SAROJ JAIN VERMA vs M.L.GOUD-Opposite party

THIS is a complaint under Section 17(a)(i) of the Consumer Protection Act, 1986 (for short the ''Act'') to claim the refund of the amount deposited for purchase of flat by the complainant with the opposite party with interest and compensation of Rs. 20,000/-, in all Rs. 6,16,720/-. The opposite party by its written statement resisted the complaint on various legal and factual pleas.

THE opposite party contends that the complaint is barred by time as the complainant has defaulted in payment of the instalments under the self financing scheme, therefore, vide letter dated 23.3.1994 (Document No. 8), the allotment was cancelled and the complainant was directed to take money back so deposited as per Clause (6) of the terms and conditions of the allotment letter after deduction of 10% of the amount or the amount without deduction after the completion of project. THErefore, the cause of action arose on 23.3.1994 while the complaint was filed on 14.11.1996. THE contention is meritless as on receipt of letter dated 23.3.1994 the complainant sent a registered letter (Documents No. 9) dated 23.7.1994 stating therein that as the project has not been completed, therefore, she will deposit the balance amount only after the completion of the project within 24 hours. In the said letter it was also stated that on different dates Rs. 3,10,000/- were deposited and not Rs. 1,00,000/-. On this, document No. 10 was sent by the opposite party requesting the complainant to send the photocopies of the receipts and documents, so as to help the opposite party to further decide the case of the complainant. THE complainant sent photocopies of the receipts but nothing was done. THEreafter, a registered A.D. notice was sent through Counsel on 17.1.1994 of which no reply was sent by the opposite party. Hence, the complainant feeling helpless filed the complaint. A statement has been made today that now the project has been completed. However, no evidence has been produced to that effect. THErefore, in such circumstances, the complaint cannot be thrown as barred by time as neither the amount was refunded nor the flat was allotted. On merits the opposite party admits the payment of Rs. 1 lac. However, the opposite party does not admit the receipt of Rs. 2.10 lacs issued by the Project Management, a different Firm. The complainant submits that this Firm was working for and on behalf of the opposite party and Mr. S.K. Nayar was in the employment of the opposite party who has filed the affidavit that he received the amount on behalf of the opposite party. The amount so received by him was deposited in the account of the opposite party. The opposite party is a Registered Limited Company, which has no concern with the Firm project. The amount was paid in cash to the Firm Project Management. If according to the complainant, the Firm Project Management was working on behalf of the opposite party and the said Firm had not deposited the amount in the account of the Company the said Firm ought to have been impleaded as party. The affidavit of Mr. Nayar carries no weight as it was filed after termination of his employment. Moreover the contract was with the opposite party and not with the Firm. Besides, it is also not understandable that huge amount of Rs. 2,10,000/- was paid in cash to a Firm and not to the Company with whom there was no contract. This required detailed enquiry on complex issue, which cannot be adjudicated in summary jurisdiction. The complainant if so advised may institute suit in the Court of competent jurisdiction for recovery of the same.

However, receipt of amount of Rs. 1 lac is admitted which was not refunded on the cancellation of the allotment on the pretext of default in payment of instalments, which was not correct looking to the fact that there was no progress in the construction. A prospective purchaser of a flat cannot be forced to wait indefinitely. The construction should be completed within the stipulated time or within a reasonable time. Therefore, the opposite party if cancelled the allotment ought to have returned the amount with cancellation letter. On the other hand the opposite party entered into further correspondence to settle the dispute. The opposite party even did not offer or deposit the amount during the pendency of the complaint which is pending since 1996. Therefore, we find that there was a deficiency on the part of the opposite party.

IN circumstances, we are of the opinion that the complainant is entitled to Rs. 1,00,000/- with interest thereon at the rate of 18% per annum from the date of last deposit that is 30.5.1992 till the date of payment. The prayer for award of additional compensation for not allotting the flat for such a long period cannot be accepted in the circumstances of the case. The decisions relied by the learned Counsel for the complainants are distinguishable on facts.

IN view of the above, we direct the opposite party to return the amount of Rs. 1 lac with interest at the rate of 18% per annum from the date of deposit i.e. 30.5.1992 with Rs. 5,000/- as costs of the proceedings within a period of 30 days from the receipt of the certified copy of this order. Accordingly, the complaint shall stand allowed. A copy of this order be conveyed to the parties. Complaint allowed.