DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.335 of 2016
Date of institution: 02.06.2016 Date of decision : 03.08.2018
Sushil Kumar Goel son of Shri Sita Ram Goel, resident of House No.37, 1st Floor, NAC, Manimajra, Chandigarh.
…….Complainant
Versus
1. BCL Homes Limited through its Director Shri Gopal Bansal, Village Kishanpura (Adj. Sector 20, Panchkula), Zirakpur, District Mohali.
2. Shri Gopal Bansal, Director, BCL Homes Limited, Village Kishanpura (Adj. Sector 20, Panchkula), Zirakpur, District Mohali.
2nd Address: House No.222, Sector 7, Panchkula (HR).
3. Shri Baldev Chand Bansal, Director, BCL Homes Limited, Village Kishanpura (Adj. Sector 20, Panchkula), Zirakpur, District Mohali.
2nd Address: House No.222, Sector 7, Panchkula (HR).
……..Opposite Parties.
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Shri Satish Kumar, counsel for complainant.
OPs ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, a Govt. employee having fixed salary was having ambition of having dream home in and around Peer Muchalla (Zirakpur), so as to save payment of hefty rent amounts. OPs launched new group housing project at Peer Muchalla, Zirakpur (adjoining Sector 20, Panchkula) and as such on allurements of OPs of providing dwelling unit, complainant deposited Rs.1,11,111/- with OPs. Assurance was given by OPs to complainant that in case the project not completed, then OPs to refund sum of Rs.1,51,111/- after 18 months. Allured by these assurance, amount of Rs.1,11,111/- was deposited on 11.11.2011 by complainant with OPs. Even it was disclosed that if prospective buyer would not like to retain the property, then OPs will refund amount of Rs.1,51,111/-. Name of the project was BCL Homes Ltd. OPs did not launch the project in question and as such it is claimed that they are under liability to refund a sum of Rs.1,51,111/-. Name of complainant was included in the project known as “Chinar Homes”. OPs issued two receipts bearing No.6170 dated 10.06.2013 of amount of Rs.1,11,111/- and No.6171 dated 10.06.2013 of amount of Rs.40,000/- in favour of complainant with assurance that complainant would be eligible in the draw of lots for allotment of dwelling unit in the above said project. Assurance was given by OPs that in case one becomes successful in the draw of lots conducted on monthly basis, then he will be entitled to 3 bedrooms flat in the Chinar Homes project at rate of Rs.55.00 lakhs and balance payment will be made at the time of offer of possession. Total 12 monthly draws were to be conducted by OPs. Assurance was even given that if one does not remain successful in draw of lots, then he will be eligible for refund of amount after one year with interest @ 18%. Letter dated 26.05.2013 even was issued by OPs for admitting about payment of Rs.1,51,111/- with interest @ 18%. When complainant objected for inclusion of his name in the draw of lots , then OPs verbally committed that in case complainant became successful in the said draw, then he will get the flat, otherwise OPs will give him Rs.2.00 lakhs as compensation for use of his money. In May, 2014, OPs informed complainant as if he remained unsuccessful in total of 12 monthly draws. OPs never invited or called upon complainant to take part in the draw of lots. OPs made complainant to fill a form for cancellation/surrender of registration of property for getting refund of Rs.1,51,000/- and accordingly acknowledgement was issued on 31.05.2014, but despite that the said amount not paid/refunded, albeit complainant contacted OPs numerous times through telephonic calls. This complaint filed after serving legal notice dated 13.03.2016 by claiming that OPs have adopted unfair trade practice. Refund of Rs.1,51,000/- with interest @ 18% per annum from 10.06.2013 till actual realisation claimed. Rs.2.00 lakhs as compensation as verbally committed by OPs even claimed alongwith compensation for mental harassment and agony of Rs.50,000/-. Complainant fell ill and that is why Rs.1,00,000/- more claimed as cost of medication and hospitalization charges borne as expenses by complainant for undergoing treatment of depression and heart related ailment. Litigation expenses of Rs.15,000/- more claimed.
2. In joint reply filed by OPs, it is pleaded inter alia as if complaint is false and misconceived being filed for humiliation and harassing OPs; this Forum has no pecuniary jurisdiction because aggregate of value of goods purchased is Rs.55.00 lakhs as per averments of the complaint itself. Neither any specific land was allotted to the complainant and nor any agreement was entered into between the parties and as such complainant alleged to be not falling in the definition of consumer. Complainant was time and again called upon to turn up for entering into agreement of sale for settling terms and conditions, but he deliberately avoided for the reasons best known to him. Concealment of material facts also alleged by claiming that complaint in present form is not maintainable. Even complaint alleged to be barred by principle of estoppel, waiver and acquiesce. Moreover, complaint alleged to be bad due to non joiner and mis-joinder of parties. Actual and factual position of proposal was explained by OPs to complainant time and again and then on acceptance of proposal complainant made the payment. Complainant was disclosed that the payment made by him pertained to the project known as “Chinar Homes”. No verbal commitment of paying Rs.2.00 lakhs as compensation ever made and allegation in that respect denied by claiming that complaint being false, vexatious and frivolous, merits dismissal.
