Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO(s).4913 of 2015
M/s. ASHOKA INVESTMENT CO. …APPELLANT(S)
VERSUS
M/s. UNITED TOWERS INDIA (PVT.) LTD. …RESPONDENT(S)
J U D G M E N T
Vikram Nath, J.
1. This appeal by the Consumer under Section 23 of the
1
Consumer Protection Act, 1986 has been filed assailing the
correctness of the order dated 16.03.2015 passed by the National
2
Consumer Disputes Redressal Commission , (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
th st
5 Floor, 1 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