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

    First Appeal No. 641 of 1993
    Decided On, 17 October 1996
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. JUSTICE V. BALAKRISHNA ERADI
    By, PRESIDENT
    By, THE HONOURABLE MR. JUSTICE S.S. CHADHA
    By, MEMBER
    By, THE HONOURABLE DR. (MRS.) R. THAMARAJAKSHI
    By, MEMBER & THE HONOURABLE MR. S.P. BAGLA
    By, MEMBER
    For the Appellants: O.P. Gupta, Advocate. For the Respondent: Nemo.


Judgment Text
Dr. (Mrs.) R. Thamarajakshi, Member:

1.This First Appeal has been filed against the order dated 8.10.93 of the Delhi State Consumer Disputes Redressal Commission in Complaint No. 209/92.

2. The complainants (appellants-herein) had entered into an agreement through their father with the opposite party on 3.2.82 for the purchase of residential flat No. 3 in the residential housing complex building at 10, Jamuna Raod, Civil Lines, Delhi. According to this agreement, the construction of the said flat was to be completed within 18 months from the date of commencement of construction. The complainants had paid to the opposite party a total amount of Rs. 57,750/- on 10.8.81 and 3.2.82 through cheques; another payment of Rs. 1 lakh was reportedly made in cash for which, however, no receipt was given. The originally allotted Flat No. 3 was unilaterally changed by the opposite party to Flat No. 21 as per their communication dated 22.3.82 in which they had also demanded the balance amount due as on that date. Subsequently, there were two communications from the opposite party in which it was admitted that flats were ready for occupation but possession could not be given since completion certificate had not been received from the MCD. The complainants alleged that the opposite party asked them to deposit some more amount which they refused to pay unless a receipt for Rs. 1 lakh deposited earlier in cash was given. Thereafter there was no communication from the opposite party. It was through the newspapers that the complainants reportedly came to know the fraudulent acts and litigations in which the opposite party was involved and they served a legal notice on the opposite party to which no reply was received. Subsequently the complaint was filed before the State Commission, Delhi. The Commission observed that the payment of Rs. 57,750/- deposited by the complainant to the opposite party was not disputed whereas no proof was adduced for payment of Rs. 1 lakh in cash. The Commission took note of the statement of the Counsel for the complainants that on a visit to the site it was found that Flat No. 21 had been demolished by the authorities leaving only a very small portion. The opposite party pleaded before State Commission that since the complainants had defaulted in payment of instalments according to the terms of the agreement he was not obliged to fulfil his part of the contract. It was also stated before the State Commission that there was a civil writ petition in the High Court for the issuance of the completion certificate. The complainants, however, submitted that they were prepared to pay the balance amount as soon as vacant possession of the flat was given to them. Considering these facts, the State Commission ordered the opposite party to refund Rs. 57,750/- to the complainant with interest @ 18% per annum.

3. When the appeal against this order came up before us, the notice of the same could not be served on the opposite party due to non-availability of the correct address. We, therefore, directed the appellants-complainants to cause the notice to be published in one issue of the 'Indian Express' (Delhi Edition) stating that the appeal will be posted for final disposal on 22.8.96. However, the opposite party did not appear on that date and the appeal was heard ex-parte.

4. We have considered the records before us and heard the Counsel for the appellants. While the appellants have paid some installments for the flat, they have defaulted in making the subsequent payments in terms of the agreement. There is also a dispute on the payment of Rs. 1 lakh reportedly made in cash. It is also a fact that as per agreement of 3.2.82, construction was to be completed within 18 months from the date of start of construction. However, only in 1987/88 the opposite party intimated the appellants about the problem of completion certificate and difficulty in handing over the possession of the flat; there is thus default on the side of the opposite party too. In the light of the aforesaid, we remand the cas

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e to the State Commission for ascertaining whether the flat originally allotted to the complainants or any other similar flat is available and if so, whether relief to the complainants could be granted in terms of direction of allotment of a flat to the complainant on payment of balance amount after taking into account the payments already made through cheques. The appeal is disposed of as above with no order as to costs. Appeal disposed of.
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