DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Prem Chand Guru, #2165/2, Sector 45-C, Chandigarh – 160047.

…..Complainant

                                      V E R S U S

Ansal Properties & Infrastructure Limited, SCO No.183-184, Sector 9-C, Madhya Marg (above British Library), Chandigarh, through its Directors.

                                                ……Opposite Party

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

Argued by: Sh.Harsh Manocha, Counsel for complainant.

                     Sh.Vaibhav Narang, Counsel for OP.

PER P.L.AHUJA, PRESIDENT

1.                Sh.Prem Chand Guru, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Ansal Properties & Infrastructure Limited - Opposite Party (hereinafter called the OP), alleging that he booked a flat with the OP on 21.4.2010 by paying a sum of Rs.1,50,000/- as booking amount vide receipt No.95721 dated 21.4.2010, copy of which is at page No.6 of his documents. It has been contended that the OP was requested several times and even by frequent visits to its office for taking payment of balance amount but the requests of the complainant went futile because the OP neither accepted the payment nor gave any satisfactory resolve to the issue. After considerable delay, ultimately the complainant sent a request on 28.12.2011 under speed post. The complainant also sought information under Right to Information Act 2005 vide letter dated 27.1.2012, which was refused on the ground that Right to Information Act was not applicable to the OP and he was asked to visit the office of the OP. The complainant visited the office of OP many times but no fruitful result was achieved. The complainant also served a legal notice dated 28.6.2012 upon the complainant but the OP simply asked him to take refund vide its letter dated 2.7.2012. The complainant has alleged that the market value of such planned flat has risen up manifold and it is beyond his capacity at this age and stage being senior citizen to buy a flat at other place. The tentative cost of this type of flat is between Rs.15,00,000/- to Rs.17,00,000/- now. The complainant has alleged unfair trade practice and deficiency in service on the part of OP. The complainant has made a prayer for a direction to the OP to hand over the possession of the disputed flat after taking balance payment and also to refund the money at the market value i.e. over Rs.5 to 7 lacs than the original cost of the flat, apart from the refund of booking amount of Rs.150000/-. He has also made a prayer for payment of compensation for deficiency in service and litigation costs.

2.                OP in its written statement has pleaded that the complainant has not approached the court with clean hands. The complainant has deliberately not annexed advance registration form with the complaint in order to mislead and misguide the court. The advance registration form clearly contained all the terms and conditions agreed between the parties at the time of making an application for the allotment of plot but the complainant in order to twist the facts of the case and in order to extract money has not attached the said form with the complaint. It has been averred that the OP has not accepted the payment due to unavoidable circumstances because the project in question could not be initiated. It has been averred that the complainant has been requested several times to accept the refund of his payment but he has denied to accept it and demanded that allotment letter should be issued to him. It has been averred that the complainant never approached the OP by way of procedure prescribed in the advance registration form for allotment. It has been averred that the legal notice dated 28.6.2012 was duly replied and it was stated that as per Clause D of the advance registration form for allotment, the complainant may exercise the option and seek refund from the company. It has also been averred that the OP has refunded the money to other similarly situated persons on their demand made as per Clause D of the refund letter.

3.                In his rejoinder, the complainant has pleaded that at the time of giving advance amount for registration, the OP took signatures on many papers in hush push manner pretending to be just as a formality and the advance registration form was one of those documents and none of the papers was ever supplied to the complainant.

4.                The parties led evidence in support of their contentions.

5.                We have appraised the entire evidence and heard the arguments addressed by the learned Counsel for the parties.

6.                The learned Counsel for the complainant has urged that after taking the advance money of Rs.1,50,000/- on 21.4.2010, the complainant was never informed that the project could not be initiated. He has contended while placing reliance on Kamal Sood (Brig.) (Retd.) Vs. DLF Universal Ltd. 2007(2) CPC 242 and Veena Khanna Vs. Ansal Properties & Industries Ltd. & Ors. III(2007) CPJ 185(NC) that if a builder makes express promise to deliver possession within stipulated time after collecting money from prospective buyer and fails to obtain necessary permission from the Government then it is not proper. The learned Counsel for the complainant has urged that the OP has not delivered the possession of the flat to the complainant so far. He has further argued that since the market value of the flats have risen up manifold, therefore, the complainant being a senior citizen is unable to buy a flat at any other place. The learned Counsel for the complainant has argued that the OP has indulged in unfair trade practice as well as deficiency in service and the complainant is entitled to the relief claimed for.

