JAINA PROPERTIES vs RISAL KAUR

THE opposite party has filed an appeal against the order of the District Forum dated 28.11.91 by which it directed them to refund the amount of Rs. 99,703.85 deposited by the complainant for the purchase of a flat, alongwith interest @ 18% p.a. w.e.f. 11.12.85 till the date of payment.

AT the time of preliminary hearing a contention was raised before us that the building has already been completed by the appellant. The complainant was directed to place on the record the certificate of completion of the building vide order dated 15.1.92 and the case was adjourned to 4.2.92. On 4.2.92 Mr. Mehta, learned Counsel for the appellant, appeared before us and requested for 2 weeks time more to do the needful. His request was acceded to and the case was adjourned to 21.2.92. On 21.2.92 again a request was made by Mr. S.K. Paul, Agent for adjournment for the same purpose. The appeal was adjourned to 28.2.92, Mr. S.K. Paul Agent, appeared before us and requested for one more adjournment. AT his request the case was adjourned to 12.3.92. It was specifically mentioned in the order that in case the Advocate was unable to appear, one of the Director of the company should produce the certificate before us. On 12.3.92 Mr. Kaushal Mehra, Agent of the appellant appeared before us, but he did not produce the certificate. On that dale neither Mr. Mehta nor the Director of the Company appeared before us. In the circumstances we dismissed the appeal for non-prosecution.

An application has now been filed by Mr. Mehta for setting aside the order of dismissal for non-prosecution and to decide the case on merits.

WE have heard the learned Counsel for the parties. It was stated that the building had been completed by the builder They were in a position to deliver possession of the space to the respondent. Even if the building had been completed its possession could not be delivered to the complainant unless a completion certificate had been obtained by them. That is why we asked them to produce the completion certificate. The amount had been deposited long back by the complainant but the appellant could not deliver possession of the space booked, to him. Taking into consideration the aforesaid circumstances, the District Forum had allowed the prayer of the complainant for refund of the amount deposited by him with interest. The appellant failed to produce the certificate though various adjournments were granted to them. They have been harassing the respondent on one pretext of the other. Consequently we are not inclined to restore the appeal. WE are, also of the opinion that in the facts and circumstances of the case, there is no merit in the appeal. For the aforesaid reasons we dismiss the application for restoration. Appeal dismissed.