sought refund of the amount which had paid to the said respondent along with compensation but could not have sought possession of the flat, which he had booked with him.

The next question which arises for consideration is how much amount the complainant had paid to the respondent no.1. There is no receipt of alleged cash payment. There is no acknowledgement of the said cash payment from the respondent no.1. There is no explanation as to why the petitioner/complainant chose to make part payment in cash. Admittedly, payment of Rs.1,91,478/- was made by way of a cheque. During the course of hearing, I asked the learned counsel for the petitioner as to from which bank account the alleged cash amount for paying to respondent no.1 was withdrawn by the petitioner/complainant. The learned counsel fairly admitted that no such record has been produced before the District Forum. In these circumstances, I see no reason to interfere with concurrent finding of fact returned by the fora below that the petitioner had paid only Rs.1,91,478/- to the respondent no.1. Therefore, the orders

passed by the fora below to the extent principal amount is concerned does not call for any interference.

As far as interest is concerned considering the cost of finance in the market at the relevant time, I am of the considered view that the respondent no.1 should pay interest @ 12% p.a. and the said interest should be paid from the date of payment and not from the date letter dated 20.04.2001 was written. The orders passed by the fora below are therefore modified by directing the respondent no.1 to refund the principal amount of Rs.1,91,478/- along with compensation in the form of simple interest @ 12% p.a. on the said amount w.e.f. date of each payment till the date on which the said refund is paid along with compensation in terms of this order. The respondent no.1 will also pay the cost of litigation awarded by the District Forum to the petitioner/complainant. The revision petition stands disposed of accordingly.