DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.408 of 2016

                                             Date of institution:  05.07.2016

                                             Date of decision   :  21.03.2018

Manoj Kumar son of Shri Vishwanath Saini, Resident of H. No. 3404, Sector-46/C, Chandigarh.

AND

Mrs. Neena Saini wife of Sh. Manoj Saini, Resident of H. No. 3404, Sector-46/C, Chandigarh.

…….Complainants

Versus

BCL Homes Ltd, (Through its Managing Director) Village Kishanpura (Adjacent to Sector-20 Pkl), NAC, Zirakpur, District Mohali.

……..Opposite Party

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 Parveen Gupta, counsel for the complainants.

                OP ex-parte.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainants applied for allotment of 200 Sq. yards of plot @ Rs.15,000/- per sq. yard by submitting registration form dated 17.02.2012 with OP along with two cheques of amounts of Rs.2.00 lakhs and Rs.1.00 lakh each, numbers whereof given in Para 2 of the complaint. Vide letter dated 23.04.2012, OP accepted expression of interest to buy 200 Sq. yard plot at the rate of Rs.15,000/- per sq. yard and acknowledged receipt of Rs.3.00 lakhs. Plot was promised to be allotted within 12 months of the date of allotment/confirmation, but despite extra period of 4 years, the same has not been allotted to the complainants. Rather complainants got knowledge as if OP does not have any land for allotment of plot in NAC, Zirakpur. Thereafter, OP offered allotment of plot at alternative sites, but the same was not agreeable to the complainants.  Letter dated 22.12.2014 was sent by complainants to the OP regarding delay in getting possession of the plot. Buy back option even was given to the complainants by the OP. Again complainants sent letter dated 20.01.2015 to OP for delay in delivery of possession of the plot by mentioning that refund @ Rs.15,500/- per sq. yard may be done immediately. Possession of plot had been delayed for more than 3 years and as such complainants claim that they are entitled for refund of the amount of Rs.3.00 lakhs with interest @ 18% per annum from the date of deposit till refund. Compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs. 25,000/- more claimed.

2.             In reply filed by the OP, it is pleaded inter alia as if the complaint is filed on false and misconceived facts for humiliating and harassing the OP. Complainants are not consumers because of their being prospective investors for earning profit. Complaint alleged to be filed by abusing process of law. Moreover the matter is question alleged to be of civil nature, which can be got adjudicated from civil court of competent jurisdiction in view of involvement of intricate questions of law and facts. No specific allotment of any unit made to the complainants and as such the present complaint alleged to be not maintainable because the dispute in question is not covered under the provisions of Consumer Protection Act, 1986.  Complainants were called time and again to enter into an agreement for sale in order to settle terms and conditions, but they deliberately avoided for the reasons best known to them. Complaint also alleged to be bad due to non-joinder and mis-joinder of necessary parties. Moreover the allegations leveled in the complaint alleged to be vague. Price of the apartment in question is Rs.45.00 lakhs and as such this Forum alleged to be lacking pecuniary jurisdiction. Complainants were obliged to turn back for disclosing their intention for further deal, but they did not turn up. Though OP through its sales team called upon complainants many times to visit its office for entering into an agreement, but complainants failed to turn up. By denying other averments of the complaint, prayer made for dismissal of the complaint.

3.             Complainants tendered in evidence affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to C-6 and closed evidence. Counsel for OP tendered in evidence affidavit Ex.OP-1/1 of Baldev Chand Bansal, Director of the OP and thereafter closed the evidence.

4.             Written arguments submitted by complainant and not by the OP. Thereafter none turned up for the OP. Even counsel for the OP pleaded no instructions to appear for the OP and as such the OP was proceeded against ex-parte. Oral arguments of counsel for the complainant heard and records gone through.

5.             Contents of affidavit Ex.CW1/1 of the complainants along with registration form Ex.C-1 and the un-exhibited copies of cheques produced on record along with receipts numbering two (Ex.C-2) issued by the OP establishes that complainants deposited Rs.3.00 lakhs  with OP on 09.04.2012 through two cheques. Acknowledgement of receipt of this amount of Rs.3.00 lakhs even made by the OP through letter Ex.C-3 dated 23.04.2012. Complainants were interested to buy plot of 200 Sq. yards @ Rs. 15,000/- per sq. yard, is a fact borne from contents of Ex.C-3. Option of buy back the plot @ Rs.15,500/- per sq. yard by OP even was given to the complainants through letter Ex.C-3. Request for cancellation of expression of interest and refund of amount of Rs.4.00 lakhs was put forth by the complainants through letter Ex.C-4 dated 22.12.2014. This request for cancellation submitted because no development was found taking place on the spot.  As amount of Rs.3.00 lakhs alone was deposited by the complainants and as such seeking of refund of Rs.4.00 lacs on cancellation of expression of interest through Ex.C-4 is not proper at all. Reminder for refund of Rs.4.00 lakhs even was sent through letter Ex.C-5 dated 20.01.2015 and thereafter legal notice Ex.C-6 was sent to the OP by the complainants before filing this complaint However, affidavit Ex.OP-1/1 of Shri Baldev  Chand Bansal, Director of OP concern is to the effect that complainants themselves did not turn up for executing the buyers agreement,  despite being called upon many times and as such it is obvious that fault also lays with complainants in not getting the agreement of sale executed for settling the terms and conditions. That deliberate avoiding by complainants denudes them of availing right of claiming interest from the date of deposit till issue of notice Ex.C-4 dated 22.12.2014. As refund for the first time sought on 22.12.2014 through notice Ex C-4 and as such complainants are entitled for refund of the paid amount of Rs.3.00 lakhs with interest @ 12% per annum from the date of issue of notice Ex.C-4 dated 22.12.2014 till payment. Complainants unnecessarily has been dragged in this litigation and as such they are entitled to compensation for mental harassment and agony and also to litigation expenses.

6.             After going through ratio of case  Ruhi Seth versus IREO Grace Realtech Pvt. Ltd, bearing Consumer Case No.1464 of 2017 decided on 13.11.2017 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, it is made out that in case refund of the deposited amount plus compensation claimed without seeking enforcement of the direction of delivery of possession, then the figure of claimed relief should be taken into consideration because  the consumer concerned does not intends  to proceed ahead with the available remedy. Ratio of this case is fully applicable to the facts of the present case particularly when the relief claimed is of refund of booking amount of Rs. 3.00 lakhs and the claim of compensation for mental agony and harassment of Rs.1.00 lakh and of Rs. 25,000/- for litigation costs put forth. So complaint before this Forum is maintainable.

7.             As a sequel of above discussion, the complaint allowed with direction to the OP to refund the received amount of Rs. 3.00 lakhs with interest @ 12% per annum with effect from the date of issue of the notice Ex.C-4 namely 22.12.2014 till payment . Compensation for mental agony and harassment of Rs.20,000/- and litigation costs of Rs. 5,000/- more allowed in favor of the complainant and against the OP. Payment of these amounts of compensation and litigation costs be made within 30 days from date of  receipt of certified copy of order.  Certified copies of the order be sent to the parties as per rules. File be consigned to the record room.

Announced

March 21, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                                   (Amrinder Singh Sidhu)                                                                 Member

(Mrs. Natasha Chopra)

Member