7.                On the other hand, the learned Counsel for the OP has contended that the OP could not initiate the project in question due to unavoidable circumstances. He has contended that the complainant was requested several times to accept the refund of his payment as per procedure prescribed in Clause (d) of the advance registration form of allotment, copy of which is Annexure – A. He has argued that the complainant may exercise the option and seek refund of the money from the OP as per terms and conditions in the advance registration certificate. He has argued that OP has refunded money to other similarly situated persons on their demand made as per Clause (d) of the refund letter. In this connection, the learned Counsel for the OP has produced a list of various persons to whom the amount has been refunded.

8.                We have given our thoughtful consideration to the rival contentions. It is the admitted case of the OP that the complainant booked a flat with it on 21.4.2010 by paying a sum of Rs.1,50,000/- as booking amount vide receipt at page No.6 of the complaint. As far as the question of direction to the OP to handover the possession of the disputed flat by taking balance payment is concerned, it is significant that the project has not yet been initiated, therefore, there cannot be any question of handing over of the possession of the flat to the complainant. It is not practicable  to give a direction to the

OP to hand over the possession of the flat to the complainant, the construction of which has not yet been started.

9.                The rulings cited by the learned Counsel for the complainant are not applicable to the facts of the present case because in the instant case, the complainant has simply booked a flat with the OP and paid the booking amount only. No agreement for sale of the flat has been executed between the parties. No flat has been allotted to the complainant so far. In this view of the matter, the OP cannot be directed to handover the possession of the flat or to refund the money at the market value i.e. over Rs.5 to 7 lacs than the original cost of the flat. However, the complainant can certainly be paid compensation for harassment and mental agony.

10.              In regard to the question of refund of the money of Rs.1,50,000/-, though the OP has pleaded that the complainant had been requested several times to accept the refund of the payment, yet it has not produced any other document except the reply to legal notice dated 2.7.2012 – Annexure VI to show that the complainant was requested to accept the refund of the payment. So far as the question of exercise of option mentioned in Clause (d) of the advance registration form – Annexure A by the complainant is concerned, the OP has not produced any such material, which could show that the copy of the advance registration form was supplied to the complainant. At any rate, since the said registration form is signed by the complainant, it cannot be stated that the complainant was not aware of the terms and conditions of the said form. In accordance with the said Condition (d) of the advance registration form – Annexure A, in case the company is not in a position to make an offer of allotment for the registration of plot/flat within a period of 24 months from the date of the application, the applicant has the right to withdraw the money and ask for refund by giving 60 days notice along with interest calculated @10% from the date of payment of advance. The said condition is binding on both the parties. The OP has not made any offer of the allotment of the registration of flat to the complainant within a period of 24 months from the date of making of the application i.e. 29.3.2010, therefore, the complainant is certainly entitled to withdraw the money. It is significant to note that the complainant served a legal notice – Annexure V upon the OP on 28.6.2012 through registered post but the OP did not reply that the project in question could not be initiated on account of the unavoidable circumstances. The OP has also not elaborated as to what were those unavoidable circumstances on account of which the project could not be started. We are of the view that once a legal notice was served upon the OP and the OP had not initiated the project, the OP should have refunded the money with stipulated rate of interest there and then. Since the OP did not give any reply to the notice that the project could not be initiated nor refunded the amount of advance payment, the conduct of the OP points out towards deficiency in service on its part.

11.              For the reasons recorded above, we find merit in the complaint and the same is partly allowed. OP is directed to refund the booking amount of Rs.1,50,000/- to the complainant with interest @ 10% p.a. from the date of making payment of advance till realization. OP is also directed to make payment of compensation of Rs.20,000/- to the complainant on account of harassment and mental agony and Rs.7500/- towards litigation costs.

12.               This order shall be complied with by the OP within one month from the date of receipt of its certified copy, failing which, OP shall be liable to refund the above said awarded amount to the complainant along with interest @ 12% p.a. from the date of making payment of advance till realization, besides costs of litigation.

13.              The certified copies of this order be sent to the parties free of charge. The file be consigned.