DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Complaint Case No:78 of 2011]

                                                          Date of Institution : 14.02.2011

                                                           Date of Decision    : 14.06.2011

                                                           -------------------------------------------

Smt. Jai Bala Jain wife of Sh. Joginder Jain resident of House No.283, Jail Nagar, Ropar.

                                                                   ---Complainant.

V E R S U S

Chandigarh Overseas Private Limited, Head Office at SCO No.196-197, Top Floor, Sector 34-A, Chandigarh through its Managing Director.

---Opposite Party.

BEFORE:   SHRI LAKSHMAN SHARMA        PRESIDENT

                SMT. MADHU MUTNEJA            MEMBER

Argued By:Sh. A. S. Walia, Advocate for the complainant.

                   OP already exparte.

PER LAKSHMAN SHARMA, PRESIDENT

                   Smt. Jai Bala Jain has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to :-

i)                   refund Rs.4,75,000/- along with interest @18% per annum;

ii)                 pay a sum Rs.1 Lac as compensation for mental agony, harassment and deficiency in service.

iii)              pay a sum of Rs.10,000/- as costs of litigation.

2.                The case of complainant is that she applied for allotment of units in Design Studio in Industrial Knowledge (Fashion Technology Park), Sector 90 Mohali. The said application was accepted by the OP and it allotted a unit in the Design Studio No.3 in Block A2 on 5^th Floor measuring 100 Sq. Feet in Industrial Knowledge (Fashion Technology Park), Sector 90 Mohali vide allotment letter dated 8.12.2006 (Annexure C-1). A Developer Buyer Agreement (Annexure C-5) was executed between the parties on 21.12.2006 regarding the sale of the said units. The price of the unit was fixed at Rs.5 Lacs. The complainant initially paid Rs.1,25,000/- as earnest money along with the application. Thereafter, she paid Rs.1,25,000/- as allotment money at the time of allotment. Then, she paid Rs.1,25,000/- s 1^st installment and Rs.1,00,000/- as 2^nd installment. Thus, in total, she paid a sum of Rs.4,75,000/- to the OP vide receipts Annexures C-2 to C-4. The remaining Rs.25,000/- was to be paid by her within ten days of the offer of possession. As per the agreement, the possession of the unit was to be given to the complainant on completion of 30 months from the date of commencement of work.

                   It has further been pleaded by the complainant that in view of Clause 5 of the Buyers Agreement (Annexure C-5), a separate Lease Agreement was also entered into between the complainant and M/s. Greenfield Sites Management Private Limited (Lessee). The basic intention of this Lease Agreement was to provide lease transaction management facility to the investors who hae invested in “Small Investor Scheme” launched by the OP in Industrial Zone of Industrial Knowledge (Fashion Technology) Park. Despite the fact that the complainant has already paid the requisite amount of Rs.4,75,000/- as sale consideration of the said unit and now, the period of more than one year has already expired, neither the possession of the said unit has been handed over to her nor the Conveyance/Sale Deed  has been executed. The OP was approached many times for seeking possession but to no effect. Thereafter, the complainant sought refund of the entire amount deposited by him but OP also refused to pay the same.

                   In these circumstances, the present complaint has been filed seeking the reliefs mentioned above.

2.                OP was duly served as per the report of the Process Server but it chose not to appear before the Forum and therefore, OP was ordered to be proceeded against vide order dated 21.03.2011.

4.                We have heard the learned counsel for the complainant and perused the record very carefully.

5.                The averments made in the complaint as reproduced above of the order stands corroborated from the affidavit of the complainant as well as from documents annexed with the complaint. Annexure C-1 is the copy of allotment letter dated 8.12.2006 vide which the said unit was allotted to the complainant. It is also established that the complainant had paid a total sum of Rs.4,75,000/- to the OP towards the sale consideration of the said unit vide receipts (Annexures C-2 to C-4).

6.                Clause 18 of the Developer Buyers Agreement (C-5) reads as under:-

“18. That upon the completion of the Industrial Zone/complex i.e. after the 30 months from the date of start of construction, the Developer herein shall intimate the Buyer(s) by way of a written communication for obtaining the possession and execution of the Conveyance/Sale Deed. As per the written commitment of the Buyer(s) herein since the unit(s) has been let out on Lease, the possession shall be handed over to the M/s Greenfield Sites Management Private Limited or by any other company/firm/individual as the case may be. However, if the Buyer(s) fails to execute the Conveyance/Sale Deed within 90 days of the date of issue of the said notice, the Buyer(s) shall be liable to pay with holding charges equivalent to 50% of the Maintenance Charges for the month and the taxes, levies, out goings and other dues etc. as may be chargeable by the local authority for the period of default.”

7.                A bare reading of the above clause as well as Para 4 of the complaint, it is established that the offer of possession was to be intimated to the buyer by way of written communication after 30 month from the date of start of construction i.e.19.7.2007. Thus, the said period of 30 months expired on 18.1.2010. Thereafter, the Buyer was to get the Conveyance/Sale Deed executed within next 90 days from the date of such intimation/notice. But in the present case, in the absence of any such document showing that the any intimation was sent to the Buyer offering possession of the said unit within the stipulated time, it is proved that OP failed to offer the possession to the complainant within the stipulated period i.e. after 30 months from the date of start of construction.

8.                In these circumstances, keeping in view the fact that the possession has not been delivered so far despite the fact that it was to be delivered after 30 months from the date of start of construction, as per the terms and conditions of the Buyers Agreement, the complainant is entitled for the refund of the amount along with the interest. So, failure/refusal to refund the amount to the complainant amounts to deficiency in service on the part of OP.

9.                In view of the above findings, this complaint is allowed with the following direction to the OP: -

(i)                 to refund an amount of Rs.4,75,000/-  to the complainant along with interest 9% per annum from the date of respective deposits till actual payment.

(ii)              to pay a sum of Rs.7,000/- to the complainant as costs of litigation. 

10.              This order be complied with by the OP within 30 days from the date of receipt of its certified copy, failing which OP shall be liable to refund Rs.4,75,000/-  to the complainant along with penal interest @18% p.a. from the date of respective deposits till its realization besides payment of Rs.7,000/- as costs of litigation.

11.              Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced        

14^th June, 2011

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(MADHU MUTNEJA)

MEMBER

Ad/-

C.C.No.78 of   2011

Present:    None.

                                                          ---

                   The case was reserved on 10.06.2011. As per the detailed order of even date recorded separately, this complaint has been allowed. After compliance file be consigned.

Announced.

17.06.2011               President                          Member