DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.435 of 2015
Date of institution: 28.08.2015 Date of decision : 27.09.2016
Dr. Mukesh Gaba son of Ram Lal Gaba, resident of House No.3227, Sector 44-D, Chandigarh.
……..Complainant
Versus
Country Colonisers Pvt. Ltd. having its site office in Sector 85, Mohali, Tehsil and District Mohali.
2nd Address: Country Colonisers Pvt. Ltd., Post Office, Rayan and Silk Mills, adjoining Coca Cola Depot, G.T. Road, Chheharta, Amritsar, Punjab.
3rd Address: Country Colonisers Pvt. Ltd., 60 Friends Colony, East, New Delhi.
………. Opposite Party
Complaint under Sections 12 to 14
of the Consumer Protection Act
Quorum
Shri Ajit Pal Singh Rajput, President
Mrs. R.K. Aulakh, Member.
Present: Shri R.K. Sharma, counsel for the complainant.
Shri Tejeshwar Singh, counsel for OP.
ORDER
By Ajit Pal Singh Rajput, President
Complainant, Dr. Mukesh Gaba son of Ram Lal Gaba, resident of House No.3227, Sector 44-D, Chandigarh, has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant alongwith his wife Smt. Pooja applied for allotment of Ground Floor Unit No.24 of 200 sq. yards in the project namely ‘Wave Floors’ of the OP through Monga Realtors Pvt. Ltd., Mohali through application dated 30.01.2013. A sum of Rs.3.00 lacs was also deposited with the OP vide cheque No.712130, of the account of Smt. Pooja wife of the complainant and receipt dated 05.02.2013 was issued by the OP. The OP issued notice dated 20.02.2013 demanding an amount of Rs.3,49,467/- from the complainant on or before 22.03.2013. The complainant paid Rs.2.00 lacs and Rs.1,49,467/- vide cheque dated 23.03.2013 and dated 27.04.2013 receipts whereof were issued by the OP. Smt. Pooja wife of the complainant requested the OP vide affidavit dated 04.06.2013 to delete her name as co-applicant and similar affidavit dated 04.06.2013 was also submitted by the complainant for deletion of name of Smt. Pooja. The complainant then submitted application on 04.06.2013 for provisional allotment of independent residential floor. The basic sale price of the independent residential floor was fixed as Rs.42.00 lacs. The complainant applied for housing loan to Housing Development Finance Corporation Ltd., Panchkula and loan of Rs.33,60,000/- was approved with interest @ 10.50% per annum. The loan was to be payable in 20 years with monthly installment of Rs.33,546/-. Thereafter, the OP asked the complainant to execute Independent Residential Floor Allottee Arrangement dated 07.04.2015. On going through the contents of the arrangement the complainant found that the OP has put arbitrary terms and conditions which were beyond the expectations of a reasonable allottee. As per the provisional allotment dated 04.06.2013 the price was fixed at Rs.42.00 lacs whereas in the Arrangement Agreement it was fixed at Rs.53,08,000/- @ Rs.3952.35 per sq. ft for the saleable area and further unilateral and unexpected riders were imposed to pay various other charges of maintenance etc. The OP had not given any notice or information to the complainant prior to April, 2015 regarding changing of terms and conditions. The OP sent another tripartite agreement in April, 2015 to be executed amongst the complainant, the OP and the Housing Development Finance Corporation Ltd. The complainant did not sign the document and wrote a letter dated 11.05.2015 to refund the amount due to his inability to comply with the arbitrary and unreasonable demands, terms and conditions imposed by the OP which were changed without consent of the complainant. The OP vide reply dated 30.06.2015 informed that there is no provision for cancellation of booking and refund of amount and refused to refund the amount. Hence this complaint for giving directions to the OP to refund him Rs.6,49,467/- alongwith interest @ 18% per annum from the respective date of deposit till realisation; to pay him compensation to the tune of Rs.5.00 lacs for mental agony and harassment.
