NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL No. 566 OF 2006 (from the order dated 18.4.2006 in Comp. No.80/2001 of the State Commission, Gujarat) Mrs. Ratna Alexander Bhambhani Appellant Versus Ruby Complexes Pvt. Ltd. and others Respondents BEFORE : HONBLE MR.JUSTICE M.B. SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER For the Appellant : Mr. Sukumar Pattjoshi, Advocate For the Respondents : Mr. S.J. Mehta, Advocate 13.08.2007 ORDER
M.B. SHAH, J., PRESIDENT
Heard the learned counsel for the parties.
Being
aggrieved and dissatisfied by the judgement and order dated 18.4.2006
passed in Complaint No.80 of 2001 by the State Consumer Disputes
Redressal Commission Gujarat State, at Ahmedabad,
the complainant has preferred this appeal.
Undisputedly,
by an Agreement dated 31.12.1996 the complainant has agreed to purchase a flat
for a consideration of
Rs.9,10,000/-. It was also agreed that possession of the said flat
was to be delivered to the complainant on or before 31.12.1998.
It is the say of
the complainant that the complainant paid a sum of Rs.30,000/- on
6.9.1996, Rs.7,20,000/- on 28.2.1997 and Rs.1,60,000/- on 1.1.1997
i.e. in all Rs.9,10,000/- to the respondents. There is no dispute between
the parties with regard to payment of the above stated amounts.
She further
contends that in addition to the aforesaid
amounts, she had paid an amount of Rs.
3,60,000/- in cash on 26.12.1996 to the Opp.
Parties-Builders. In support of this contention,
reliance is placed upon the Pass Book of Bharat
Overseas Bank which shows that the said amount of Rs.3,60,000/- was
withdrawn by the complainant on the said date.
She has
also relied on the cheque
given to Ms. Bhadresh K. Shah for 1501 Pounds encashable at National Westminister
Bank, London. Similarly,
another cheque was
issued for 1501 Pounds in favour of Jayshree B. Shah and a third cheque
was issued in favour of Kalpana
S. Shah on the same Bank. All the cheques
were issued on 29.12.1996. The total comes
to 4603 Pounds Sterling.
On that basis, the Complainant has calculated the
equivalent value in Indian Ruppee at
Rs.2,90,000/-. The Complainant has pointed out that the cheques were issued at the instance of one of the partners
of the builder, namely, Mr. Badresh K.
Shah. Mrs. Jayshree B. Shah
is the wife of Badresh K. Shah. The said cheques were credited in favour of respective persons, who are the relatives of the
partners of builders.
Thereafter, as
the possession of the flat was not delivered, as agreed, the complainant was
required to approach the State Commission by filing Complaint on 4.5.2001 with
a prayer to direct the Builders to complete the
entire work of the flat as per the specification shown in the advertisement and
to pay a sum of Rs.19,99,950/- with interest @ 13.5% per annum from the date of
application till realization. The amount of Rs.19,99,950/-
was calculated on various counts, as mentioned in paragraph 23 of the
complaint.
After
considering the facts, the complaint was partly allowed by the State
Commission and the Builders were directed to carry out the remaining work as
per the brochure, within one months time after mutually adjusting
the dates, failing which builders were directed to pay a sum of Rs.1,27,650/-
with costs of Rs.2500/-.
Findings:
Learned counsel
appearing on behalf of the appellant submitted that the State Commission
materially erred in not considering the payment of the extra amount by
the complainant to the Builders, by merely
observing that as there was a denial by the builders with regard to the
receipt of the three cheques on the names of the
relatives of Opp. Party(s) in pound sterling because
such transactions on the face of it may raise ugly question
unrelated to this complaint and will not contribute to solve or help to solve
the complaint.
In our view, the
approach of the State Commission is totally unjustified because there is no
denial on the part of Mr. Badresh K. Shah with regard
to the said cheques. Further,
the complainant has issued the three cheques
on the same day i.e. 29.12.1996 in favour of
relatives of partners of the builders. There is no other reason mentioned by the Builder to contend that the
complainant was required to issue the cheques in the
name of said three ladies in London
who are not related to complainant.
Further, in the
evidence, which was recorded by the State Commission, Mr.Badresh
K. Shah has admitted that Mrs. Jayshree B. Shah is
his wife and that he does not remember whether
the cheque was drawn on the Nat West
Bank. He has not denied the issuance of the said cheques or receipt of the said amount.
Hence, the receipt of the said amount cannot be
disputed as the same was paid by cheques and
the cheques were also encashed
by the relatives of one of the partners. That
amount comes to Rs.2,90,000/-. Considering this aspect, respondents are
required to refund the amount of Rs.2,90,000/- .
Secondly, it is
contended by the complainant that she paid Rs.3,60,000/-
in cash on 26.12.1996 to the builders as demanded by them. For this
purpose, she has relied upon the Bank entry whereby she has withdrawn Rs.3,60,000/- in cash on 26.12.1996. In our view, it would
be difficult for us to accept the said
contention as there is no other evidence in support of the say of the
complainant that she was compelled to pay the said amount in cash to the
builders. We cannot presume that the said amount was paid to the
builders.
Further, apart
from the aforesaid payments, it is apparent that the flat remained incomplete
for years together and it was finally completed after the direction issued by
this Commission. As against this, learned counsel for the Opp. Party pointed out that even before the State
Commission, Builders were prepared to complete the construction work as per
requirement of the brochure but the complainant was not permitting them to
complete the said work and she was regularly visiting the UK.
Learned counsel
Mr. Mehta also submitted that the complainant
was required to pay maintenance charges as well as car parking and development
charges which according to Mr. Mehta comes to Rs. 2 lacs which she has not paid uptil
now despite taking possession. Therefore, the builders were not at fault in
completing the construction work.
It appears that
possession of the flat was given to the complainant by the intervention of
Police help on 11.11.2000. No doubt, it was an incompleted flat. As the dispute persisted, as per direction
given by the State Commission, registered documents were executed in favour of the complainant with regard to the said
flat. It is to be stated that on the basis of our direction Punchnama with regard to the construction of the flat was
prepared. As per the Punchnama the flat was fully constructed as per the
brochure. No doubt, there is an endorsement made in the Punchnama by the complainant that it was not to her
satisfaction.
Further,
the complainant has pointed out that as per the payment schedule which
has been given by the Opp. Parties, covered car
parking charges was for a sum of Rs.50,000/- and for life time maintenance
charges and development charges were required to be paid i.e. Rs.40,000/-
and Rs.25,000/- respectively. The total comes to Rs.1,15,000/-.
Considering the
aforesaid aspect, in our view, it would be just and proper to direct the
respondents to refund the amount of Rs.2,90,000/- by deducting
Rs.1,15,000/- which comes to Rs.1,75,000/- and also pay interest @ 10% p.a. on
Rs.9,10,000/- for 1 year and 10 months delay in delivering the
possession, which comes to approximately Rs.1,66,833/- and cost of litigation
i.e. in all Rs.50,000/-. Respondents, in all,
shall pay a sum of Rs.3,91,833/- ( Rs.1,75,000 +
Rs.166,833/- + Rs.50,000/-) within a period of 6 weeks from today. The
Appeal stands disposed of accordingly.
Sd/-
J.
(M.B. SHAH)
PRESIDENT
Sd/-
(RAJYALAKSHMI RAO)
MEMBER
SG/17