Puja Constructions Limited vs Baljit Kaur Ranger

DR. S. M. KANTIKAR, J.

This revision petition has been filed under Section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated 27.09.2016 passed in Appeal No. 1051 of 2016 by Rajasthan State Consumer Disputes Redressal Commission, Jaipur (in short, 'State Commission') whereby the State Commission dismissed the appeal and upheld the order of the District Consumer Disputes Redressal Forum-II, Jaipur.

The brief facts are that the complainant, Baljit Kaur Rangar booked a residential flat in the year 2006 in the project of Pooja Constructions Ltd./OP at Jaipur. The possession was to be delivered by OP within stipulated time of one year. However, the project got delayed and the petitioner did not start the construction work for a long time. Even the excavation work at the site was not performed. The complainant had paid a total sum of Rs.13,38,000/- to the OP; however, the possession of flat was not handed over to the complainant. The OP kept on demanding money irrespective of no construction work at the site. The complainant through email communication dated 8.4.2011 requested the OP to cancel the booking and refund the money paid by him. The OP neither handed over the possession of the flat nor refunded the money to the complainant. Hence, the complainant filed a complaint before the District Forum-II, Jaipur.

The OP resisted the complaint and raised preliminary objection with regard to the limitation. The OP stated that as per the Arbitration clause in the agreement, the arbitrator was appointed by the OP, but the complainant did not turn up for arbitration. It was further stated that the complainant did not deposit the remaining amount, outstanding on 1.9.2007 i.e. 70% of the price of the flat; therefore, there was no deficiency on their part.

On the basis of pleadings and evidence, the District Forum allowed the complaint and directed the OP to refund Rs.13,38,000/- within two months from the date of the order to the complainant with interest @ 9% per annum. Besides this, OP was directed to pay Rs.15,000/- towards compensation and Rs.20,000/- towards cost of litigation.

Being aggrieved, the OP filed first appeal before the State Commission, which was dismissed. Being aggrieved, the OP filed the instant revision petition.

We have heard the learned counsel for both the parties. Learned counsel for the petitioner submitted that the complainant did not comply with the terms and conditions agreed between the parties, because he failed to deposit 90% of the entire amount of the flat within 25 months from the date of booking. He had deposited only Rs.13,38,000/- with the petitioner. He further submitted that possession of the flat was to be handed over to the buyer only after full and final payment. Moreover, the petitioner/OP was always ready to return the amount, but the complainant failed to return the copy of the agreement executed between them, and hence, the amount was not refunded to the complainant. The counsel further submitted that, as per the arbitration clause in the agreement, the matter had been referred to the arbitrator. Therefore, the complainant could not agitate his complaint before the District Forum. The counsel further stated that rate of interest awarded by the District Forum @9% per annum was on higher side. The counsel prayed for dismissal of complaint.

Learned counsel for the complainant submitted that a Larger Bench of this Commission in the matter Aftab Singh v. Emaar MGF Land Ltd. & Anr., III (2017) CPJ 270 (NC), had held that proceedings before the consumer fora are valid, even when there is an arbitration clause. This decision was upheld by Hon'ble Supreme Court in civil appeal No. 37997 of 2017 on 13.02.2018. The counsel further submitted that he has filed I.A. No. 6952 of 2018 for enhancement of interest on the refund amount. As per clause (6) of the terms and conditions of the agreement, the complainant was entitled for interest @ 12% per annum but due to inadvertence, while filing the complaint before the District Forum, she had prayed for 9% interest on principal amount.

We have given our thoughtful consideration to the arguments from both the parties. It is an admitted fact that the complainant booked a flat in the year 2006 with the OP, but the OP failed to give possession for more than five years. She got cancelled her booking by sending letter dated 6.4.2011 and requested the OP to return her amount deposited. The OPs agreed to return the amount, but the amount was not refunded on one pretext or other. In our view, the OP should have immediately refunded the amount to the complainant. It is transpired that the OP was just keeping the cheques prepared with him, but did not make the refund of admitted amount. Thus, it clearly proves the unethical intention and attitude of the Petitioner/OP.

The I.A. No. 6952 of 2017 filed by the complainant at revisoinal stage cannot be considered because the complainant never made any such prayer in the complaint filed before the District Forum. Moreover, the complainant did not file any appeal for enhancement before the State Commission. Therefore, she cannot agitate the issue of enhancement at the revisonal stage, as the complainant had accepted the order of the District Forum.

Based on the discussion above, we do not find any merit in this revision petition; hence, the same is dismissed, with no order as to costs.