3. Complainant through counsel tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-11 and thereafter closed evidence. Thereafter OPs did not turn up on many dates and nor produced evidence despite last opportunity and as such OPs were proceeded against ex-parte vide orders dated 25.04.2018.
4. Written arguments submitted by complainant. Oral arguments heard and records gone through.
5. Ex.C-1 is the document produced to show as if complainant got housing loan from his employer. Ex.C-2 is copy of statement of account of complainant showing as if he paid Rs.11,111/- through cheque on 14.11.2011 to OPs and thereafter paid another amount of Rs.1.00 lakh on 24.11.2011. After receipt of this amount of Rs.1,11,111/- as expression of interest towards property in the upcoming project of OPs, letter Ex.C-3 was issued by OPs i.e. BCL Homes. Through Ex.C-3 it was disclosed to complainant that in case he do not like to retain property after 18 months, then company will buy back the property with Rs.1,51,111/- after 18 months. However, as per Ex.C-3 in case OP company ask for installment before 18 months, then complainant will have option to retain it or propose to buy back to company @ Rs.1,15,111/-. In pursuance of this offer of buy back, OP company issued welcome letter Ex.C-4 acknowledging receipt of Rs.1,51,111/- vide receipts No.6170 and 6171 dated 10.06.2013. Copies of those receipts are produced as Ex.C-5 (numbering two). This documentary evidence enough to establish that OPs acknowledged having received Rs.1,51,111/- from complainant.
6. Through Ex.C-4 itself it was made known to complainant that in case he remained unsuccessful in any of the 12 monthly draws, then he will be eligible for refund of registration amount of Rs.1,51,111/- after one year with interest @ 18%. It is the case of complainant that he was not informed or invited at any time in the draw of lots and as such it is obvious that virtually draw of lots, if any, took place in accordance with contents of Ex.C-4, the same took place at the back of complainant. Complainant submitted cancellation/surrender of registration of property letter Ex.C-6 for acknowledging that he was to be paid back the amount of Rs.1,51,111/- with interest by way of issue of cheque/demand draft in his name. Rate of interest is not at all specified in Ex.C-6. This letter Ex.C-6 is addressed to Director, BCL Homes. As despite issue of this surrender/cancellation of registration of property letter, amount was not received by complainant and that is why he sent letter Ex.C-7 dated 21.03.2015 to OPs for calling upon them to refund the amount of Rs.1,51,111/- with interest @ 18% per annum w.e.f. 26.05.2013 till payment. Similar request letter Ex.C-8 was sent again on 07.09.2015 and as such it is obvious that complainant had not been returned back the promised amount of Rs.1,51,111/-. There is nothing in this correspondence to show that complainant was promised to pay compensation of Rs.2.00 lakhs for utilization of deposited amount of Rs.1,51,111/- by OPs. Even it does not appeal to reason and common sense that in case refund with interest @ 18% per annum offered, then compensation for use of money of amount of Rs.2.00 lakhs also will be offered. So plea of verbal commitment in this respect is untenable.
7. Complainant has produced on record treatment record Ex.C-9 for claiming that he suffered from depression and heart disease due to behavior of OPs in not returning the amount. It is well settled that remote damages cannot be granted. There is nothing on the record to suggest that actually treatment of heart ailment etc., if any, got by complainant, was on account of depression sustained by him due to behavior of OPs and as such remote claim of damages of Rs.2.00 lakhs for treatment cannot be allowed.
8. Legal notice Ex.C-10 was served by complainant to OPs through counsel by sending the same through registered post is a fact borne from perusal of postal receipt Ex.C-11. As receipt Ex.C-5 regarding acknowledge of amount of Rs.1,51,111/- issued by OPs on 10.06.2013 and as such complainant entitled to refund of paid amount of Rs.1,51,111/- with reasonable amount of interest with effect from the date of issue of this receipt Ex.C-5 namely 10.06.2013 till payment. Transaction in question virtually was for seeking home/apartment and as such keeping in view the prevalent rate of interest granted by courts in such transaction at 12% per annum, same rate of interest allowed. As OPs have not contested by adducing evidence and as such compensation for mental harassment and agony of Rs.20,000/- and litigation expenses of Rs.5,000/- allowed in favour of complainant and against OPs.
9. As a sequel of above discussion, complaint allowed with direction to OPs to refund the received amount of Rs.1,51,111/- (Rs. One Lakh fifty one thousand and one hundred eleven only) with interest @ 12% per annum with effect from the date of issue of receipt Ex.C-5 namely 10.06.2013 till payment. Compensation for mental agony and harassment of Rs.20,000/- and litigation expenses of Rs. 5,000/- more allowed in favour of the complainant and against the OPs. Payment of these amounts of compensation and litigation cost be made within 30 days from receipt of certified copy of order. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
August 03, 2018
(G.K. Dhir) President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
