SAMBHAVANA BUILDERS P. LTD. vs REVATHI IYER

DISTRICT Forum-II disposed of six complaints by a common order recorded in Complaint Case No. 1563/93 Pushpa Raju v. M/s. Sambhavana Builders P. Ltd. and Smt. Bhavani S. Iyer, Managing Director. Against that order these appeals (A-158/95 M/s. Sambhavana Builders P. Ltd. & Ors. v. Ms. Revathi Iyer, A-160/95 M/ s. Sambhavana Builders P. Ltd. & Ors. v. Indira Gupta, A-162/95 M/s. Sambhavana Builders P. Ltd. & Ors. v. Mrs. Rukmini Gopal and A-163/95 M/s. Sambhavana Builders P. Ltd. & Ors. v. M/s. Pushpa Raju) have been filed. As the questions raised are common, these appeals are being disposed of by this order.

THE appellants floated a scheme for construction of residential flats on a piece of land in village Mehrauli. THE land has been purchased by the appellant by direct purchase from the owners. Two types of flats numbering 75 were to be constructed. THE public was invited to enrol. THE complainants enrolled for buying those flats and deposited various amounts beginning from 1989 onwards. No construction having started the complainants and others claimed refund of their amount. THE amount was refunded in some cases. It was not refunded in other cases. Even where the amount was refunded, interest was not paid. THE complainants accordingly instituted the aforesaid complaints for refund of the amount paid by them along with interest on the ground that the O.P. had been guilty of unfair trade practice and was also deficient in rendering service to the complainant consumers. The complaints were contested. The plea taken was that necessary permission for change in land use had been obtained, construction activity was going apace and the complainants having themselves withdrawn, were estopped from filing the complaints. It was also pleaded that there was no deficiency in service.

On an evaluation of the material placed on record D.F.-II came to the conclusion that the O.P. failed to place on record cogent evidence to show that necessary permission for change in land use had been obtained. It was further held that building plans which were claimed to have been sanctioned had not been produced. It was, therefore, held that the O.P. was guilty of unfair trade practice and there was also deficiency in service and accordingly it was directed that the amount deposited by the various complainants be refunded with interest @ 18% p.a. from the date of making the deposit till payment. The O.P. was also directed to pay Rs. 2,000/- to each of the complainants as damages for harassment and costs of the proceedings. It is against the said order that these appeals have been preferred.

MISS Bhavani S. Iyer, Managing Director of M/s. Sambhavana Builders has placed on record an affidavit in the course of the appeal. It has been stated therein that in Original Petition No. 52/94 preferred by a group of some other persons, the National Commission had directed the appellant herein to maintain statusquo with regard to its assets. This has virtually prevented the appellant from disposing of the property of the appellant company. Reference has also been made to Suit No. 551 /95 filed by Mahesh Sayal & Ors. against the appellant company in the High Court of Delhi in which the High Court by its order dated 13.3.1995 restrained the appellant, from transferring, alienating, selling or parting with the possession of the land belonging to the appellant company. Reference has also been made to a petition filed by Satyam Shivam Sundaram Charitable Trust u/Secs. 433 and 434 of the Indian Companies Act, 1956 for winding up of the appellant company. The petitioners are restrained by different orders from disposing of the land and other assets of the company till further orders. It has further been stated in the affidavit that the aforesaid developments had to be taken into consideration. There is a clear distinction between liability to pay a certain amount and the actual recovery thereof. The various proceedings referred to in the additional affidavit are only regarding recovery of the money and undoubtedly the complainants would have their remedy for the recovery of the amount in accordance with law including the orders passed by the High Court and the National Commission. In so far as the merits of the appeal are concerned we have not shown any material to justify the inference that permission for change in land use was obtained and that building plans were got sanctioned from the Competent Authority. The irresistable inference is that the appellant was deficient in rendering service and also guilty of unfair trade practice. We do not find any infirmity in the order under appeal and accordingly dismissed the appeal in limine.

A copy of this order be placed in the connected appeals. Parties be informed. Appeal dismissed.