BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.311 of 2015

                                 Date of institution:            06.07.2015

                                           Date of Decision:            19.10.2015

Parbhat Singh son of late R.B.S. Thakur, resident of House No.1326, Sector 20-B, Chandigarh (UT).

    ……..Complainant

                                        Versus

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.

3.     Tijender Kumar Bansal, Director of BCL Homes, Village Kishanpura, NAC, Zirakpur, District Mohali, Punjab.

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member.

Mrs. R.K. Aulakh, Member.

Present:     Shri Divjyot Singh Sandhu, counsel for the complainant.

Opposite Parties exparte.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the OPs to:

(a)    refund him Rs.5.00 lacs with interest @ 18% per annum from the date of deposit till realisation.

(b)    pay him Rs.2.00 lacs for mental agony, tension and harassment.

(c)    pay him Rs.55,000/- as costs of litigation.

                The case of the complainant is that he booked a 3 BHK Flat measuring 2170 sq. ft.  in the project of the Opposite Parties (for short ‘the OPs’) for a total price of Rs.45,00,000/- As per the terms and conditions Ex.C-1, the complainant paid the booking amount of Rs.5.00 lacs vide two cheques of Rs.50,000/- and Rs.4.50 lacs dated 23.02.2012 respectively which was acknowledged by the OPs vide receipts Ex.C-2 & C-3. Thereafter the complainant visited the site a number of times and found that no construction has started at the site and it seemed that the OPs were in no way interested to complete the project.  The complainant contacted Ramesh one person of the OPs who assured him that they would complete the project very soon and hand over to the complainant a built up flat.  Thereafter, the complainant contacted OP No.2 who told that as they would not be able to complete the project the complainant can get refund of his money. Accordingly cheque dated 30.06.2015 for Rs.5,00,000/- was given to the complainant being the amount of earnest money.   The cheque when presented by the complainant could not be encashed due to insufficient funds.  Non refund of the booking amount is an act of deficiency in service and unfair trade practice on the part of the OPs.

2.             After admission of the complaint, notice was sent to the OPs. As per the India Post Tracking Report, the notices were  delivered to all the OPs on 04.08.2015.  After lapse of stipulated period of 30 days and none having appeared for the OPs, they were proceeded against exparte vide order dated 07.09.2015.

3.             Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-5.

4.             We have heard learned counsel for the complainant and have gone through the written arguments submitted by him.

5.             Admittedly the complainant has deposited Rs.5.00 lac vide receipts dated 17.02.2012 Ex.C-2 & C-3 with the OPs for booking of one 3 BHK flat in the proposed project of the OPs. Admittedly the complainant did not have any faith in the project as the OPs have failed to secure any sanction/approval from the competent authority for development of the project and, therefore, the complainant approached the OPs for refund of the already deposited amount alongwith interest.  Admittedly the OPs have returned Rs.5,00,000/- vide cheque dated 30.06.2015 Ex.C-4 which was deposited by the complainant with the OPs as earnest money. The said cheque has not been honoured by the bank of the OPs on account of deficient funds as per Ex.C-5. When again approached by the complainant, in this regard, the OPs have failed to pay to the complainant his booking amount with interest. The complainant has not disclosed whether he has filed petition under Section 138 of the Negotiable Instruments Act regarding the dishonoured cheque before the appropriate authorities or not. Non disclosure of such an information though is not vital to the present complaint, however, as a precaution, it will be appropriate to direct the complainant to disclose the status of the present complaint in case he desires to take alternative remedy under Negotiable Instruments Act, if so advised.  As per the complainant the dishonouring of the cheque issued by the OPs in lieu of the booking amount of Rs.5.00 lacs is an act of deficiency in service and unfair trade practice.

6.             Admittedly the amount of Rs.5.00 lacs remained in the possession of the OPs and the OPs have utilized this money for furtherance of their own cause and without giving any benefit to the complainant. The perusal of Ex.C-4 i.e. the cheque dated 30.06.2015 issued in the name of the complainant the OPs clearly shows that the OPs have returned the booking amount of Rs.5.00 lacs to the complainant after the complainant has submitted the original receipts to the OPs on 12.05.2013 vide Ex.C-3. However, in order to prove the dishonouring of the cheque the complainant has relied on the returned cheque memo Ex.C-5. The perusal of Ex.C-5 shows that the return memo has been issued by the bank in the name of some Tejinder Kumar Bansal and not in the name of the complainant. However, cheque number on the return memo and the cheque number on Ex.C-4 is the same. Therefore, it cannot be said that the complainant has received the return cheque memo from the bank on account of insufficient funds. The grievance of the complainant is that dishonouring of cheque on account of insufficient funds in the account of the OPs is an act of deficiency in service on their part. The complainant has failed to prove such deficiency in service on the basis of return cheque memo Ex.C-5 relied upon him which has been issued by the bank in the name of somebody else and not on the name of the complainant.  Therefore, the complainant has failed to prove his case of deficiency in service on the basis of evidence particularly Ex.C-5 which does not belong to him.

 7.            Therefore, the complaint is hereby dismissed. Certified copies of the orders be sent to the parties free of costs and thereafter the file be consigned to the record room.

Pronounced.                           

October 19, 2015                      

                                                                        (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

Member