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

                                  Consumer Complaint No.  35 of 2015

                                 Date of institution:          02.02.2015

                                           Date of Decision:            20.04.2016

Sukhwinder Kaur w/o Amarjit Singh, resident of Plot No.544, Industrial Area Phase-9, Mohali, Tehsil and District Mohali.

                                  ……..Complainant

      Versus

1.     Chairman, Sherwood Officers Society (Regd.), Sherwood Estate, Opp. New Cantt, Wagha Bye Pass, Amritsar.

2.     RKM City  through its Manager Site office Landran, Tehsil and District Mohali.

                                                        ………. 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 Iqbal Singh, counsel for the complainant.

Shri Ashok Verma, counsel for OP No.1.

Shri Manpreet Singh, counsel for OP No.2.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

(a)    either supply her the particulars of the plot allotted to her or to refund her Rs.14,01,000/- alongwith interest @ 12% per annum  from the date of payment till realisation.

(b)    pay her Rs.30,000/- as litigation expenses.

                The case of the complainant is that OP No.1 society invited applications for membership for allotment of residential plots in Sector 113, Mohali.  The complainant applied for membership to OP No.1 for allotment of a plot in the society.   The complainant was issued membership No.181 vide letter dated 13.08.2011. An amount of Rs.21,000/- was paid by the complainant vide receipt dated 24.06.2011 towards membership of the society to OP No.1.  Thereafter the complainant was allotted a plot measuring 200 sq. yards vide allotment letter dated 13.08.2011 and the complainant deposited a total sum of Rs.14,01,000/- on different occasions with OP No.1.  The complainant approached OP No.1 at its site office at Landran for providing her the number of the plot and also inquired about the progress of the work but the OP No.1 failed to provide the number of the plot nor made her aware about the development work at the site. As per the allotment letter, the possession of the plot was to be given within a period of 1½ years  but even after passing of about 4 years nothing has been done by OP No.1.  The complainant vide letter dated 26.05.2013 to OP No.1 sought refund of the deposited amount but inspite of assurance by OP No.1 amount has not been refunded till date. Now OP No.1 has sold the project to OP No.2 without prior consent of the complainant and other members. So OP No.2 is now liable to refund the amount of the complainant. During one of the meetings, signatures of husband of the complainant were taken by OP No.1 on the alleged consent regarding handing over of the society to OP No.2.  Non refund of the amount by OP No.1 and 2, as per the complainant, is an act of deficiency in service and unfair trade practice. Thus with these allegations the complainants have filed the present complaint against the OPs.

2.             OP No.1 in its reply has pleaded in the preliminary objections that the complainant has concealed material facts from this Forum. The complainant has not made the payments on due date as per the schedule due to which the society could not obtain the CLU. The OP No.1 has already obtained letter of intent of CLU to deposit required fee. On merits, it is denied that the complainant paid a sum of Rs.14,22,000/- to the OP No.1 but she has paid a sum of Rs.13,80,000/- as 50% of the amount of the plot and Rs.21,000/- as membership fee which is non refundable. The complainant has not paid the payments on the due dates as per the payment schedule. The total cost of the plot was Rs.27,60,000/- and the complainant has paid only Rs.13,80,000/-. Due to wrongful acts of the members of the society, it went into loss because earlier the legal fee for obtaining CLU was Rs.1,29,00,000/- but now the same has been increased to Rs.2,40,00,000/-. OP No.1 has already handed over the project to OP No.2 and OP No.1 has sent consent letter to the complainant and other members. The meeting was held and majority of the members had given their consent to OP No.1 to handover the project to OP No.2 and MOU dated 15.07.2014 was signed by both the parties and as per clause 1 of the MOU dated 15.07.2014, OP No.1 had transferred all assets, liabilities, payments and members/allottees to OP No.2. Now OP No.2 is dealing with the project of the complainant.  OP No.2 has completed the entire record pertaining to membership, measurement of the land and is in a position to allot the plot to its members after getting CLU and layout plan passed.  As per Para No.9 of the allotment letter the possession of the plot was to be handed over within a period of 1 ½ years from the date of booking after all the dues have been cleared by the allottee but the complainant is in arrears of 50% of the balance amount. Thus denying any deficiency in service on its part, OP No.1 has sought dismissal of the complaint.

3.             OP No.2 in its reply has admitted that the complainant is member of the society and paid a sum of Rs.13,80,000/- as 50% cost of the plot and Rs.21,000/- as membership fee. As per Para No.9 of the allotment letter the possession of the plot was to be handed over within a period of 1 ½ years from the date of booking after all the dues have been cleared by the allottee but the complainant is in arrears of 50% of the balance amount. An amount of Rs.13,80,000/- is still due against the complainant as cost of the plot and a sum of Rs.7,00,000/- as development charges which the complainant is to deposit with OP No.2.  OP No.2 took over the project from OP No.1 on 15.07.2014 and MOU was signed on the same date.  OP No.1 informed all its members including the complainant about the MOU and asked them with their consent. The complainant has not given her consent nor received allotment letter from OP No.2. The complainant is not member of OP No.2 as she has not given the consent to the MOU nor accepted the allotment letter. After taking over the project from OP No.1, OP No.2 has prepared the site plan and completed other formalities. OP No.2 would handover the plot to the members within 20 months from the date of MOU. OP No.2 is ready to handover the possession to the complainant provided she deposit the balance payment of Rs.13,80,000/- as cost of the plot plus Rs.7,00,000/- as development charges with OP No.2. Thus, denying any deficiency in service on its part, OP No.2 has sought dismissal of the complaint.

