Delhi

StateCommission

FA/1043/2013

GROWTH TECHNO PROJECTS LTD. - Complainant(s)

Versus

VINOD KUMAR & ANR. - Opp.Party(s)

19 Dec 2016

ORDER

IN THE STATE COMMISSION: DELHI

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

 

Date of Decision: 19.12.2016

 

First Appeal – 1043/2013

 

(Arising out of order dated 12.10.2012 passed by the Consumer Disputes Redressal Forum-II, New Delhi in complaint case No. 828/2006)

 

        In the Matter of:

 

                M/s Growth Techno Project Ltd.

          Through its Director and Authorized person

          Mr. Ashok Parwal

          7, Doctors’ Lane, Gole Market

          New Delhi-110011

               

……Appellant Versus     1. Sh. Vinod Kumar S/o Sh. Rattan Lal   2. Mrs. Alka Vinod Gupta W/o Sh. Vinod Kumar Gupta   Both through their alleged attorney Sh. Rattan Lal S/o Sh. Pyare Lal R/o 68, Jain Mandir wali Gali, Chota Bazar, Shahdara, Delhi-110032                   …….Respondent

CORAM

 

Justice Veena Birbal, President

 

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

2.   To be referred to the reporter or not?

 

Justice Veena Birbal, President

1.             This is an appeal u/s 15 of the Consumer Protection Act (in short ‘the Act’) wherein prayer is made for setting aside order dated 12.10.2012 passed by the Consumer Disputes Redressal Forum-II, Qutub Institutional Area, New Delhi (in short ‘the District Forum’)  in Complaint Case No. 828/06.

2.             Briefly the facts relevant for the disposal of present appeal are that the respondents herein i.e. the complainants before the Ld. District Forum had filed a complaint u/s 12 of the Act alleging therein that the appellant/OP had a joint venture project with GDA and GTPL for developing a Sentosa City. The respondents/complainants had applied for the allotment of flat in the said city and had paid Rs. 75,000/- vide receipt dated 23.01.1997. A flat No.6 at 21^st floor, tower 3 was allotted to them and assurance was given that the physical possession would be given very soon. It was further communicated to the appellants/complainants that in case of any adversity, the registration amount with interest and compensation would be refunded to them. It was alleged that since the development of the Santosa City was never informed to the respondents/complainants, sensing a mischief the respondents/complainants gave a notice to appellant/OP on 30.05.2002 whereupon the appellant/OP had returned the amount of Rs. 75,000/- vide cheque dated 05.07.2002. It was alleged that the appellant/OP did not give interest on the aforesaid amount. It was alleged that the appellant/OP did not give the information about the development of the project and had kept the amount of Rs. 75,000/- for a long time as such a complaint was filed seeking directions to the appellant/OP to pay interest @ 18% from 30.12.1996 to July, 2002 on the aforesaid amount of Rs. 75,000/- and to pay compensation of Rs. 75,000/-.

3.             The complaint was registered by the appellant/OP by filing written statement wherein it was alleged that the Ghaziabad Development Authority vide letter dated 01.02.1997 had cancelled the agreement of transfer of land and the said fact was beyond the control of appellant/OP. It was alleged that soon after termination of principal agreement of transfer of land on 01.02.1997, the appellant/OP had offered to make refund of the amount deposited by the buyers. Many of the buyers had responded but the respondent/complainant did not respond. It was alleged that immediately on receipt of notice dated 30.05.2002 of respondent/complainant, the appellant/OP had refunded the deposited amount. It is contended that in the facts and circumstances of the case the appellant/OP was not liable to pay any interest or compensation as was prayed by respondent/complainant.

4.             Both the parties had filed evidence by way of affidavits.

5.             After hearing both the parties, the Ld. District Forum held that there was gross deficiency on the part of appellant/OP in not developing the project and as such directed the appellant/OP to pay interest on the refunded amount of 75,000/- @ 15% to the respondents/complainants for the period from 30.12.1996 to till 2002 when the said amount was returned to respondent/complainant. Besides the aforesaid amount, Rs. 50,000/- was awarded as compensation which was inclusive of legal expenses.

