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Tanu Constructions Colonizers & Developers v/s Arvind Kumar Mandal

    Revision Petition No. 202 of 2021
    Decided On, 08 July 2021
    At, National Consumer Disputes Redressal Commission NCDRC
    By, MEMBER
    For the Petitioner: H. Chandra Sekhar, Advocate. For the Respondent: -----

Judgment Text
1. Heard Mr. H. Chandra Sekhar, Advocate, for the petitioner.

2. This revision has been filed against the order of State Consumer Disputes Redressal Commission, Chhattisgarh, Raipur, dated 26.10.2020, passed in Appeal No. 20/300 of 2020 (arising out of the order of District Consumer Disputes Redressal Forum, Durg, dated 09.07.2020, passed in Consumer Complaint No. 18/848 of 2018), whereby District Consumer Disputes Redressal Forum, Durg has allowed the complaint and directed the petitioner to pay an amount of Rs.10,85,000/- along with interest @ 9% per annum from 19.06.2015 till its payment, Rs.1,00,000/- towards mental agony of the complainant and Rs.1000/- as cost and the appeal of the petitioner, filed from the aforesaid order, has been dismissed.

3. The office has reported that the revision has been filed with delay of 12 days. In view of pandemic Covid-19, in the country and imposition of lock-down, the delay in filing of the revision is condoned.

4. 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.

5. 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.

6. District Consumer Disputes Redressal Forum, Durg, by its judgement dated 09.07.2020, found that the complainant had paid the amount of instalments on due dates as mentioned in the agreement dated 24.02.2012. The petitioner had to complete construction till 24.02.2015 and hand over possession of the flat to the complainant but he had failed to deliver possession on due date. The petitioner returned an amount of Rs.1,16,000/- till 31.01.2018, while the complaint was filed on 17.07.2018. Cause of action for return of money arose subsequent to 31.01.2018, when the petitioner stopped to return of money as such the complaint was within time. On these findings, the complaint was allowed for the amount as stated above.

7. The petitioner filed an appeal (registered as First Appeal No. 20/300 of 2020) from the aforesaid order. State Consumer Disputes Redressal Commission, Chhattisgarh, Raipur vide judgement dated 26.10.2020, upheld the findings of District Consumer Forum and dismissed the appeal. Hence this revision has been filed.

8. 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.

9. We have considered the arguments of the petitioner and examined the record. The facts relating to the execution of the agreement dated 24.02.2012 and payments of various instalments as per agreement i.e full payment up to 19.06.2015 have been stated in pargraph-3 of the complaint. The petitioner in his written statement has admitted pargraph-3 of the complaint. The facts admitted need not be proved. The petitioner has nowhere stated that he had completed the construction till July 2015 and obtained completion certificate. The electricity connection and registration charged had to be paid at the time of execution of final sale deed and not prior to it. In any case the petitioner did not give any demand letter in this respect. In the written statement, the petitioner had not taken any plea that due to default committed by the complainant, the agreement was cancelled by it as such he cannot be permitted to take this new plea in the revision. From the aforementioned facts it is fully proved that the complainant had not committed default in payment of the instalment rather the petitioner had failed to raise construction within agreed period and hand over possession to the complainant. Thus there was deficiency of service on his part of the petitioner. It was not entitled to deduct 20%. It is for this reason, the petitioner has not raised any plea in this respect before District Forum.

10. So far as cause of action is concerned, cause of action for delivery of possession arose on 19.06.2015, when last instalment was paid by the complainant. At that time, the construction was not complet

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ed as such the petitioner agreed to return money. He started returning money from 21.07.2015. From 21.07.2015 to 31.01.2018, the petitioner had returned total Rs.1,16,000/-. After 31.01.2018, the petitioner stopped returning of the money and giving any reply to the complainant, then complaint was filed on 17.07.2018, which was well within time as the cause of action for return of the money arose when the petitioner had stopped payment. The judgments of State Consumer Disputes Redressal Commission and District Consumer Dispute Redressal Forum do not suffer from any illegality. The revision has no merit and is liable to be dismissed. O R D E R In view of aforementioned discussion we do not find any merit in the revision. The revision is dismissed summarily.