SUSHILA DEVI vs RAJ SUDHA TOWERS (P) LTD.

THIS complaint has been filed by Smt. Sushila Devi w/o Sh. Baldev Raj R/o KD-41C Ashok Vihar Phase-I, DDA M.I.G. Flats, Delhi-52 against M/s Raj Sudha Towers (P) Ltd, Cannaught Place, New Delhi and Sh. Rajinder Jaina s/o Sh. Tek Chand, Chairman-cum-Managing Director of M/s. Raj Sudha Towers respondents.

BRIEF facts of the case are that the respondents had claimed and represented that they were owners of plot No. 28, Ashok Vihar Phase-I, Delhi and that they were builders and were going to construct the building known as "Rajindra''s Terpanth Market" on the abovesaid plot. The respondents offered space No. RTM-l9, located on the basement floor of the said building having an area of 72 sq. ft. at the rate of Rs. 1,000/- pr sq. ft. of the super area. That on the representation made by the respondents one Sh. D. N. Sharma s/o Sh. Suraj Bhan Sharma R/o B-4/48, Ashok Vihar, Delhi-52, agreed to purchase the said space having an area of 72 sq. ft. at the rate of Rs. 1,000/- per sq. ft. and deposited a sum of Rs. 10,800/- (Rs. 100/- in cash and Rs. 10,700/- through Cheque No. 641278 dated 16.3.1984. vide receipt No. 714 dated 19.3.84. The said shop alongwith essential services of water and electricity was to be delivered against the total payment of Rs. 72,000/- for which the respondents entered into a signed licence-deed on 19th September, 84 with said Sh. D.N. Sharma. Thereafter, Sh. D.N. Sharma, deposited the following additional amounts with the respondents :- (i) Rs. 10,800/- through cheque No. 806311 dated 14.4.84 drawn on Canara Bank against receipt No. 727 dated 14.4.84. (ii) Rs. 10,800/- through cheque No. 806313 dated 15.5.84 drawn on Canara Bank against receipt No. 733 dated 15.5.84. (iii) Rs. 25,200/- through cheque No. 017424 dated 30.9.85 drawn on Punjab National Bank against receipt No. 1354 dated 1.10.85.

Sh. D.N. Sharma thus deposited a sum of Rs. 57,600/- with the respondent''s company. Thereafter, Sh. D.N. Sharma sold all his rights in the said shop for valuably consideration to the complainant and the complainant/petitioner subsequently applied for transfer of the said space No. RTM-19. The respondent after charging the transfer fee of Rs. 3,000/- (for which no receipt was issued inspite of the demands) transferred the space in favour of the complainant after completing the necessary formalities. That endorsement to this effect was made on the deed during May, 1986. That the signatures of the complainant were also obtained by the respondents on the licence-deed on which earlier signatures of Sh. D.N. Sharma had been got affixed. The signatures of Sh. D.N. Sharma were also obtained for surrendering the documents in favour of the complainant. Thereafter, the complainant was asked to deposit the following amounts which she deposited : (i) Rs. 10,800/- vide receipt No. 1386 dated 12.8.86 through cheque No. 006545 dated 10.8.86 drawn on Punjab National Bank. (ii) Rs. 3,600/- vide receipt No. 1750 dated 16.6.88 through cheque No. 412528 dated 15.6.88 drawn on Punjab National Bank.

After depositing the above detailed two payments of Rs. 14,600/- total payments amounting to Rs. 72,000/- was completed as per agreed terms in favour of the respondents. That the respondents did not hand over the possession of the space inspite of several contacts and requests. When the husband of the complainant visited the respondents on 29.4.89, the respondents asked for further payment of Rs. 24,786/- on account of miscellaneous charges like increase in price of steel and cement, maintenance charges, house-tax, mutation charges, registration charges & interest at the rate of 25% etc. In this regard they also handed over a letter dated 29.4.89, in which the detailed break-up of the above extra demand of Rs. 24,786/- was indicated. That the complainant had no alternative but to deposit the amount under protest, so that she could be delivered the possession of the space. The respondents received the above amount vide receipt No. 1852 dated 2.5.89. They also made the following remarks on the said receipt: "Part payment RTM-19 subject to making balance due Rs. 12,782/-as per demand note No. RST/RTM/19 dated 10.4.89 calculated upto 31.3.89 latest within 3 days". This amount of Rs. 12,782/- was over and above the demand of Rs. 24,786/- and was not justified. The complainant stated that no letter of possession has ever been issued to her inspite of various visits made by her personally and her husband. The complainant further added that she also came to know that the said space on the basement had been constructed without authorisation and without a sanctioned plan from the DDA and there was no electricity and water supply in the building nor separate meters had been provided. The complainant staled that she has been duped to the tune of Rs. 99,786/- paid by her to the respondents. It was further mentioned in the complaint that enquiries have also revaled that the respondents were neither owners nor the land-lords of the said building and as such a fraud had been committed upon the complainant and that the respondents were illegally retaining the amount of Rs. 96, 786/- plus Rs. 3,000/- paid in cash for which no receipt was issued. The complainant has claimed for refund of principle amount of Rs. 99,786/-alongwith interest @ 24% and the damages as relief.

