R.N. Mittal, President:
1. Briefly the facts are that the respondent No. 1 is carrying on business as builders in the Union Territory of Delhi. They advertised in the papers, that flats would be provided to the public at large in a building complex to be constructed on plot No. 8 Laxmi Nagar, New Delhi and those who intended to have a flat should apply to them. He the complainant wanted to have a flat having an area measuring 475 sq. feet. He approached respondent No. 1 and deposited a sum of Rs. 50,000/- with them, vide receipt dated 25th February, 1982 and an amount of Rs. 9,500/- vide receipt dated 17th March, 1982 as earnest money towards the price of the flat.
2. It is averred that at the time of receiving the amount from the applicant the respondent represented to him that they had purchased the plot from respondent No. 2, DDA, for a consideration of Rs. 1,69,00,000/- and that they had deposited 25% of the price as earnest money with the said respondent.
3. Respondent No. 1 did not commence the construction work on the said plot till date though a period of many years had elapsed. They also did not pay the balance amount to the D.D.A. as per terms and conditions of the auction. The complainant had further pleaded that at the time when he deposited the amount within respondent No. 1, was also represented to him that the flat would be delivered within one year. But respondent No. 1 has not even taken the possession of the said plot, till date. In the circumstances, it is prayed that the respondent be ordered to refund the amount of Rs. 59,500/- alongwith interest @ 18% per annum which comes to Rs. 94,462/-.
4. The claim has been contested by respondents Respondent No. 1 in their reply admitted that they purchased a plot from the D.D.A. They also admitted that they received the amount of Rs. 59,500/- from me complainant. They, however, pleaded that respondent No. 2 did not keep its promise and failed to develop the plot and deliver the possession thereof to them. The respondent was not liable to refund the amount as claimed by the complainant. They also pleaded that the complainant had filed a winding up petition bearing No. CP 142/88 against the answering respondent which was pending in the Hon’ble High Court, and, therefore, the Commission had no jurisdiction to entertain the complaint.
5. Respondent No. 2 in the written statement pleaded that respondent No. 1 participated in the auction held on 19th February, 1982 and was declared as the highest bidder. They deposited an amount equivalent to 25% of the auction amount on the fall of the hammer but did not deposit the remaining 75% amount within a period of 90 days from me date of issue of demand letter. They made a representation, for granting extension of time to pay the same which was referred to the Central Government. On the direction of the Central Government a letter was issued to respondent No. 1 stating that the request for grant of extension of time could be granted subject to payment of interest @ 18% per annum on the balance amount. It is pleaded that there was no privacy of contract between the complainant and respondent No. 2 and therefore, the complaint was not maintainable against them.
The first question that arises for determination is, whether the complaint is maintainable by the complainant for refund of the amount from respondent No. 1. The matter has already been decided by the National Commission in UP. Avas Evam Vikas Parishadv. Garima Shukla, I (1991) CPJ 1 (NC), First Appeal No. 5/89 decided on 27-8-1989 and it was held that the Commission has the jurisdiction to try such matters. Consequently, we hold that we have jurisdiction to try the complaint.
6. The second question that arises for determination is, whether the complainant in view of the Company Petition No. 142/88 which is pending in the Hon’ble High Court, can file the complaint. Under the Companies Act, the creditor initiates action for winding up of the company and not for recovery of the amount. In the present case he has initiated proceedings for recovery of the amount. The two remedies sought by him are different. Therefore, we are of the opinion that the complainant inspite of initiating action under the Companies Act can file the present complaint.
7. The last question that arises for determination is, whether the complainant is entitled to recovery of amount deposited by him with respondent No. 1. It is not disputed that the amount was deposited by him for having a flat. The possession of the flat was to be given to him within one year after the deposit of amount. Respondent No. 1 even failed to take possession of the plot, construct the building and deliver possession of the flat to him. They even failed to deposit 75% of the balance price wide the D.D.A. in accordance with the terms and conditions of the
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auction. In the circumstances, we are of the view that the complainant is entitled to the refund of amount deposited by him from respondent No. 1 with interest. The rates of interest have gone high and we grant to the complainant interest @ 15% per annum. 8. For the aforesaid reasons, we accept the complaint with costs and direct respondent No. 1 to refund Rs. 59,500/- with interest @ 15% per annum from 17th March, 82 till the date of payment, within a period of two months. Costs Rs. 2,000/-. Complaint allowed with costs.