RAGINI RAMCHANDRAN Vs. PUSHPA BUILDERS LTD

JUDGEMENT

(1.) This order will dispose of Miscellaneous Application dated 30th April, 1998. In order to appreciate the points raised, it is necessary to set- out the background briefly as follows.

(2.) Smt. Ragini Ramchandran and her husband booked a flat in Pushpa Akash Apartment, which was undertaken to be built by M/s. Pushpa Builders Limited. The complainants spaid certain amounts from time to time. The builder, however, failed to complete the construction and deliver possession of the flat booked by the complainants. The complainants, therefore, filed a complaint registered as C-615/ 93. The opposite party M/s. Pushpa Builders Limited contested the claim of the complainants. By order dated 14.2.1997, the complaint was allowed and the opposite party directed to refund Rs.3,09,228/- besides 18% interest thereon from the date of deposit till date of refund and Rs.3,000/-as costs. No appeal appears to have been filed against the order of the State Commission which became final between the parties. The opposite parties failed to pay the amount and the complainants were obliged to file an application under Sections 25/27of the Consumer Protection Act registered as Ex.115/97 on 9.4.1997. Upon notice in the said application, one Mr. Ram Niwas stated to be Law Officer of the respondent Company appeared. Talks for settling the mode of payment took place from time to time. On 11.9.1997, Mr. Ram Niwas stated that the respondent was willing to make the payment in the same term in which the National Commission allowed the respondent (Pushpa Builders Limited) in Pushpa Builders Flat Buyers Association V/s. Pushpa Builders Limited, Original Petition Nos.39-70/96 dated 3.2.1997. According to the directions in the aforesaid matter, before the National Commission, the respondent Company was granted stay on the condition that 50% of the amount payable was paid within three months and the remaining amount in accordance with directions to be passed later on. On 19.9.1997, an agreement was reached between the parties. Statement of Mr. Ram Niwas, Law Officer of the respondent Company on the one hand and Mr. P. G. Ramchandran, on behalf of the complainant were recorded and in terms of the said statements, order was passed on 19.9.1997 to the following effect: 50% of the total amount worked-out in terms of the order of the State Commission dated 14.2.1997 in C-615/93 was to be paid on or before 19.12.1997 and the balance 50% together with the interest @ 18% per annum was to be paid in four equated instalments on 21.1.1998, 20.2.1998, 20.3.1998 and 20.4.1998. No payment in terms of the above agreement was, however, made by the respondents. The case was adjourned from time to time and various alternatives repayment were discussed between the parties. On 9.3.1998, Mr. Gurbax Singh, Advocate alongwith Mr. H. L. Soin, Director of the respondent Company made a proposal in writing as to the mode by which the amount was to be repaid. During the pendency of the proposal, certain payments were made from time to time which were duly noted in the orders appearing in the order sheet. Ultimately by order dated 16th April, 1998 and with the tacit consent of the complainant, detailed order regarding the manner of repayment was passed based on one of the two proposals for repayment submitted in writing by the respondent Company. Pending implementation of the order, the present application has been made by the respondent Company through Mr. Harish Uppal, Advocate and the prayer made seeks the following reliefs. (i) That the rate of interest which is 18% as per the order passed in the complaint be revised to 12% instead, (ii) No compounded interest be made payable. According to the respondents, the order dated 14.2.1997 was apparently based on order of the National Commission in Original Petition No.60/94 which according to the learned Counsel is per incuriam. It has further been contended that the FORA failed to take notice of the law laid-down by the Supreme Court in Bareilly Development Authority and Another V/s. Ajay Pal Singh, 1989 1 JT 368, in which it was laid-down that the brochure and other terms and conditions offered by the dealer became terms and condition of the contract between the flat buyer and the dealer. According to the respondent, para-5 of the brochure, lays down that in case the building does not get completed or flat to be acquired by the buyer is not constructed, the amount received by the promoter shall be refunded to the buyer with simple interest @ 12% per annum upon his surrendering the original money receipt/other documents, if any, and no other claim shall be made by the buyer or entertained by the promoter. The contention therefore is that the award of interest exceeding 12% including award of interest upon interest which is in nature of a compound interest was contrary to the law laid-down by the Supreme Court and orders to the contrary whether passed by the National Commission or by this Commission deserved to be revised accordingly; so as to bring-down the rate of interest allowed in terms of the binding agreement between the parties.

(3.) In the reply filed by the complainants, it was highlighted that the opposite party failed to comply with the final order passed in the complaint. It failed again to make the payment in terms of the compromise arrived at with the complainants in execution proceedings. The opposite party failed on third time when the order passed on the proposal of the opposite party itself is being challenged through the present miscellaneous application. It was stated that the order being passed on compromise no challenge thereto could be made. The FORA under the Consumer Protection Act, it was submitted, did not have the power to reviewing its own order and that the present application was frivolous and initiated to delay the payment of the amount in terms of the order of the Commission.