The respondents in their written statement raised an objection that the case could not against the respondents as they were carrying on the business of sale and purchase of immovable property which subject was not covered under the provisions of Consumer Protection Act. The respondents however, admitted that the space under dispute RTM-19 in the basement was allotted to Sh. D.N. Sharma vide agreement dated 19.4.87 and that subsequently, the rights of the same were got transferred to the present complainant. The respondents denied the receipt of Rs. 3,000/- as transfer charges. The respondents also submitted in their statement that no amount over and above the agreement had ever been demanded from the complainant.

THEY however, admitted that all the terms and conditions as were applicable to the original allottee Sh. D.N. Sharma were applicable to the complainant. THEY denied the allegation that there was no electricity fitted in the premises. THEY further stated in their reply that various premises have been allotted and possession given to other allottees and the complainant was also offered the space but she failed to take possession. The respondents have further stated that there was no difference between super area and the covered area and that the allottees were to be delivered possession proportionately, considering the availability of common facilities. In support of her claim the complainant submitted her own affidavit dated 6.12.90 wherein she verified on solemn affirmation the various facts narrated in her complaint. No evidence by way of affidavit or otherwise in furtherence to their written statement was however, lead by the respondents.

WE have examined the record carefully and heard both the parties at length. The factum about the booking of the space originally by one Sh. D.N. Sharma with the respondents at the agreed rate of Rs. 1,000/- per sq. ft. is not denied by any of the parties. Further transfer of the rights of Sh. D.N. Sharma in favour of the complainant is also an admitted fact on record. The various payments amounting to Rs. 96,786/- have also not been denied by the respondents. They have only challenged/objected to the payment of Rs. 3,000/- which was purportedly paid in cash by the complainant for which as per their version no receipt was issued by the respondents. All other payments were made through cheques drawn on various banks at given stages and the respondents have not raised any objection regarding receipt of these payments. The respondents have however, raised a preliminary objection that the dealings immovable property were not covered under the mischief of Consumer Protection Act. It was now a well settled law that facilities and service for housing etc., are covered by the provisions of the Act and this contention of the respondents has no force and is rejected. The main contention of the complainant in the instant case was that the respondents were neither the owners nor the land-lords of the said building and whatever construction had been made on the said plot was unauthorised and has not been approved or sanctioned by the DDA or the MCD and as such the same could not be used for commercial purposes. On closer scrutiny of the written statement submitted by the respondents none of the above pleas raised by the complainant have been rebutted. Even during the course of arguments, the learned Counsel for the respondents could not satisfy the Commission on the above points. In case the respondents had a clear title over the plot of land they could have placed before us the relevant documents of the property which were supposed to be in their possession. Similarly for the reasons best known to the respondents they have failed to bring to our notice any sanctioned plan or the ''Completion Certificate'' issued by the D.D.A., or the M.C.D. In the absence of such evidence and the sworn affidavit submitted by the complainant in support of these pleadings, we have come to the inescapable conclusion that these contentions of the complainant stand unrebutted. With regard to the payment of Rs. 3,000/- as transfer fee some where during May, 1986 for which, as per claim of the petitioner, no receipt was issued, we do not find any substance. The complainant has procured the endorsement in their favour on the licence deed, copy of which was placed before us. The signature of Smt. Sushila Devi, complainant do exist on all the pages of this deed; In case this payment was made by her she could have mentioned this fact anywhere on the deed while affixing her signatures. In the absence of any documentary evidence the factum of this part of payment of Rs. 3,000/- does not stand established.

IN the light of the above discussed facts, we come to the logical conclusion that the respondents did receive a total payment of Rs. 96,786/- against an amount of Rs. 72,000/- for allotment of 72 sq. ft. of area in the said building as was originally agreed between the parties in the year, 1984. It is also on record that the said space has not yet been handed over by the respondents to the complainant. Further in the absence of any evidence to the contrary we are inclined to believe the version of the complainant that the title of the respondents over the said plot of land was doubtful and that the building was constructed unauthorisedly as no documents from any of the local bodies to contradict this claim were either placed on record or brought to our notice by the respondents.

WE, therefore, accept the claim of the petitioner to the extent of Rs. 96,786/-. The respondents are accordingly, ordered to refund the said amount to the complainant with 12% interest to be calculated on the various payments made by the complainant or her predecessor-in-interest from the respective dates of payments upto the date of actual refund to the complainant. No order as to costs. Petition allowed.