A. P. Sahi, President Member
IA/16708/2023
1. Heard learned counsel for the appellants.
2. There is a reported delay of 31 days in filing of the appeal.
3. Given the explanation and the facts stated in the delay condonation application, the cause shown is sufficient and the delay is condoned. The appeal is treated to have been filed within time.
Appeal
4. On merits of the appeal learned counsel advanced his submissions contending that this is a clear cut case where the flat buyer had defaulted in making the payments as agreed upon and therefore this default itself is sufficient to dismiss the complaint. Even otherwise the complaint had been filed incorrectly before the District Forum and it was at the delayed stage that the complaint was presented before the State Commission.
5. Learned counsel submits that the complaint could not have proceeded as if for recovery of money, and hence the complainant ought to have been relegated to the Civil Court for redressal of any grievances as prayed for.
6. In short the fact of having received a sum of Rs.4,72,685/- as an advance as consideration for the flat in question is not disputed. The complainant filed the complaint alleging that nothing was available so as to believe the offer made by the opposite party, as no construction at all had either commenced or was raised, and it is in these circumstances that a legal notice was given on 22.04.2015, calling upon the opposite party to refund the entire amount, which had been received.
7. The complainant moved before the District Forum, Hyderabad and filed CC/392/2013. But vide order dated 06.03.2017, the complaint was returned to be filed before the State Commission for want of pecuniary jurisdiction. Accordingly, the complaint was registered as CC/118/2017 before the State Commission. It is thus evident that there was no delay in filing of the complaint or approaching the appropriate forum. The State Commission therefore has rightly come to the conclusion that the complaint was well within time and not barred by limitation.
8. The second issue which has been raised by the learned counsel for the appellants is that there was a default in payment by the complainant according to the schedule as was agreed upon.
9. The fact remains that according to the admitted position of the appellants, the entire amount had to be paid in 24 instalments at the rate of Rs.78,781/- per mensem. This very fact of 24 instalments therefore clearly demonstrates that the project was to be completed within 24 months. The non-acceptance of the terms of agreement was debated upon between the parties. Nonetheless, the fact of the said schedule of payment is admitted by the appellants.
10. The State Commission after having noticed the facts, came to the conclusion that there was a clear deficiency in service, in as much as the allegation made by the complainant, that the construction had not even commenced, could not be rebutted by the appellants before the State Commission. This fact was also stated in the legal notice dated 22.04.2015 given by the complainant and again in the additional evidence affidavit dated 19.06.2019 of the complainant in paragraph 4, a copy whereof has been filed as an annexure (at page 50) along with this appeal.
11. The complainant had categorically stated that the complainant was ready to make the payments as per the progress of construction and would apply for a bank loan but it was not possible as the opposite party/ builder had failed to start the construction even at the basement level. The additional evidence by way of an affidavit does not appear to have been rebutted or countered nor is there anything before this Commission to disbelieve the said allegations made in the additional evidence affidavit of the complainant. It is thus established that there was a clear deficiency in service on the part of the appellants in not even proceeding with the construction and as such there was no question of handing over of possession on completion of the construction within 24 months. As a matter of fact, learned counsel during the course of arguments submitted that the land on which the construction had to commence had entered into litigation. Be that as it may, no evidence is available to deny the fact, that the construction did not commence as promised, and therefore the complainant was fully justified in issuing a legal notice and thereafter instituting a complaint for refund of the amount on the ground of deficiency of services as well as unfair trade practice. The State Commission therefore had arrived at a correct conclusion and the impugned order does not require any interference. There is no additional material or evidence in order to entertain the grounds raised in this appeal and therefore I do not find it fit to entertain this appeal at the admission stage itself. It is accordingly rejected.
