DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.79 of 2017
Date of institution: 07.02.2017 Date of decision : 27.09.2018
Mrs. Navdeep Joshi wife of Mr. Vishal Joshi, resident of House No.3314/1, Sector 45-D, Chandigarh.
…….Complainant
Versus
1. BCL Homes Village Kishanpura, NAC Zirakpur, District Mohali through its Managing Director/Director.
2. Mr. Gopal Bansal, Managing Director/Director, BCL Homes, resident of House No.913, Sector 7, Panchkula.
3. Shri Baldev Chand Bansal, Director, BCL Homes Ltd., R/o House No.253, Sector 7, Panchkula 134109.
……..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 Abhishek Bhateja, counsel for complainant.
OPs ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
OPs advertised about floating of housing project named and styled as BCL Homes, Kishanpura, Zirakpur through newspapers and local FM radio. On allurements given through these advertisements and assurances given by OPs to the effect that construction will be completed at earliest, complainant agreed to purchase flat at price of Rs.13.00 lakhs. An amount of Rs.3.00 lakhs was paid by complainant through two cheques drawn on SBI and thereafter receipts were issued by OPs. Buyer agreement was promised by OPs to be executed, but the same has not been executed. Complainant visited site number of times for finding that no construction has been started on the spot. Rather OPs in no way interested in completing the project and delivering possession of the flat to complainant and as such it is claimed that OPs has not only provided deficient services, but even harassed the complainant. Prayer made for directing OPs to refund the received amount of Rs.3.00 lakhs with interest @ 18% per annum. Compensation for mental harassment and agony of Rs.5.00 lakhs and litigation expenses of Rs.25,000/- more claimed.
2. In joint reply submitted by OPs, it is pleaded inter alia as if the complaint is false and misconceived and has been filed for harassing and humiliating the OPs; consumer dispute does not exist due to which complaint not maintainable, more so when it is filed for abusing process of law. It is also claimed that complainant has not been allotted any particular unit by OPs and that complainant is guilty of suppressing material facts. Complainant was called upon time and again to enter into an agreement, but she deliberately avoided for the reasons best known to her. No deficiency in service on part of OPs is there. Dispute between parties is alleged to be purely of civil nature and as such it is pleaded that the same may be got decided from civil court of competent jurisdiction, more so when intricate questions of law and facts requiring elaborate evidence, are involved. Complaint also alleged to be barred by principle of estoppel, waiver and acquiesce as well as limitation. Complaint further alleged to be bad due to non joiner and mis-joinder of parties. No cause of action has accrued in favour of complainant and as such by denying other averments of the complaint, prayer made for dismissal of the complaint. However, it is admitted that OPs issued letter of intent dated 08.06.2012. That letter does not enable the complainant to fall in the purview of consumer. Purchase of flat at given price was only an expression of interest showed by complainant, but same was subject to entering into agreement of sale. As complainant herself failed to enter into an agreement and as such fault lays with complainant. Complainant put forth many excuses for gaining time to enter into agreement and that request was allowed by OPs as a goodwill gesture. Sole motive of filing complaint is to tilt proceedings of recovery suit. Besides it is claimed that complainant is an investor and she is seeking refund because of slump in the real estate market.
3. Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-3 and thereafter her counsel closed evidence. No evidence led by OPs despite grant of sufficient chance. Rather none appeared for OPs despite repeated adjournments and as such OPs were proceeded against ex-parte, but before that their evidence was closed by order dated 28.05.2018.
4. Written arguments not submitted. Oral arguments heard and records gone through.
5. Perusal of receipts Ex.C-1 and Ex.C-2 alongwith letter Ex.C-3 issued by OP No.1 reveals that OPs acknowledged having received Rs.3.00 lakhs from complainant as expression of interest towards flat. No buyer agreement arrived at between the parties. OPs are attributing fault regarding non execution of the buyer agreement to complainant, but no material in that respect has been produced by OPs at all. In view of this, it has to be held that as complainant deposited Rs.3.00 lakhs with OPs for purchase of flat for needs of her family and as such she is entitled for refund of that amount, more so when the project in question neither started by OPs and nor the construction carried out. If construction has not been carried out on the spot, then question of delivery of possession of the flat by OPs to complainant does not arise. So keeping in view contents of affidavit Ex.CW-1/1 of complainant, it is obvious that fault lay with OPs in not completing the project and delivering the possession, despite accepting payment of Rs.3.00 lakhs on 07.06.2012.
6. If we go by contents of Ex.C-3, then it is made out as if amount of Rs.3.00 lakhs deposited by complainant with OPs for expressing interest for purchase of flat only. So virtually no contract was arrived at. Complainant has not entered into any correspondence with OPs for calling upon them to execute buyer agreement in her favour. Even complainant has not called upon OPs at any point of time to refund the amount paid by her or to deliver possession of the flat. Even complainant has never tried to ascertain from OPs number of the flat, which will be allotted to her or locality within which flat to be situate. Being so, complainant herself remained defaulter in not seeking delivery of possession or execution of buyer agreement by OPs. Keeping in view this conduct of complainant and the fact that no request for refund earlier submitted prior to filing of this complaint on 07.02.2017, entitlement of complainant for refund of paid amount will be w.e.f. 07.02.2017, the date of filing of complaint and not before that. However, complainant stood mentally harassed because of non providing of any information by OPs to complainant for 5 years qua status of construction of the flat or of carrying of the construction of the flat even or of disclosing of location of the flat. So complainant entitled for compensation for mental harassment and agony and of litigation expenses, but of reasonable amount. OP No.2 and 3 are directors of OP No.1 and as such liability of OPs to pay the adjudged amount will be joint and several.
7. As a sequel of above discussion, the complaint is allowed ex-parte with direction to OPs to refund the received amount of Rs.3.00 lakhs (Rs. Three Lakhs only) with interest @ 12% per annum from the date of filing of complaint namely 07.02.2017 till payment. Compensation for mental agony and harassment of Rs.20,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against OPs. Liability of the OPs to pay above referred adjudged amounts will be joint and several. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Certified copies of order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
September 27, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
