ORDER

M.B. SHAH, J., PRESIDENT

Heard the learned counsel for the parties.

Being aggrieved and dissatisfied by the judgement and order dated 18.4.2006 passed in Complaint No.80 of 2001 by the State Consumer Disputes Redressal Commission Gujarat State, at Ahmedabad, the complainant has preferred this appeal.

Undisputedly, by an Agreement dated 31.12.1996 the complainant has agreed to purchase a flat for a consideration of Rs.9,10,000/-. It was also agreed that possession of the said flat was to be delivered to the complainant on or before 31.12.1998.

It is the say of the complainant that the complainant paid a sum of Rs.30,000/- on 6.9.1996, Rs.7,20,000/- on 28.2.1997 and Rs.1,60,000/- on 1.1.1997 i.e. in all Rs.9,10,000/- to the respondents. There is no dispute between the parties with regard to payment of the above stated amounts.

She further contends that in addition to the aforesaid amounts, she had paid an amount of Rs. 3,60,000/- in cash on 26.12.1996 to the Opp. Parties-Builders. In support of this contention, reliance is placed upon the Pass Book of Bharat Overseas Bank which shows that the said amount of Rs.3,60,000/- was withdrawn by the complainant on the said date.

She has also relied on the cheque given to Ms. Bhadresh K. Shah for 1501 Pounds encashable at National Westminister Bank, London. Similarly, another cheque was issued for 1501 Pounds in favour of Jayshree B. Shah and a third cheque was issued in favour of Kalpana S. Shah on the same Bank. All the cheques were issued on 29.12.1996. The total comes to 4603 Pounds Sterling. On that basis, the Complainant has calculated the equivalent value in Indian Ruppee at Rs.2,90,000/-. The Complainant has pointed out that the cheques were issued at the instance of one of the partners of the builder, namely, Mr. Badresh K. Shah. Mrs. Jayshree B. Shah is the wife of Badresh K. Shah. The said cheques were credited in favour of respective persons, who are the relatives of the partners of builders.

Thereafter, as the possession of the flat was not delivered, as agreed, the complainant was required to approach the State Commission by filing Complaint on 4.5.2001 with a prayer to direct the Builders to complete the entire work of the flat as per the specification shown in the advertisement and to pay a sum of Rs.19,99,950/- with interest @ 13.5% per annum from the date of application till realization. The amount of Rs.19,99,950/- was calculated on various counts, as mentioned in paragraph 23 of the complaint.

After considering the facts, the complaint was partly allowed by the State Commission and the Builders were directed to carry out the remaining work as per the brochure, within one month’s time after mutually adjusting the dates, failing which builders were directed to pay a sum of Rs.1,27,650/- with costs of Rs.2500/-.

Findings:

Learned counsel appearing on behalf of the appellant submitted that the State Commission materially erred in not considering the payment of the extra amount by the complainant to the Builders, by merely observing that as there was a denial by the builders with regard to the receipt of the three cheques on the names of the relatives of Opp. Party(s) in pound sterling because such transactions on the face of it may raise ugly question unrelated to this complaint and will not contribute to solve or help to solve the complaint.

In our view, the approach of the State Commission is totally unjustified because there is no denial on the part of Mr. Badresh K. Shah with regard to the said cheques. Further, the complainant has issued the three cheques on the same day i.e. 29.12.1996 in favour of relatives of partners of the builders. There is no other reason mentioned by the Builder to contend that the complainant was required to issue the cheques in the name of said three ladies in London who are not related to complainant.

Further, in the evidence, which was recorded by the State Commission, Mr.Badresh K. Shah has admitted that Mrs. Jayshree B. Shah is his wife and that he does not remember whether the cheque was drawn on the Nat West Bank. He has not denied the issuance of the said cheques or receipt of the said amount.

Hence, the receipt of the said amount cannot be disputed as the same was paid by cheques and the cheques were also encashed by the relatives of one of the partners. That amount comes to Rs.2,90,000/-. Considering this aspect, respondents are required to refund the amount of Rs.2,90,000/- .

Secondly, it is contended by the complainant that she paid Rs.3,60,000/- in cash on 26.12.1996 to the builders as demanded by them. For this purpose, she has relied upon the Bank entry whereby she has withdrawn Rs.3,60,000/- in cash on 26.12.1996. In our view, it would be difficult for us to accept the said contention as there is no other evidence in support of the say of the complainant that she was compelled to pay the said amount in cash to the builders. We cannot presume that the said amount was paid to the builders.

Further, apart from the aforesaid payments, it is apparent that the flat remained incomplete for years together and it was finally completed after the direction issued by this Commission. As against this, learned counsel for the Opp. Party pointed out that even before the State Commission, Builders were prepared to complete the construction work as per requirement of the brochure but the complainant was not permitting them to complete the said work and she was regularly visiting the UK.

Learned counsel Mr. Mehta also submitted that the complainant was required to pay maintenance charges as well as car parking and development charges which according to Mr. Mehta comes to Rs. 2 lacs which she has not paid uptil now despite taking possession. Therefore, the builders were not at fault in completing the construction work.

It appears that possession of the flat was given to the complainant by the intervention of Police help on 11.11.2000. No doubt, it was an incompleted flat. As the dispute persisted, as per direction given by the State Commission, registered documents were executed in favour of the complainant with regard to the said flat. It is to be stated that on the basis of our direction Punchnama with regard to the construction of the flat was prepared. As per the Punchnama the flat was fully constructed as per the brochure. No doubt, there is an endorsement made in the Punchnama by the complainant that it was not to her satisfaction.

Further, the complainant has pointed out that as per the payment schedule which has been given by the Opp. Parties, covered car parking charges was for a sum of Rs.50,000/- and for life time maintenance charges and development charges were required to be paid i.e. Rs.40,000/- and Rs.25,000/- respectively. The total comes to Rs.1,15,000/-.

Considering the aforesaid aspect, in our view, it would be just and proper to direct the respondents to refund the amount of Rs.2,90,000/- by deducting Rs.1,15,000/- which comes to Rs.1,75,000/- and also pay interest @ 10% p.a. on Rs.9,10,000/- for 1 year and 10 months’ delay in delivering the possession, which comes to approximately Rs.1,66,833/- and cost of litigation i.e. in all Rs.50,000/-. Respondents, in all, shall pay a sum of Rs.3,91,833/- ( Rs.1,75,000 + Rs.166,833/- + Rs.50,000/-) within a period of 6 weeks from today. The Appeal stands disposed of accordingly.

Sd/-

……………………………………J.

(M.B. SHAH)

PRESIDENT

Sd/-

………………………………………

(RAJYALAKSHMI RAO)

MEMBER

SG/17