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THE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, DELHI
Hon’ble Mr. Justice R.N. Mittal, President;
Miss S. Brar, Dr. A.N. Saxena, Members
SHIKHA GUPTA & ANR.—Complainant
versus
SKIPPER CONSTRUCTION CO. PVT. LTD.—Opp. Party
C-209 of 1992—Decided on 8.10.1993
Counsel for the Parties :
For the Complainants :Mr. O.P. Gupta, Advocate.
For the Opp. Party :Miss Paramjit Kaur, Advocate.
A consumer is entitled to refund of the advance paid for purchase of a flat with interest if the builder fails to deliver the possession of the flat and the flat allotted to the consumer does not exist anymore.
Headnote:
CONSUMER PROTECTION ACT, 1986 - HOUSING - SECTION 2(1)(O) - REFUND OF ADVANCE PAID FOR PURCHASE OF FLAT - INTEREST ON ADVANCE PAID - SPECIFIC PERFORMANCE OF CONTRACT - JURISDICTION OF CONSUMER COMMISSION - DEFAULT IN PAYMENT BY COMPLAINANT - NON-EXISTENCE OF FLAT DUE TO DEMOLITION - CONSUMER ENTITLED TO REFUND OF ADVANCE PAID WITH INTEREST.
Fact of the Case:
Complainants entered into an agreement with the respondent company for the purchase of a residential flat. Complainants paid Rs. 57,750/- as advance. The construction of the flats was to be completed in 18 months from the date of start of construction. However, the possession of the flat was not given to the complainants even after the completion of the construction. Complainants came to know through newspapers that the respondent company was involved in fraudulent acts and litigations. Complainants served a legal notice on the respondent company, but no reply was received. Complainants filed a complaint before the Consumer Commission seeking refund of the advance paid with interest and possession of the flat.
Finding of the Court:
The Consumer Commission found that the complainants were consumers within the meaning of Section 2(1)(o) of the Consumer Protection Act, 1986. The Commission also found that the respondent company had utilized the advance paid by the complainants from the dates of payment and the complainants had been deprived of the use of that money. The Commission further found that the flat allotted to the complainants did not exist anymore as it had been demolished by the authorities.
Issues: 1. Whether the Consumer Commission has jurisdiction to entertain the complaint? 2. Whether the complainants are entitled to refund of the advance paid with interest? 3. Whether the complainants are entitled to possession of the flat?
Ratio Decidendi: 1. The Consumer Commission has jurisdiction to entertain the complaint as the complaint falls within the purview of the Consumer Protection Act, 1986 under Section 2(1)(o) where housing is covered. 2. The complainants are entitled to refund of the advance paid with interest as the respondent company had utilized the advance paid by the complainants from the dates of payment and the complainants had been deprived of the use of that money. 3. The complainants are not entitled to possession of the flat as the flat allotted to them did not exist anymore as it had been demolished by the authorities.
Final Decision: The Consumer Commission partly allowed the complaint and directed the respondent company to refund the amount of Rs. 57,750/- with interest at the rate of 18% p.a. from the date of the complaint till the date of payment within a period of three months from the date of the order.
Miss S. Brar, Member — This is a complaint under Section 12 of the Consumer Protection Act, 1986.
2. Facts in brief are that Smt. Shikha Gupta and Smt. Nidhi Gupta daughters of Mr. Satish Sarup Gupta entered into an agreement through their father with M/s. Skipper Construction Co. Pvt. Ltd. on 3.2.82 for the purchase of residential flat No. 3 in the Residential Housing Complex Building at 10 Jamuna Road, Civil Lines, Delhi, comprising covered area of approximately 1050 sq. ft. on the ground floor at the rate of Rs. 275/- per sq. ft. The address of the complainants at that time was 25, South 6th Floor Riviera Apartment, Mall Road, Delhi but have since shifted to B-8, 9 Raj Narain Road, Civil Lines, Delhi-54. Payment of Rs. 21,000/- was made through two cheques Nos. 316436 and 317544 dated 10.8.81 for Rs. 10,500/-each cheque drawn on Syndicate Bank Chandni Chowk Branch which were given to the respondent Company’s Director in the presence of one Shri R.D. Bansal and Shri Nand Kishore Bansal prior to the agreement. This payment has been acknowledged by the respondent company vide their receipt dated 13.8.1981, Rs. 1 lakh is alleged to have been given in cash by Shri Rajindra Kumar Gupta, a friend of the complainant’s father on 10.8.81 to the respondent Co. for which no receipt was given by them. The construction of the said flats was to be completed in 18 months from the date of start of construction, as mentioned in the agreement, it was also mentioned therein that further 10% amount will be taken on completion of the lower ground floor roof slab. Two more cheques of Rs. 18,375/- each dated 3.2.82 were given to the respondent which was acknowledged on 18.2.82. Thus, there is no dispute about payment of Rs. 57,750/-.
3. Originally flat No. 3 was allotted to the complainant which was unilaterally changed by the respondent and as per their letter of 22.3.93 changed it to flat No. 21, for which written consent of the complainants were not taken. Thereafter there were two communications from the respondent company in which it was admitted by the latter that the flats were ready for occupation but possession could not be given since completion certificate had not been received from M.C.D. In yet a subsequent letter the above fact was reiterated and when the father of complainants visited the respondent company’s office, he was asked to deposit more cash, on being asked for the receipt in respect of the earlier cash deposited, he was told that receipt would be issued later on The father of the complainant refused to pay any further cash unless a receipt was issued for the Rs. 1 lakh paid earlier in cash. Thereafter, there was no communication from the respondent Co.
4. It was through the newspapers that the complainants came to know of the fraudulent acts and litigations in which the respondent company was involved and served a legal notice on the respondent to which no reply was received and silence on the part of the opposite party and this worried the complainants that the flat may not be given.
5. Shri R.K. Gupta, attorney contacted the respondent and was told point blank that they are not going to hand over the flat. The complainant has stated that they are ready to pay the balance amount for the flat and have prayed that the respondents be ordered to hand over the vacant physical possession of flat No. 21 residential housing complex building, 10, Jamuna Road, Delhi, to the complainants.
6. The respondent on his part has challenged the maintainability of the complaint before this Commission. His plea is that this is a prayer for specific performance of an agreement and therefore, only Civil Court would have jurisdiction. Therefore, the complaint be dismissed.
7. We have heard both the parties and gone through the documents produced before us and find that the receipt of Rs. 57,750/- is admitted by the respondent. No proof though has been adduced in respect of the Rs. 1 lakh said to be have been paid in cash which is contested by the
