…..Opposite Parties.
Complaint Under Section 35 of Consumer Protection Act, 2019.
Before Sh. Jaswant Singh……President.
Sh. Vineet Kaushik…….Member
Argued by: Shri Baljeet Singh representative of complainant.
Shri Deepak Chauhan, counsel for the OPs.
(Jaswant Singh, president)
ORDER:
The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019, against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant is registered owner of plot no.C-072 situated in the residential colony developed in the name of Ansal town, Karnal at village Kasba (Sector 36), Karnal and the sale deed of this plot is registered in favour of complainant, vide sale deed no.9906, dated 15.03.2016, registered in the office of Sub Registrar, Karnal, Haryana. The actual physical possession of this plot was handed over to the complainant on 26.03.2016. At the time of allotment of this property a sum of Rs.72,800/- was charged (excluding sale consideration price) by the OPs, out of this Rs.20,000/- was charged for Membership Admission fees, Rs.50,000/- was charged for security deposit and Rs.2800/- for service tax. The OPs had charged these charges for providing club facility in the aforesaid township but till today not any kind of club facility is ever provided to the complainant. The complainant was never interested to take such club facilities still she was forced to pay this amount. Now OPs have stopped charging these club charges from the new allottees/transferees. When complainant came to know about the same, she sent an email to Mr. Sabu Thomas (authorized person) for refund of this amount but there was no response from Mr. Sabu Thomas. Complainant has also served an application to the concerned employee of OPs for refund the club charges but OPs have given no response about the refund. In this way there is deficiency in service and malpractice on the part of the OPs. Hence this complaint.
2. On notice, OPs appeared and filed its written version, raising preliminary objections with regard to maintainability; cause of action; locus standi and concealment of true and material facts. On merits, it is pleaded that in the year 2018, complainant had requested to the OPs to shift the amount paid by her on account of facility of Ansal Club at Ansal Town, Karnal with the OPs into her SEMS account of the plot in question and accordingly OPs had accepted her request and thereafter the OPs had initiated the refund in SAS on 03.11.2018 and said amount is credited to the Sunrise Estate Management Services (SEMS) account of the said plot no.C-72 of the complainant. But complainant has dishonestly and malafidely withhold the above facts from this Commission and filed a false and frivolous complaint. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.
3. Parties then led their respective evidence.
4. Representative of complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of registration certificate of plot no.C-72 of Ansal Town Ex.C1, copy of Map of plot Ex.C2, copy of receipt club charges Ex.C3, copy of transfer certificate of plot Ex.C4, copy of representation made to Ansal Housing for refund of club charges Ex.C5 and closed the evidence on 07.12.2021 by suffering separate statement.
5. On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Dushyant Arora Ex.RW1/A, copy of credit note SEMS Ex.OP1, copy of transfer of plot Ex.OP2 and closed the evidence on 19.04.2023 by suffering separate statement.
6. We have heard the representative (father-in-law) of complainant and learned counsel for the OPs and perused the case file carefully and have also gone through the evidence led by the parties.
7. Representative of complainant, while reiterating the contents of the complaint, has vehemently submitted that complainant is registered owner of plot no.C-072 situated in the Ansal town, Karnal. The actual physical possession of this plot was handed over to complainant on 26.03.2016. At the time of allotment of plot a sum of Rs.72,800/- was charged by the OPs for providing club facility but no club facility were ever provided. OPs have now stopped charging these club charges from the new allottees/transferees. When complainant came to know about the same, she sent an email to OPs for refund of this amount but OPs have given no response about the refund and lastly prayed for allowing the complaint.
8. Per contra, learned counsel for the OPs, while reiterating the contents of written version, has vehemently argued that in the year 2018, complainant had requested to the OPs to shift the amount paid by her on account of facility of Ansal Club at Ansal Town, Karnal with the OPs into her SEMS account of the plot in question and accordingly OPs had accepted her request and said amount has been credited to the SEMS account of the said plot no.C-72 of the complainant and now complainant is not liable to any refund and prayed for dismissal of the complaint.
9. We have duly considered the rival contentions of the parties.
10. Admittedly, OPs have charged extra Rs.72,800/- towards the plot in question. It is also admitted that no club facility was ever provided to the allottees. It is also admitted that OPs have stopped charging these club charges from the new allottees/transferees.
11. As per the version of the OPs, on the request of the complainant, OPs have transferred the said amount of Rs.72800/- in the Sunrise Estate Management Services (SEMS), vide receipt Ex.OP1 dated 01.07.2021. The onus to prove its version was relied upon the OPs but OPs have miserably failed to prove the same by leading any cogent and convincing evidence. OPs have not placed on file any request made by the complainant to prove its version rather during the course of arguments, representative of complainant has placed on record receipts dated 28.04.2020, 24.07.2021, 04.12.2021, 25.03.2021, 30.06.2022 and 22.10.2022 showing making payments towards the maintenance charges to the Sunrise Estate Management Services by the complainant. The complainant has requested the OPs to refund the amount of Rs.72,800/- alongwith interest, vide application Ex.C5 but the OPs despite refunding the said amount to the complainant has transferred the same in the account of SEMS. It is the Sunrise Estate Management Services, who was initiated to collect the maintenance charges from the allottees directly. The OPs have no right to transfer the said amount of the complainant in the account of SEMS towards maintenance charges. Furthermore, OPs have also failed to prove on record that they have given any intimation to the complainant or to the SEMS regarding the transferring of the abovesaid amount in the account of SEMS as a consequence of which the complainant has made the double payment of maintenance charges to the SEMS. It is not a case of the OPs that complainant was defaulter for not paying the maintenance charges. It appears that OPs have intentionally and deliberately transferred/credited the said amount in the account of SEMS.
12. Hence, in view of the above, the act of the OPs amounts to deficiency in service and unfair trade practice. Hence, the complainant is entitled for refund of the amount of Rs.72,800/- alongwith interest, compensation for mental harassment and litigation expenses etc.
13. Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund the amount of Rs.72,800/- (Rs. seventy two thousand eight hundred only) to the complainant alongwith interest @ 9% per annum from the date of deposition till its realization. We further direct the OPs to pay Rs.10,000/- to the complainant on account of mental agony and harassment and Rs.5500/- towards the litigation expenses. This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.
Announced
Dated:03.07.2023
President,
District Consumer Disputes
Redressal Commission, Karnal.
(Vineet Kaushik)
Member