4.             To succeed in the complaint, the complainant tendered in evidence her affidavit Ex.CW-1/1and Ex.CW-2/1 and copies of documents Ex.C-1 to C-9.

5.             Evidence of OP No.1 consists of affidavit of Varinder Singh, its authorised representative Ex.OP-1/1 and copies of documents Ex.OP-1/2 to Ex.OP-1/3.

6.             Evidence of OP No.2 consists of affidavit of Kanwaljit Singh Ahluwalia, its MD Ex.OP-2/1 and copies of documents Ex.OP-2/2 to Ex.OP-2/9.

7.             We have heard learned counsel for the parties and have also gone through written arguments filed by them.

8.             Admittedly the complainant became members of OP No.1 Society for allotment of 200 sq. Yards in the proposed Sherwood Estate, Sector 113, Mohali. The complainant had paid Rs.21,000/- as membership fee. Thereafter, the complainant was allotted 200 sq. yard plot vide allotment letter Ex. C-1 dated 13.08.2011.  As per Clause-9 of the allotment letter, the possession was to be handed over to the allottee within a period of one and a half year from the date of grant of CLU after all the dues have been cleared by the allottee. As per the complainant, she has made a total payment of Rs.14,01,000/- to OP No.1. As per the complainant, the management of the society was now handed over to OP No.2 with all assets and liabilities of the society.

9.             OP No.1 in its reply has admitted that the CLU has not been granted in its favour at the time of receiving the deposit from the complainant. As per OP No.1 the CLU was already granted in its favour but the same could not be converted into the license because of non payment of CLU charges. Now OP No.2 will get the CLU extension by depositing the fee and the complainant is asked to contribute his share in this regard. The complainant has failed to do so. Further there is no provision of refund in the scheme agreed by the complainant. Therefore, there is no deficiency in service on its part.

10.           OP No.2 has admitted having taken over the affairs of the society from OP No.1 with the consent of majority of members of the society, on as is where is basis.  Thus, OP No.2 has admitted the booking of the 200 sq. yard plot by the complainant and receipt of Rs.14.01 lacs from the complainant as on 13.08.2011 by OP No.1. OP No.2 has admitted the issuance of letter of intent and CLU by GMADA in its favour and further admitted non issuance of license due to non deposit Rs.2,40,00,000/- with the GMADA authorities leading to delay in the project. Therefore, OP No.2 has denied any deficiency in service and rather taken a stand that as per MOU dated 15.07.2014 signed between OP No.1 and 2, OP No.2 is to hand over possession to the members of the society within 20 months from the date of signing of MOU.

11.           The limited question in the whole controversy in the present complaint is whether the complainant is entitled to seek refund of the deposited amount from OPs particularly when the CLU and other permissions were not granted in favour of OP No.1 at the time of accepting the said deposit and further change of guards of affairs of society from OP No.1 to OP No.2 though with the consent of the complainant. Thus, the OP No.2 has stepped into the shoes of the OP No.1. OP No.2 also failed to show any sanctions/approvals in its favour till date.  It is well settled law as has been held by the Hon’ble National Commission  in Kamal Sood Vs. DLF Universal Ltd., 2007 (2) CLT 440  that a builder/developer collecting money from the consumers without having proper and necessary sanctions in its favour from the competent authorities has indulged into unfair trade practice. The facts of the present complaint are squarely covered with the decision of the Hon’ble National Commission. 

12.           Admittedly at the time of accepting deposit of Rs.14.01 lacs as on 13.08.2011, OP No.1 was not having necessary permissions and CLU in its favour as is evident from OP No.1’s own admission in its written statement. Further the consent of the complainant regarding change of guards of OP No.1 in favour of OP No.2 has not been obtained by OP No.1 though the complainant has admitted that in one of the meetings held by OP No.1, OP No.1 has taken the consent of husband for change of guards of affairs of society from OP No.1 to OP No.2. The said consent of the husband of the complainant is not binding on the complainant and, therefore, cannot be construed as valid and legal consent of the complainant.   Thereafter, OP No.2 has failed to take any further steps for development of the project leading to handing over the possession of the property in question to the complainant as per promised schedule of the original allotment letter.   Therefore, loosing all faith in OP No.1 and 2, the complainant has filed the present complaint seeking refund of the deposited amount. Even during the course of proceedings, the OPs have failed to concede to the request of the complainant. Thus, they have indulged into an act of unfair trade practice by withholding the legal property of the complainant without providing any corresponding services and delivery of the promised possession. The complainant is entitled to receive the refund of the deposited money alongwith interest as per decision of Hon’ble Punjab state Consumer Disputes Redressal Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others, 2014(2) CLT 401. Thus, the complaint deserves to be allowed and the complainant deserves to be adequately and fairly compensated. Thus, the complaint deserves to be allowed and the complainant deserves to be compensated.

13.           In view of above discussion, the complaint is allowed. Both OP No.1 and 2 are jointly and severally liable as under:

(a)    to refund to the complainant deposited amount of Rs.14,01,000/- (Rs. Fourteen lacs one thousand only) with interest thereon @ 12% per annum from the dates of respective deposits till actual payment.

(b)    to pay to the complainant a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

April 20, 2016                                          (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                                                                                Member