DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.200 of 2016
Date of institution: 11.04.2016 Date of decision : 03.01.2018
Mohd. Asraul Haque Khan son of Moh. Haque Khan, resident of 2347, 2nd Floor, Sector 44-C, Chandigarh.
…….Complainant
Vs
1. BCL Homes, Village Kishanpura, NAC Zirakpur, District Mohali Punjab through its Managing Director/Director.
2. Mr. Gopal Bansal, Managing Director/ Director, BCL Homes, Village Kishanpura, NAC Zirakpur, District Mohali Punjab
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Present: Shri Divjyot S. Sandhu, cl. for the complainant.
None for the OPs. They are ex-parte
Order by :- Shri G.K. Dhir, President.
Order
Complainant, on allurements of OPs after seeing the advertisement published in newspaper purchased a 3 BHK flat by paying Rs.65,000/- as registration amount on 17.05.2012 vide receipt No.4520. As per terms and conditions, it was agreed that in case the complainant aspired to have refund, then OPs will pay the same by paying interest @ 18% per annum. However, on demand of the OPs or if for any reason, the complainant was not interested in paying the installments, then the OPs will refund the registration amount of Rs.65,000/- alongwith Rs.2.00 lakhs. Thereafter complainant visited the site many times and found as if no construction started there. Even OPs seems to be not interested in completing the project. Thereafter complainant started contacting OPs and one Mr. Ramesh having Mobile No.9872720419 and 9216757413 and got assurance that the project will be started soon and flat will be built up. Again despite numerous visits by complainant and sending of SMSs, nothing was done by OPs. Rather complainant later on came to know as if OPs have collected huge amounts from gullible investors without keeping of promise of completing the project. Legal notice was served but the same did not entail any consequence and as such this complaint filed by claiming as if the OPs provided deficient services and adopted unfair trade practice. Refund of paid amount of Rs.65,000/- alongwith interest @ 18% per annum from the date of deposit is sought. Besides Rs.1.00 lakh as compensation for mental agony and harassment and Rs.55,000/- as costs of litigation expenses claimed.
2. In joint reply filed by the OPs, it is pleaded inter alia, as if the complaint filed on false facts for harassing and humiliating the OPs; complainant is not consumer as defined under the Consumer Protection Act (hereinafter referred as the Act); complaint is not maintainable in the present form; complaint barred by principles of estoppel, waiver and acquiescence and same also bad due to non-joinder and mis-joinder of parties. Besides, it is claimed that in view of involvement of intricate questions of law and facts, the matter should be got adjudged from the Civil Court of competent jurisdiction. Complainant in fact wants to have benefit of his own wrong. As particular unit to complainant has not been allotted by the OPs and as such the complaint is not maintainable. Complainant was called up to enter into agreement of sale for settling terms and conditions, but he deliberately avoided for reasons best known to him. Concealment of material facts also pleaded. Admittedly, OPs advertised the housing project named and styled as BCL Homes through newspapers as well as on local FM Radio. No commitment was made by OPs that the construction raised will be world class construction having best amenities. However, it was disclosed to complainant as if the construction would be of good quality commensurate with price of the unit. Refund on asking of the complainant was subject to just exceptions. Construction was started in time and the OPs have started handing over possession of the units to its customers. Complainant even got booked one more unit with the OPs and complaint alleged to be barred by limitation. Besides it is claimed that the complainant has no cause of action available with him.
3. Complainant to prove his case tendered into evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to C-4 and then closed evidence.
4. The OPs failed to produce any evidence and as such evidence of OPs closed by order dated 13.09.2017. Thereafter none appeared for the OPs and as such OPs were proceeded against ex-parte vide order dated 03.01.2018. Written arguments had already been submitted by complainant. Oral arguments of complainant heard and records gone through.
5. Perusal of affidavit Ex.CW-1/1 of complainant alongwith copy of receipt Ex.C-1 establishes that an amount of Rs.65,000/- was paid by complainant to the OPs on 17.05.2012. Letter Ex.C-2 of same date acknowledges due receipt of registration amount of Rs.65,000/-. In Ex.C-2 itself it is mentioned that if complainant seeks refund, then OP Company will refund the registration amount with interest @ 18% per annum. However, when OP company will demand first installment from the complainant, and complainant not interested in paying installment, then OP company will refund registration amount of Rs.65,000/- alongwith Rs.2.00 lakhs. This refund undertaken to be made within one month of request through Ex.C-2. Grievance of the complainant through affidavit Ex.CW-1/1 as well as complaint is that the OPs have not started construction work on the spot and as such they are not in a position to handover possession of the housing flat to complainant. It is claimed through affidavit Ex.CW-1/1 that complainant visited the site number of times, but found as if no construction started on the spot. Rather it is claimed that OPs are not in any way interested in completing the project and if that be the position, then certainly the fault lays with the OPs in not fulfilling their promise of starting construction and then handing over possession of the flat to complainant. So keeping in view terms of letter Ex.C-2, certainly the complainant entitled for refund of paid registration amount of Rs.65,000/- with interest @ 12% per annum from the date of payment till realisation. Payment of interest @ 18% will be exorbitant because as per practice prevalent in the market, commercial transactions carry interest @ 12% per annum now-a-days.
6. The above said amount of Rs.65,000/- has not been refunded despite issue of legal notice Ex.C-3 sent through postal receipt Ex.C-4 and as such the terms and conditions stipulated in Ex.C-2 regarding refund, on being sought by complainant, even has not been complied with by the OPs resulting in mental harassment and agony of complainant as well as his dragging in litigation. So complainant certainly entitled to compensation for mental harassment and agony as well as to litigation expenses, but to reasonable amount by keeping in view the fact that if interest @ 12% per annum computed w.e.f. 17.05.2012 till payment, then the same will go beyond the paid principle amount of Rs.65,000/- even. Keeping in view the rule of Damduput, the amount of compensation for mental harassment and agony must not exceed Rs.10,000/-. OPs virtually after filing of written statement have not put forth much resistance resulting in closure of their evidence by order and as such costs of Rs.5,000/- will be sufficient.
7. The complainant certainly is a consumer because he paid registration amount for purchase of housing unit and not a commercial unit.
8. As a sequel of above discussion, the complaint is allowed by directing the OPs to refund the received amount of Rs.65,000/- with interest @ 12% per annum w.e.f. 17.05.2012 till payment. Compensation for mental harassment and agony of Rs.10,000/- and litigation cost of Rs.5,000/- more allowed in favour of the complainant and against the OPs, whose liability is adjudged as joint and several. Payment of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. File be indexed and consigned to the record room.
Announced
January 03, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
