M/s Buildmore India Ltd vs Pradeep Kumar Gupta

R.K. Agrawal, President Member

The present Miscellaneous Application No. 200 of 2016 has been filed by the Respondent/Complainant praying for issuance of the Non-Bailable Warrants against the Petitioners, Shri Prabjit Singh and  Smt. Man Mohan to recover the principle amount along with interest.

Succinctly put, the material facts relevant for disposal of the Miscellaneous Application No. 200 of 2016 are that the Complainant/Applicant herein, booked a two-bedroom flat with the Petitioner i.e. M/s. Buildmore India Ltd. (hereinafter to be referred to as “the Builder”) in a Project christened as "Classic Homes' Loni, Ghaziabad. He deposited total sum of ₹2,44,996/-- with the Builder but the possession was not handed over to him. The Complainant sent a letter dated 18.01.2010 to the Builder followed by a Legal Notice dated 18.06.2010, seeking possession of the Flat or in the alternative, refund of the amount paid by him along with 24% per annum interest.  Consequently, he approached the concerned District Forum by way of a complaint, seeking completion and possession of the flat along with penalty charges as per the agreement.

On appraisal of the facts of the case, the District Forum, vide its order dated 12.11.2013 directed the Builder to refund the amount of ₹2,44,996/- to the Complainant along with interest @ 9% per annum w.e.f. 18.09.1999 when the last installment was paid. The Builder was also directed to pay a sum of ₹5 lacs as compensation to the Complainant.

Challenging the legality of the order passed by the District Forum, the Builder preferred First Appeal 299 of 2015 before the State Commission on the ground that the Builder sent letters to the Complainant in the years 2005 and 2007 for taking the physical possession of the Flat. However, the Complainant did not turn up for taking the same. Hence, there was no deficiency in service on their part and the complaint deserves to the dismissed.

Having considered the material available on record and on perusal of the evidence adduced by the parties, the State Commission, vide its Order dated 19.08.2015 dismissed the Appeal filed by the Builder affirming the order passed by the District Forum. It was observed as under:-

“    Perusal of the Record shows that the appellant has placed on record photocopy of the letter dated 18.06.2010 calling upon the Complainant to pay escalate charges, maintenance charges and electricity charges.  The letter is highly vague in n that it does not quantify the amount outstanding against the Complainant at a particular point of time.  Be that as it may, admittedly, the flat buyer's agreement dt. 28.01.1997.  Only after a span of thirteen years, the Appellant herein allegedly offered the Complainant the possession of the Flat. As per Flat Buyer’s Agreement dated 28.01.1997, the  OP/appellant herein was required to hand over the possession of the flat to the complainant on or before April 1999. In case of delay on the part of the OP/appellant herein, interest @ 15% p.a. on the amount deposited by the complainant was payable by the OP/appellant herein for the delayed period. While offering possession in the year 2010, the OP/appellant has not taken into account the penalty to be paid by him for the period of delay. The OP/appellant failed to hand over the possession of the flat to the complainant in a period of thirteen years. It is a clear case of 'unfair trade practice'. We, therefore, do not find any illegality or infirmity in the order passed by the Ld. District Forum. Appeal is dismissed being devoid of merits.”

Dis-satisfied with the aforesaid order, Builder filed Revision Petition No. 2696 of 2015 before this Commission. However, by Order dated 18.12.2015, this Commission disposed of the Revision Petition as under:-

“  Vide letter dated 18.06.2010, the petitioner company informed the complainant that the flat was ready for possession since 2005 and asked him to make balance payment towards maintenance charges, escalation charges and electricity charges, in order to enable them to hand over the flat. No information with respect to the above referred order of this Commission was given to the complainant in the aforesaid letter. Be that as it may, the position as on today is that the complainant has accepted the order of the District Forum by not challenging the same before the State Commission and the only issue involved in this petition is as to whether the compensation awarded to the complainant needs to be suitably reduced or not.

Admittedly, the complainant paid only a sum of Rs. 2,44,996/- to the petitioner company. That amount has already been directed to be refunded to him @ 9% per annum. Considering the quantum of the amount paid by the complainant to the petitioner company, the compensation awarded to him by the District Forum appears to be on the higher side. Considering all the facts & circumstances of the case, the amount of the aforesaid compensation is reduced to Rs. 2.5 lacs. A bankers cheque dated 14.12.2015 for a sum of Rs. 2.5 lacs has been brought by the learned counsel for the petitioner company which the complainant can accept if he so desires. The learned counsel for the petitioner/complainant states that the principal amount of Rs. 2,44,996/- alongwith interest calculated @ 9% per annum in terms of the order of the District Forum, the total amounting to Rs. 5,52,248/- has already been deposited with the State Commission on 10.07.2015. The State Commission is directed to release the aforesaid amount to the complainant alongwith interest which may have accrued on it. If interest upto the date of deposit was not calculated while depositing the aforesaid amount of Rs. 5,52,248/- with the State Commission, the balance amount of interest if any, shall be paid to the complainant within two weeks from today by way of a Pay Order/Demand Draft in his name.

The revision petition stands disposed of accordingly.”

Now, the Complainant has filed Miscellaneous Application No. 200 of 2016 before this Commission on the ground that while disposing of the Revision Petition, this Commission vide Order dated 18.12.2015 has directed the State Commission to release the amount of ₹5,52,248/- deposited by the Builder to the Complainant along with accrued interest.  However, the deposited amount had already been withdrawn by the Builder from the State Commission before just one day before the filing of the Revision Petition.  It is further submitted that while filing the Revision Petition on 15.10.2015, Petitioner had submitted under the Oath that FDs amounting to ₹5,52,248/- only were deposited by her in the State Commission, a copy of FDR was also annexed with the Petition. Complainant has prayed for issuance of the Non-Bailable Warrants against the Builder.

We have heard the learned Counsels for the parties at some length and perused the material as well as evidence available on record.

It is pertinent to mention here that vide Order dated 30.04.2019 passed by this Commission, Mr. Prabjit Singh who deposited the FDRs amount with the State Commission and later on withdrawn the FDRs through one Sh. Y.K. Jain, was directed to deposit FDRs amount of ₹5,52,248/-  with this Commission before leaving the Country. In compliance of the said Order, an amount of ₹5,77,248/- was deposited with this Commission on 01.05.2019 vide DD NO. 325461 dated 01.05.2019. I, therefore, direct that the amount of ₹5,77,248/- lying deposited with this Commission be released to the Complainant by the Registry along with interest accrued thereon, within a period of four weeks from the date of passing of this Order. As recorded in the Order dated 26.07.2016, a sum of ₹2.5 lakh towards compensation had already been paid to the Complainant. Balance amount, if any, payable in terms of the Order passed by the District Forum, shall be paid by Mr. Prabjit Singh within a period of four weeks from the date of receipt of a copy of this order failing which coercive action u/s 27 of the Consumer Protection Act, 1986 will be initiated against him.

The Miscellaneous Application is disposed of in above terms.