M/S. Ashoka Investment Co. vs M/S United Towers India (Pvt.) Ltd.

M/s. ASHOKA INVESTMENT CO. …APPELLANT(S)

VERSUS

M/s. UNITED TOWERS INDIA (PVT.) LTD. …RESPONDENT(S)

JUDGMENT

Vikram Nath, J.

1. This appeal by the Consumer under Section 23 of the

Consumer Protection Act, 19861 has been filed assailing the

correctness of the order dated 16.03.2015 passed by the National

Consumer Disputes Redressal Commission 2, (NCDRC), Delhi in

Original Petition No.377 of 2000 between M/s. Ashoka

Investment Company Vs. M/s. United Towers India (Pvt.) Ltd. By

the said order, the NCDRC directed the respondents to refund an

amount of Rs.4,95,000/­(four lakhs and ninety five thousand) Signature Not Verified Digitally signed by BABITA PANDEY Date: 2022.10.11 18:13:41 IST Reason:

1 In short “the 1986 Act” 2 In short “NCDRC”

pg. 1 being total sale consideration to the appellant with interest @ 9 %

per annum w.e.f. 17.01.1995 till the date of refund/compliance.

2. The admitted facts are that, the appellant on 12.05.1980

applied for purchase of two flats bearing Nos.501 and 502 on the

5th Floor, 1st Block, Krishna Apartments, Bangalore for a total

sale consideration of Rs.4,95,000/­(four lakhs and ninety five

thousand). Along with the application, the appellant paid

Rs.1,00,000/­ (one lakh) each for the two flats by way of two

Demand­Drafts.

3. An agreement to sell was executed between the parties on

17.05.1980. As per para 3 of the agreement, possession was to be

delivered within a period of 18­21 months under normal

conditions subject, however, to the availability of cement, steel

and other building materials, electrical or power connections,

drainage connection and subject to and including any Act of God,

drought, flood or any other natural calamity and/or war

restrictions by the Government, Municipal Corporation or any

other public authorities or any other acts beyond the control of

the builders.

pg. 2

4. Under paragraph 6 of the agreement, it is provided that if

there was any default in payment of installments, the builder

would be at liberty to insist for payment of the amount due

together with interest @ 18% per annum from the date of default

till the date of payment on the defaulted amount.

5. The entire amount of Rs.4,95,000/­ (four lakhs and ninety­

five thousand) has since been paid by the appellant to the

respondent. A dispute arose sometimes in 1991 when the

respondent raised demand of Rs.1,56,046/­(one lakh fifty six

thousand and forty six) with respect to one apartment and

Rs.1,62,202/­(one lakh sixty two thousand and two hundred two)

for the other apartment. These demands were raised vide bill

dated 15.12.1991. These demands were objected to by the

appellant and a request was made to hand over the possession of

the two flats.

6. Apparently, possession was not given and, thereafter, it

appears that in January, 1999, the appellant visited the

apartments only to find that both the apartment Nos.501 and

502 had been transferred by the respondent in favour of third

parties. It was thereupon that the appellant made enquiries and

pg. 3 came to know that the respondent had cancelled the allotment on

17.01.1995 and, thereafter, transferred it to the third parties.

7. After giving due notice, the appellant approached the

NCDRC by way of a complaint praying for following reliefs:

"(a) To direct the Opposite Party to forthwith hand over to the Complainant vacant and peaceful possession of the flats allotted to it being Flats No.501 and 502, Krishna Apartments, Corporation No.13, Ali Asker Road, in Corporation Division No.59, Bangalore and to further pay a sum of Rs.22,50,000/­ towards delayed delivery till the date of the application together with damages in the sum of Rs.3,00,000/­ as specified in para 22 of the application:

(b) In the alternative to pay to the Complainant a sum of Rs.48,27,000/­ as detailed in Paras 21 and 22 above, with pendente lite and further interest at the rate of 18% per annum.

(c) Costs of and incidental to these proceedings be provided for, and

(d) Such other and further orders as this Hon’ble Commission may deem fit and proper in the circumstances of the case be passed.”

8. The respondent contested the complaint on technical

grounds as also on merit. According to the respondent, the

appellant was not a consumer and further that the cancellation

pg. 4 had taken place after several opportunities and due notice. The

appellant had disputed receiving of any notice.

9. The NCDRC by the impugned order held that the appellant

was a consumer as the amendment in the 1986 Act has been

brought in 2003 whereby a person who obtains goods for resale

or for any commercial purpose was not to be treated as a

consumer within the meaning of the definition of consumer

provided under Section 2(1)(d)(i) of the 1986 Act. Further, the

NCDRC also found fault on the part of both the parties. The

appellant not approaching the Commission with clean hands,

with much delay and further the respondent conducting himself

in a high handed and arbitrary manner. It accordingly disposed

of the complaint by directing the respondents to refund the

amount along with interest @ 9% w.e.f. 17.01.1995 till the date of

refund/compliance.

10. After hearing learned counsel for the parties and perusing

the material on record, we enquired from the respondents, as to

whether, the amount as awarded by the NCDRC in the impugned

order dated 16.03.2015 has been paid to the appellant or not. We

were informed that amount has not been paid so far. No

pg. 5 justification has come forward as to why the awarded amount

was not tendered to the appellant. The appellant has pressed for

the entire complaint being allowed as per the relief claimed

therein. On the other hand, the respondent has sought to justify

the order of NCDRC. However, there is no appeal by the

respondent. The appellant has also pressed vehemently that

respondent should be called upon to produce the sale deeds of

the two flats in question, transferred in favour of the third parties

and that the said amount ought to be paid to the appellant along

with other claims, the respondent has unjustly enriched itself by

the aforesaid conduct. On the other hand, this request has been

resisted by the respondents.

11. Having considered the submissions of the learned counsel

for the parties, we are in agreement with the findings recorded by

the NCDRC regarding the conduct of both the parties, however,

we feel that in the fitness of things and in the interest of both the

parties considering the nature of agreement made and also their

conduct that the order of the NCDRC requires to be modified. The

rate of interest awarded is only 9%. Once, we find that under the

agreement, in the event of default, the appellant's liability to pay

pg. 6 interest on the defaulted amount could go up to 18%, it would be

just and proper in the facts of the present case that 18% interest

be awarded on the refund amount.

12. We accordingly partly allow this appeal and in partial

modification of the impugned order of the NCDRC, we direct that

respondent will refund the amount of Rs.4,95,000/­(four lakhs

and ninety­five thousand) being the total sale consideration to

the appellant along with interest @ 18% per annum w.e.f.

17.01.1995 till the date, it is paid. The said amount be paid at

the earliest and in any case within a period of four weeks from

today.

13. There shall be no order as to costs.

14. Pending application(s) if any, is/are disposed of.

…..……..........................J. [ANIRUDDHA BOSE]

………….........................J. [VIKRAM NATH] NEW DELHI OCTOBER 11, 2022.

pg. 7