3. The complaint is contested by the OP by filing written statement in which it had raised certain preliminary objections, inter alia, that the complainant does not fall within the definition of ‘consumer’ as defined under Section 2 (1) (d) (i) of the Consumer Protection Act as he had bought the premises for commercial purposes. The complainant applied for Unit No.24 vide Expression of Interest and application for provisional allotment which is a unit of area of 252.9 sq. yards, having BSP of Rs.53,08,000/-. However, the complainant himself wrote 200 sq. yards as area and Rs.42.00 lacs as price of the said plot in the EOI and application. The EOI does not have signature of the OP anywhere. However, an application for the OP has merely received application for provisional allotment. The complainant has failed to execute the ‘Independent Residential Floor’ Allottee Arrangement/Agreement within the stipulated time and has failed to pay the due amounts as per payment plan opted by him. The representative of the OP has inadvertently sent a demand notice dated 20.02.2013 wherein the area of unit No.24 was mentioned as 1060 sq. ft. due to confusion with EOI and application for provisional allotment. However, Unit No.24 cannot be allotted at a BSP of Rs.42,00,000/- as the same is not of an area of 200 sq. yards but of 252.9 sq. yards. On merits, the OP has denied that it never instructed the complainant to move any application and the Application for Provisional Allotment was moved by the complainant on his own volition. Clause E of the application clearly mentions that the complainant ‘understands that this application form does not constitute any offer or definite allotment or any agreement to sell and the complainant do not become entitled to provisional and/or final allotment of an independent residential floor’. The OP did not put any arbitrary terms and conditions in the Independent Residential Floor Allottee Agreement. The monthly installment pertaining to unit of an area of 252.9 sq. yards was mentioned in the tri-partite agreement. The project had been duly approved by PUDA. The OP never made any misrepresentations to the complainant. The complainant was fully aware that the unit being allotted to him was of 252.9 sq. yards and the BSP of it was Rs.53,08,000/-. The OP is not at fault and is not liable to refund any amount paid by the complainant. Thus, the OP has sought dismissal of the complaint.
4. In order to prove the case, the complainant tendered in evidence his affidavit Ex. CW-1/1; copies of EOI Ex.C-1; cheque dated 28.01.2013 Ex.C-2; receipt dated 05.02.2013 Ex.C-3; demand notice Ex.C-4; receipt dated 23.03.2013 and 30.04.2013 Ex.C-5 & C-6; affidavits Ex.C-7 and Ex.C-8; application for provisional allotment Ex.C-9; letter dated 11.11.2013 Ex.C-10; letter from the OP Ex.C-11; Allottee Arrangement Ex.C-12; Tripartite agreement Ex.C-12; letter alongwith postal receipt Ex.C-13 and certificate of registration dated 09.06.2000 Ex.C-14. In rebuttal the OP tendered in evidence affidavit Yadvinder Singh Bains, its President Ex.OP-1/1 and approval of lay out plan Ex.OP-2.
5. The learned counsel for the complainant has argued that the on the application of the complainant and his wife Smt. Pooja residential floor bearing No.24 Ground Floor having saleable area of 1060 sq. ft. comprising ground plus two floor constructed on a plot having area of 200 sq. yards at Sector 85 and 89, Mohali was allotted. Thereafter, on the affidavits dated 04.06.2013 of the complainant and his wife, the name of his wife was deleted as co-applicant of the floor in question. Thereafter, the complainant got sanctioned loan of Rs.33,60,000/- for paying the sale price of the floor. However, the terms and conditions mentioned in the Independent Floor Allottee Arrangement dated 07.04.2015, which was offered to the complainant by the OP, were beyond his expectations as the OP had demanded the higher price and other charges which were not disclosed in the application. The complainant refused to sign the aforesaid Allottee Arrangement and sought refund of the amount which the OP has not refunded till date. The learned counsel for the complainant has argued that the complainant deserves to be compensated due to the deficient act of the OP.
6. Before addressing his arguments on merits of the complaint, learned counsel for the OP has very fairly made a submission that the OP is ready to refund the amount of Rs.6,49,467/- to the complainant. The learned counsel pleaded that the representative of the OP had inadvertently sent a demand notice dated 20.02.2013, wherein the area of unit No.24 was mentioned as 1060 sq. ft. due to confusion with EOI and application for provisional allotment. He further pleaded that the Unit No.24 cannot be allotted at a BSP of Rs.42,00,000/- as the same is not of an area of 200 sq. yards but of 252.9 sq. yards. Learned counsel argued that the OP is ready and willing to refund the payment received. He further argued that the complainant was willing to accept the offer of refund subject to payment of compensation of Rs.5.00 lacs on account of mental agony and harassment besides litigation expenses.
7. After hearing the learned counsel for the parties and after going through the pleadings, evidence and written as well as oral submission. In our opinion, the OP has admitted its mistake and is ready to refund the amount to the complainant, in order to resolve the dispute between the parties. It is established from the pleadings of the OP that the mistake had been committed inadvertently by the representative of the OP. However, in our view, in the interest of justice, the complainant is also entitled for mental agony and harassment alongwith litigation expenses.
8. Accordingly, we direct the OP to refund the deposited amount of Rs.6,49,467/- (Rs. Six lacs forty nine thousand four hundred sixty seven only) alongwith interest @ 8% per annum from the respective dates of deposit to the complainant till its actual realisation. We also find that the complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony caused to the complainant due to negligent act of the OP alongwith litigation cost of Rs.5000/- (Rs. Five thousand only). The present complaint stands partly allowed accordingly.
The OP is further directed to comply with the order of this Forum within 45 days from the date of receipt of this order.
The arguments on the complaint were heard on 20.09.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 27.09.2016
(A.P.S.Rajput) President
(Mrs. R.K. Aulakh)
Member
