AVI Vs. PUSHPA BUILDERS

JUDGEMENT

(1.) THE case of the complainant in the present complaint, in nutshell, is that lured by the advertisements and representations of O.P., the complainant attended a Property Mela organized by the O.P. on 25.1.1987 and booked one shop on the ground floor of Commercial Complex known as Pushpa Auto Complex proposed to be constructed on Plot No. 159 and 160, Rohtak Road, New Delhi. The price of the said shop having an area of 163.28 sq. feet was fixed at Rs. 1,69,000/ - which was to be paid in instalments as and when demanded by the O.P. The complainants as per agreement deposited the various instalments on time and paid a total amount of Rs. 1,54,100/ to the O.P. against receipts. It was represented by the O.P. that the shops would be constructed on Plot No. 159 and 160, Rohtak Road, New Delhi, whereas it was reliably learnt later on that the O.P. did not have the land allotted/transferred in its name at the time of issuance of the advertisements and even the plans were not sanctioned from the Appropriate Authorities before soliciting purchasers for the shops/workshops/show -rooms. Furthermore, the said plots of land could be used solely for the construction of one single workshop on each plot i.e., Plot No. 159 and Plot No. 160, Rohtak Road, New Delhi whereas the same were amalgamated to raise common structure. As such it was falsely and with mala fide intention represented by the O.P. that the O.P. had the authority to erect or build offices/shops/showrooms, etc. on the said land and to transfer the same to any other person, whereas the said land/portion could not be transferred to a third party without the prior consent of the lessor i.e., the Delhi Development Authority, as per the terms of the lease agreement. Thus the grievance of the complaints is, that it was in May, 1995 when a civil writ petition filed by the O.P. being C.W. No. 3447/93 was dismissed by the Hon ble High Court of Delhi that the complainants came to know that the O.P. had carried out illegal and unauthorized construction in the complex in question and the same was liable to be demolished. The complainants on the revelation of the said fact sought refund of the amount paid by them towards the price of the shop and on failure of the O.P. to refund the said amount, issued legal notice dated 16.5.1995 and thereafter filed the present complaint before this Commission seeking refund of the amount deposited with the O.P. together with interest @ 18% p.a. compounded yearly totalling a sum of Rs. 9,44,088/ - as on 28.2.1996 together with Rs. 4,55,912/ - being the difference in current market value of the shop booked by the complainant as well as Rs. 4,80,000/ - as damages for loss of earning and Rs. 1,00,000/ - as compensation for mental torture, harassment and agony suffered by the complainant together with cost of the proceedings.

(2.) THE O.P. in its reply/written version raised a number of preliminary objections; that the complaint as framed and filed by the complainant is not maintainable, as there is no privity of contract between the complainant, Shri Om Gupta and the O.P. Company, as the shop was booked by Shri Avi Gupta whereas the complaint has been filed by Shri Om Gupta only and as such the complaint is liable to be dismissed on this ground alone; that this Commission has no pecuniary jurisdiction to entertain the present complaint as the amount deposited was only Rs. 1,54,100/ - and as such should have been filed before the competent District Forum; that the complaint is barred by limitation as the possession of units booked by the complainant was handed over to the complainant in January, 1991 and as such the present complaint, filed on 26.3.1996 has been preferred beyond the period of limitation; that the shop having been purchased for commercial purposes, the complainant is not a consumer under the Consumer Protection Act, 1986; that the dispute raised by the complainant is a civil dispute and as such cannot be entertained by this Commission under the Act. On merits however, the defence of the O.P. is that the complainant and other allottees had been allotted units in the Pushpa Auto Complex on licence basis as per requirement so the lease agreement executed with the DDA. Furthermore, the construction has been taken up in accordance with the sanctioned plan and has been completed as per schedule in June, 1990 whereafter the possession has been handed over to the complainant in January, 1991 complete with all amenities. It is further stated by the O.P. in its reply/written version that it is the complainant who is in violation of the terms of the agreement has not paid the full dues, and even at the time of possession owed a sum of Rs. 16,900/ - to the O.P. towards the final bill. It also stated that the complainant was informed vide letter dated 22.12.1997 that the licence agreement of the unit allotted to him is ready for signing and that he should contact the concerned manager for the said purpose however, the complainant failed to do the needful, it is further denied by the O.P. in its reply/written version, that any fraud had been played upon the complainant. As such, it is prayed that the complaint, filed by the complainant, being false and frivolous is liable to be dismissed with exemplary costs in favour of the O.P.

(3.) THE complainant has filed a rejoinder to the reply/written version filed on behalf of the O.P., denying the contents of the same and reiterating those of the complaint. Evidence has been led on behalf of both the parties by filing affidavits. On behalf of the complainant, affidavit of Shri Om Gupta has been filed whereas the affidavit of Mr. H.L. Soin, Director of the O.P. has been filed on behalf of O.P.