NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
C. Viswanath, Presiding Member and Ram Surat Ram Maurya, Member
Tanu Constructions Colonizers
& Developers – Petitioner
versus
Arvind Kumar Mandal – Respondent
Revision Petition No.202 of 2021
(Against the Order dated 26/10/2020 in Appeal No. 300/2020 of the State Commission Chhattisgarh)
Decided on 8.7.2021

IMPORTANT POINTS
(1) Date of complaint be considered from the date compensation/refund stopped, not date of delivery – complaint is in limitation period of agreement.
(2) Self – created deficiency on part of petitioner does not entitle it to any benefit.
(3) Initial deficiencies should be raised at the first instance before the Distt. forum and not in subsequent forums.

Headnote:

Consumer Protection Act, 1986 – Section 21(b)(Consumer Protection Act, 2019 - Section 58) – Revision Petition - Respondent invested in multi-storey building built by petitioner and paid all installments on time – Petitioner failed to deliver possession of flat according to property agreement and partially returned consideration paid by the respondent (Rs. 1,16,000 out of Rs.12,00,001) – Respondent filed complaint before Distt. Forum as Petitioner stopped paying refund or responding – Distt. Forum passed order for payment of balance amt., along with interest, costs and Rs. 1 Lakh for mental agony – Petitioner filed an appeal before State Commission, which upheld findings of the Distt. Forum – Petitioner filed revision petition on grounds of delay in filing complaint and failure to pay electricity charges, petitioner also alleged that he was due to be paid 20% of amount – National Commission ruled that deficiency was on part of petitioner, not the respondent; respondent paid installments on time and complaint was done only after he stopped paying refund, petitioner also did not raise the defect in Distt. Forum – National Commission upheld State Commission and District Commission order.

Held: Arvind Kumar Mandal (the respondent) filed a consumer complaint (registered as Consumer Complaint No. 18/848 of 2018), before District Consumer Disputes Redressal Forum, Durg, against Tannu Constructions, Colonizers & Developers (the petitioner), for refund of Rs.12,01,000/- along with interest at the rate of 18% per annum from the date of booking of the flat till its payment, Rs.5,00,000/- for mental agony and the costs of litigation. It has been stated in the complaint that the petitioner advertised for construction of multi-story building in the name of Vasundhara Apartments and sale of 2 BHK and 3 BHK flats in it, over Sy. No. 3, R.N.M. Bhilai-03, Taluk-Patan, district Durg. The complainant booked 2 BHK flat (Super built up area 794 Sq. ft.), for total cost Rs.12,01,000/-. On 24.02.2012, the complainant deposited Rs.31,000/- through cheque No.433880, drawn on State Bank of India, Durg Branch and an agreement was executed between them. Balance sale consideration was required to be deposited within 41 monthly instalments, which were deposited on the schedule dates of instalments fixed in the agreement i.e up to 19.06.2015. According to the agreement, the construction had to be completed and possession over the flat had to be delivered on the date of deposit of last instalment but neither construction was completed nor was possession handed over. In spite of several reminders, the petitioner had failed to hand over possession of the flat to the complainant although on 03.04.2017, he had assured to give possession till last week of May, 2017. The complainant then demanded for return his money along interest as mentioned in the agreement. The petitioner started refunding and total Rs. 1,16,000/- was refunded up to 31.01.2018. Thereafter, the petitioner stopped refunding money and giving any reply of his messages which were sent to him on 24.03.2018, 01.04.2018 and 22.06.2018. On these allegations, the complaint was filed on 17.07.2018 along with delay condonation application.

The petitioner contested the case and filed his written statement 17.10.2018. The petitioner admitted the agreement dated 24.02.2012 and payment of instalments but stated that the complainant had to pay Rs.40000/- also towards electric connection, in addition to Rs.12,01,000/- but this amount was not paid as such possession was not delivered. The complainant has himself stated that the complaint had to be filed within 2 years from 19.06.2015 but it has been filed on 17.07.2018, with delay of 397 days. Delay in filing the complaint was not liable to be condoned. The petitioner also filed a counter affidavit in delay condonation application.

The counsel for the petitioner submitted that the complainant had to pay Rs.40,000/- towards electricity connection charges and registration charges as per clause 12 of the agreement but he did not pay that amount as such the agreement was cancelled on 19.06.2015. There was no deficiency of service on the part of the petitioner, rather the complainant had himself committed default. Cause of action for return of money arose on 19.06.2015 but the complaint was filed on 17.07.2018. Delay in filing the complaint has been illegally condoned. Under Clause-8 of the agreement, the petitioner was entitled to deduct 20% of the amount deposited by the complainant, which has not been considered. (Paras 4, 5 & 8)

Result: Revision Petition summarily dismissed.