BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.647 of 2014
Date of institution: 07.11.2014
Date of Decision: 29.05.2015
Viney Mittal son of Naresh Mittal, resident of 362-A Roop Nagar Colony, Jagadhary, Yamunanagar, Haryana.
……..Complainant
Versus
1. Chandigarh Royal City Promoters Pvt. Ltd., Main Gate Royale City, Zirakpur Ambala Highway Zirakpur, District SAS Nagar (Mohali).
2nd Address:
Chandigarh Royal City Promoters Pvt. Ltd., Zirakpur Patiala Highway VPO Karala, District SAS Nagar (Mohali).
2. Bhoomi Associates through Manager, SCF No.111, Grain Market, Sector 26, Chandigarh.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh, Member
Mrs. R.K. Aulakh, Member.
Present: Complainant in person with counsel Shri Narender Singh,
Shri Anish Garg, counsel for OP No.1.
Shri Sandeep Bhardwaj, counsel for OP No.2
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Party (for short ‘the OP’):
(a) to refund him Rs.5,34,000/- with interest @ 18% per annum.
(b) to pay him Rs.40,000/- as compensation for mental agony and harassment.
(c) to pay him Rs.20,000/- for litigation expenses.
The complainant’s case is that he booked a 200 sq. yards plot with the OP under Plan-C by depositing Rs.5,34,000/- being 20% of the total consideration of the plot. At the time of booking the complainant was employed in ION Exchange India Ltd. at Chandigarh. He was expelled from the job in November, 2012. Due to financial problem he requested the OPs to cancel his booking and refund the deposited amount. The OPs assured him that the amount would be refused at the earliest. On 06.08.2014 the OPs refused to refund him the amount. The complainant sent legal notice dated 01.10.2014 but the till date the OPs have not refunded him the deposited amount. Thus, non refund of the amount is an act of deficiency in service on the part of the OPs.
2. OP No.1 in the written statement has pleaded in the preliminary objections that the complainant has no locus standi to file the complaint. The document Ex.C-2 has never been issued and executed between the OP No.1 and the complainant. OP No.1 has no concern with OP No.2 who is a dealer firm working at his own. The complainant has not attached copy of the receipts vide which he has made the payment to the OP No.1. The complainant has never entered with OP No.1 for any kind of sale purchase. The complainant approached OP No.2 and booked the plot as alleged by him and also himself admitted that he is unable to pay the balance amount. The complainant became defaulter and being defaulter he is not entitled for any refund of money. As per Para 6 of Ex.C-2 in case of demand of refund of the payment the deduction of 20% of the total amount will be done. As per this clause the whole amount of Rs.5,34,000/- is liable to be forfeited or deducted because the complainant himself failed to full the terms and condition agreed with OP No.2. The complaint is barred by limitation and is liable to be dismissed as the last payment was made by him on 10.09.2012. Thus, denying any deficiency in service on its part, OP No.1 has sought dismissal of the complaint.
3. OP No.2 has pleaded in the preliminary objections that the complainant is not consumer qua OP No.2; the complaint is a concocted story created with malafide intention; the complaint is abuse of process of law; the complaint is not within the territorial and pecuniary jurisdiction of the Forum. On merits, it is pleaded that no consideration has been paid and received by the complainant to OP No.2. The complainant never approached OP No.2 nor was any legal notice received by it from the complainant. Thus, OP No.2 has also sought dismissal of the complaint against it.
4. Evidence of the complainant consists of his affidavit Ex.CW-1/1; copies of documents Ex.C-1 to C-5.
5. Evidence of OP No.1 consists of affidavit of Anup Kumar Sharma, Site officer Ex.OP-1/1 and copy of resolution Ex.OP-1/2.
6. Evidence of OP No.2 consists of affidavit of Ashish Mittal, its authorized representative Ex.OP-2/1.
7. We have heard learned counsel for the parties and have gone through their written arguments.
8. Admittedly the complainant has booked the residential plot of 200 sq. yards vide application dated 14.08.2012 Ex.C-2 and alongwith the application the complainant has deposited total sum of Rs.5,34,000/- on various dates i.e. 14.08.2012, 25.08.2012 and 10.09.2012. The said amount is 20% of the total agreed consideration. 75% was to be paid as per Plan-C opted by the complainant and the balance 5% at the time of possession. The booking and payment is not disputed. As per terms and conditions of the application the applicant/complainant was at liberty to withdraw the application before or after the offer of allotment. However, the withdrawal was subject to deduction of 20% of the registration deposit. The case of the complainant is that he has deposited the initial amount but was unable to arrange funds for payment of balance sale consideration as per Plan-C adopted by him. Therefore, due to his inability to raise the funds he has moved an application dated 12.09.2013 Ex.C-1 to walk out from the scheme with the request to cancel the booking and refund the amount of Rs.5,34,000/-. The said request despite having been followed by the legal notice has not been responded to by the Ops and, therefore, the complainant has alleged deficiency in service and unfair trade practice on the part of the OPs.
9. The OPs have admitted the receipt of the aforesaid amount. However, their reply and evidence is quite silent about the reasons of withholding the said amount and not refunded the same to the complainant till date. As per the OPs since the complainant has not paid the balance 75% amount and, therefore, he is not entitled to refund of the booking amount. Such a plea of the OPs is of no help to them particularly when the OPs have not brought anything contrary to the request of the complainant seeking refund vide Ex.C-1.
10. The complainant is well within his rights as per Clause-4 of application Ex.C-2 to withdraw from the scheme before or after the offer of allotment. Admittedly the OPs have never given any offer of allotment to the complainant and the complainant has rightly invoked his right of withdrawal from the scheme vide Ex.C-1. The act of the OPs in not refunding the deposited amount giving rise to the present litigation is an act of deficiency in service and unfair trade practice which is writ large on their part.
11. In fact the OPs should have refunded the deposited amount after deduction of 20% immediately after receipt of representation Ex.C-1 dated 12.09.2013. By not doing so the complainant has been put to mental agony and harassment and financial loss. Thus the act of the OPs is deficiency in service and unfair trade practice. During the course of proceedings, the parties were given opportunity to compromise the issue. However, the same could not be effected. Thus the conduct of the OPs during the course of proceedings further strengthen the grouse of the complainant against them. Hence, the complaint deserves to be allowed and the complainant deserves to be compensated.
12. Therefore, the complaint is allowed with the following directions to the OPs:
(a) to refund the deposited amount after deduction of 20% of the deposited amount and to pay interest @ 12% per annum on the deposited amount of Rs.5,34,000/- with effect from the dates of respective deposits.
(b) to pay a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.
Compliance of the aforesaid directions be made by the OPs within a period of thirty day 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.
May 29 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
