Delhi

StateCommission

RP/40/2014

M/S M2K INFRASTRUCTURE LTD. - Complainant(s)

Versus

RISHI SHARMA - Opp.Party(s)

06 Jun 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

                                              Date of Arguments: 30.05.2016

     Date of Decision: 06.06.2016

 

Complaint Case No.RP-40/14

In the matter of:

M2K Infrastructure Pvt. Ltd.

Through its authorised representative

Ms. Vipin Jain,

E-12/29, Harsha Bhawan,

Connaught Circus,

New Delhi-110001.                                 ………….Revisionist

 

Versus

 

Shri Rishi Sharma,

S/o. Shri Vikram Sharma,

R/o. House No.1347, Setor-17 C,

Distt. Gurgaon, Haryana.                       ………….Respondent

 

CORAM

 

O.P. Gupta, Member (Judicial)

 

1.     Whether reporters of local newspaper be allowed to see the judgment? Yes

2.      To be referred to the reporter or not? Yes        

 

O.P. Gupta, Member(Judicial)

JUDGMENT

          The facts as pleaded in the complaint were that complainant registered with OP for flat in M2K County Heights Project as Dharuhera in 2007. In complaint case no.467/11 giving rise to execution no.62/14 which is under challenge in revision no.40/14, the complainants were provisionally allotted apartment no.B-078 for Rs.25,58,375/-, complainant deposited Rs.10,70,714/-. The OP failed to give flat even after repeated requests, it failed to cancel the flat and refund the deposit. The complainant found that there was no construction at site.

          OP contested  the case by submitting that as per flat buyer agreement the construction was to be completed within 36 months with grace period of 6 months and for delay there was penalty clause. Complainant accepted construction linked plan in which payment was to be made as per stages of construction. Complainant did not pay further installments after construction of basement despite repeated demands. B-Tower was almost complete and internal finishing work were under progress.

          The district forum found that there was no construction and complainant wanted cancellation of booking and refund. The agreement provided for 15% deduction of total price and balance to be returned after complainant demanded refund in 2009 itself without waiting for stipulated time for consideration. The complainant waited for 2 months and filed the complaint in 2011. The OP committed deficiency by not refund the deposit after deducting 15% of basic sale price from the amount deposited by the complainant and refund the balance with interest  at the rate of 9% per annum from date of letter written by complainant demanding refund in 2009 till the date of refund, Rs.50,000/- as compensation including litigation charges.

          In execution the petitioner / JD gave one cheque no.010318 dated 14.5.14 for Rs.10,70,714/- towards compliance of the order dated 15.5.14. At the time of passing said order none was present for the Decree Holder, cheque was directed to be given to the Decree Holder as and when they appeared against signature. The case was adjourned to 5.6.14. Later on the same date Shri Ashwini Kumar Sharma, counsel for Decree Holder appeared and collected the cheque against signature.

          On 5.6.14 it was observed that calculation chart has already been filed by JD. Copy thereof was supplied to DH. Total amount payable in execution no.62/14 was Rs.10,70,714/-. The bailable warrant / attachment were directed to be issued after 7 days from said date. JD was given liberty to comply with execution within 7 days failing which bailable warrants / attachments was to be issued and the case was listed for 12.6.14.

          It is the aforesaid order dated 5.6.14 which is in question in the present revision. It fails to take notice of the fact that JD had already deposited 2 cheques for the amount noted in order dated 15.5.14. The counsel for Decree Holder had already received the said cheques on 15.5.14 itself. Thus nothing remained due and it is not clear as to why bailable warrant / attachment was issued.

          It is also necessary to mention that bailable warrant/ attachment cannot be issued simultaneously. Bailable warrants are for ensuring personal appearance of a person whereas attachment warrants are for realization of the amount.

          It is equally necessary to mention that order giving liberty to the JD to comply execution within 7 days which would expire on 12.6.14. Bailable warrant/ attachment were to be issued on failure to comply with the order meaning thereby that same could be issued on 12.6.14. In these circumstances listing the case for 12.6.14 for compliance is meaningless.

          The revision is accepted, impugned order is set aside and matter is remanded back to the district forum for proceeding further in accordance with law. Parties are directed to appear before district forum on 10.11.16/ the date already fixed in execution.

          Copy of this order be sent to both the parties free of cost. One copy of the order be sent to district forum for information.

          File be consigned to Record Room.

 

(O.P.GUPTA)

MEMBER (JUDICIAL)