IMPORTANT POINT
When the terms of the agreement are not adhered to by the builder, he is liable to refund the amount with interest and costs.

V.K. Jain, Presiding Member—The learned counsel appearing for the appellants seeks yet another adjournment on the ground that the appellant No.2 Mr. Nandlal Thakkar who is an Advocate by profession, is not well. On the last date of hearing also, adjournment was taken on the ground that Mr. Nandlal Thakkar was suffering from Chikungunya. Another adjournment on the same ground is not justified considering the age of the case. The Consumer Complaint by the respondent was instituted way back in the year 2000 whereas this Appeal itself was filed in the year 2012. Thus, the Consumer Complaint was instituted more than 18 years ago whereas the appeal is pending before this Commission for last more than six years. Considering the age of the case, no further adjournment on any ground is justified. I have therefore, heard Mr. Shighra Kumar, Advocate who appears for the appellants as well as the learned counsel for the respondents.

2. The case of the complainants/respondents who are a private limited company and its Attorney is that pursuant to the brochure/booklet issued by the appellants in respect of a project namely ‘Trishala Luxurious Residential Apartment’, they made payment of Rs.7,27,575/- to the appellants in cash and by cheques against the total price of Rs.7,97,785/- for purchase of a residential apartment. Rs.72,210/- out of the agreed sale consideration, was to be paid at the time of delivery of possession. This is also their case that though the possession was to be delivered by April-May 1996, they realized by 04.12.1995 that the promise of delivery of possession by that time was false, the construction having being stopped by the appellants. The complainants therefore, approached the concerned State Commission by way of a Consumer Complaint seeking refund of the amount paid by them alongwith interest and compensation.

3. The complaint was resisted by the appellants who inter-alia stated in their written version that the land on which a building was to be constructed by them, belonged to a society and the payment received from the complainants were on behalf of the said society for which receipts were duly given to them. It was also alleged in the written version filed by the appellants that there were outstanding bills against the society which the said society had not paid.

4. The State Commission allowed the complaint by directing the appellants to pay a sum of Rs.7,27,575/- to the complainant alongwith 12% interest w.e.f. 24.11.1994 alongwith compensation and cost of litigation quantified at Rs.45,000/-. Being aggrieved, the appellants are before this Commission.

5. As noted earlier, it is not in dispute that payments were received by the appellants from the respondents/complainants. In para 5 (c) of the Consumer Complaint, the complainants pleaded payment of Rs.7,27,575/- to the OP and also pleaded issuance of two receipts; one bearing no.19 dated 02.12.1994 for a cheque of Rs.1,86,000/- and the other receipt no.52 dated 04.11.1995 for a cheque of Rs.1,75,000/-. It was alleged that some other receipts were also issued with the other cheques. It was further alleged that though the OPs/appellants had promised to issue receipts for the cash taken by them, those receipts were never issued. In reply to para 5(c) of the complaint, the appellants denied having given any assurance or promise to the complainants to make payment for the said flat with cash of Rs.2,00,000/-. No such figure however had been mentioned in the Consumer Complaint. The appellant further averred that they had received payment on behalf of the society and the question of receipt for cash payment did not arise as neither it was demanded nor it was received from the complainants. It would thus be seen that as against payment of Rs.7,27,575/- pleaded by the complainants, the appellants neither specifically denied having received that much amount from them nor did they plead any other amount as the payment received by them from the complainants.