6.             Aggrieved with the aforesaid order, the present appeal is filed.

7.             Ld. counsel for the appellant has contended that during the pendency of the proceedings before the Ld. District Forum the respondent/complainant had moved an amendment application which was allowed vide order dated 16.04.2004. It is contended that the Ld. District Forum had no jurisdiction to allow the amendment as such the impugned order is a nullity. It is contended that there are deficiencies in the special power of attorney executed by the respondents/complainants in favour of Sh. Ratan Lal as such said attorney had no authority to sign the complaint which was filed in the name of respondents/complainants. It is contended that in the present case appellant/OP has suffered huge loss due to the termination of contract by the GDA as such the respondents/complainants were not entitled for interest and compensation as has been awarded by the Ld. District Forum.

8.             On the other hand, Ld. counsel for the respondent/complainant has contended that the appellant/complainant has deliberately not mentioned the reason of the cancellation of contract between the GDA and the appellant/OP. It is contended that though the agreement was cancelled on 01.12.1997 by the GDA despite that appellant/OP had retained the amount of Rs. 75,000/- deposited by the respondent/complainant for about 5 years. It is contended that in fairness appellant/OP ought to have returned the deposited amount immediately on cancellation of the aforesaid agreement. It is contended that contentions raised by the appellant/OP about allowing amendment application by the Ld. District Forum and alleged deficiencies in the SPA have no force and the appeal is liable to be dismissed.

9.             We have heard, counsel for the parties and perused the material on record.

10.            The appellant/OP is not right in contending that the Ld. District Forum has no power to allow the amendment of the complaint. The contention raised is not legally sustainable. In any event, the amendment application was allowed on 16.04.2004 and if appellant/OP any objection it could have challenged the said order instead of going ahead with the disposal of the complaint on merits. The contention raised has no force and is rejected.

11.            The respondents/complainants are husband and wife. The complaint was filed through Sh. Ratan Lal, father of respondent-1 and father in law of respondent-2 as their attorney. The SPA exhibit CW1/A has been seen. Reading the same it cannot be said that the complaint was not filed by competent person as has been alleged. It has been clearly stated in the SPA that the executant of the SPA has agreed to ratify and confirm all the acts done by the SPA in the aforesaid case on their behalf. In these circumstances, the contention raised has no force and is rejected.

12.            As regards the grant of interest and compensation, we find that the cancellation of agreement of transfer of land between GDA and appellant/OP had come to end because the appellant/OP did not make the requisite payments. The agreement was cancelled by the GDA on 01.02.1997 as per letter placed on record by appellant/OP. The booking was done by respondent/complainant on 31.12.1996 whereas the amount of Rs. 75,000/- was refunded to respondent/complainant in July, 2002. Though the appellant/OP has contended that it had offered to refund the amount but respondent/complainant did not come forward, however, the same is denied by respondents/complainants. Nothing has been placed on record by the appellant/OP as to what steps were taken by it to refund the amount after cancellation of principal agreement of transfer of land on 01.02.1997. It is only on the sending of legal notice by respondents/complainants, the amount was refunded by appellant/OP. Despite knowing that the agreement had been cancelled and the appellant/OP is not in a position to go ahead with the project, the appellant/OP had retained the amount of Rs. 75,000/- without any reason. Considering the rate of interest which the appellant/OP was to charge from respondents/complainants in case of delayed payment by them had the project continued and the other terms and conditions of Sentosa City, the Ld. District Forum has awarded interest @ 15% to the respondent/complainant for the period from 30.12.1996 till 2002 when the amount was returned to them. The interest has been awarded after considering the facts and circumstances of the case. No case for interference is made out as regards the rate of interest granted by Ld. District Forum. As regards compensation, we find that since adequate interest is awarded to respondents/complainant, we reduce the compensation from Rs. 50,000/- to Rs. 10,000/-. The appeal stands partly allowed. The impugned order stands modified accordingly.

                A copy of the order be sent to parties as well as to Ld. District Forum for necessary information.

                File be consigned to record room.    

(Justice Veena Birbal)

President