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Shikha Gupta & Another v/s Skipper Construction Co. Pvt. Ltd.

    Case No. C-209 of 1992
    Decided On, 08 October 1993
    At, Delhi State Consumer Disputes Redressal Commission New Delhi
    By, THE HONOURABLE MR. JUSTICE R.N. MITTAL
    By, PRESIDENT
    By, THE HONOURABLE MS. S. BRAR
    By, MEMBER & THE HONOURABLE DR. A.N. SAXENA
    By, MEMBER
    For the Complainants: O.P. Gupta, Advocate. For the Opposite Party: Paramjit Kaur, Advocate.


Judgment Text
Miss S. Brar, Member :

1. 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 respondent. Therefore, no reliance can be placed on the claim of the complainant.

8. The attorney for the complainants on a visit to the site of the flats found that flat No. 21 allotted to his clients does not exist any longer as it has been demolished by the authorities perhaps it having been built in violation of the approved building plans. Only a very small portion of it is existing. In view of the non existence of the said flat the claim of the complainants for its allotment to them can not be met.

9. The respondent has contested the issue of complainant being a consumer and the State Commission’s jurisdiction to entertain the claim. He pleads that the complainants are seeking specific performance of the contract for which the remedy lies in the Civil Courts and therefore the complaint does not lie in this Commission. This is contested by the complainants, who claim to be consumers. We have examined the issue and find that the complaint falls within the purview of the Consumer Protection Act under Section 2(1)(o) where housing is covered and therefore the objection of the respondent does not sustain.

10. The respondent has also pleaded that since the complainant has defaulted in payments according to the terms of the agreement therefore, he is not obliged to fulfil the contract as prayed for by the complainant. The default in payment is borne out by the documents but the complainants have however pleaded that they are prepared to pay the balance amount as soon as vacant possession of the flat is given to them through their authorised attorney. The respondent’s Counsel has pleaded that unless the completion certificate is given by the civil authorities the flat could not be handed over. The owner of the land and the respondent have filed a civil writ petition in the High Court for the issuance of the completion certificate.

11. After taking into consideration all the facts and circumstances of the case, we are of the opinion that the complainants are entitle to the reimbursement of the amount of Rs. 57,750.00 paid by them.

12. The amount of Rs. 57,750.00 has been utilised by the respondents from the dates of payment i.e. 10.8.81 Rs. 21,000/-and 3.

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2.82 Rs. 36,750/- uptil now and the complainants have been deprived of the use of that money for which they need to be compensated. We award interest on the amounts at the rate of 18% p.a. from the dates of payment to the date of realisation. 13. Consequently, we partly accept the complaint with costs and direct the respondent 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 this order failing which action shall be taken against them under Section 27 of the Consumer Protection Act, 1986. Costs Rs. 2,000/-. Complaint allowed with costs.
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