Punjab

Fatehgarh Sahib

CC/56/2016

Suresh Kumar - Complainant(s)

Versus

Emerging Valley P ltd - Opp.Party(s)

Sh. Sant Partap Singh

18 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                             Consumer Complaint No.56 of 2016

                                                          Date of institution:  26.05.2016       

                                                                                        09.02.2018        

 

                                                          Date of decision   :  18.04.2018

Suresh Kumar, aged about 56 years, son of late Sh. Anand Parkash, resident of House No.199, Professor Colony, Street No.1, Sirhind, Tehsil and District Fatehgarh Sahib.

……..Complainant

Versus

1. Emerging Vally(P) Limited, Registered Office at SCO 46-47, Ist Floor, Sector 9-D, Madhya Marg, Matka Chowk, Chandigarh through its Director Gurpreet Singh Sidhu.
2. Emerging Valley(P) Limited, having its working office at Shop No.40, opposite Baba Banda Singh Bahadur Engineering College, Fatehgarh Sahib through its Area Sales Manager Anil Kumar Sood.
3. Satish Kumar Sharma son of Sh. Surinder Kumar Sharma, resident of Mansoori Tibba, Sirhind City, Tehsil and District Fatehgarh Sahib, active worker and broker of Emerging Valley(P) Limited.

         …..Opposite parties       

Complaint Under Sections  11 to 14 of the Consumer Protection Act

Quorum

Sh. Ajit Pal Singh Rajput, President                                     

  Sh. Inder Jit, Member     

 

Present :      Sh.Santpartap Singh, Adv.Cl. for the complainant.                                  

                      Opposite parties No.1 to 3 exparte.

ORDER

By Ajit Pal Singh Rajput, President

The present complaint has been remanded back by the Hon’ble State Commission, with the direction to decide the same, on merits as this Forum has territorial jurisdiction to decide the same. The present Complaint was filed by Suresh Kumar, aged about 56 years, son of late Sh. Anand Parkash, resident of House No.199, Professor Colony, Street No.1, Sirhind, Tehsil and District Fatehgarh Sahib, against the Opposite parties (hereinafter referred to as “the OPs”) under Sections 11 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.                In order to sell a residential flat in the colony constructed by OP No.1 under the name 'Trinity Home', OP No. 2 & 3 contacted the complainant and convinced him to purchase a residential flat of 2 BK( 610 square feet) at first floor. The total cost of the said flat was Rs.13,40,000/- and after deducting the discount of Rs.1,80,000/-, the actual cost of the flat was Rs.11,60,000/-. The complainant deposited Rs.7,60,000/-for purchasing flat No. TRI-155 FF under the instructions of the OPs, vide cheque No.421972 dated 03.01.2013 and a receipt No.0430 dated 24.01.2013 was issued by the OPs for the same. The remaining amount of Rs.4,00,000/- was to be paid by the complainant at the time of execution and registration of the sale deed in respect of the said flat. Thereafter, the complainant requested the OPs a number of times to execute the agreement in respect of the said flat in favour of the complainant but to no effect.  Despite repeated requests, the OPs failed to complete the construction work of flat at the spot and the matter is being delayed on one pretext or the other. However only sample flat had been partly constructed at the spot.  The complainant also visited the spot in order to see the status of his flat and he was shocked to note that the OPs are constructing third floor over the said building without the consent and knowledge of the complainant, whereas it was told that the building would be built upto 2^nd floor only and there would be no 3^rd floor. It is further stated that very cheap and substandard material has been used in raising construction of the said Flats. The OPs under greed have started construction of third floor/storey, which is against the approved specification and is also unfit and dangerous for human habitation. Due to said act and conduct of the OPs, the complainant does not want to purchase the said flat from the OPs. The complainant requested the OPs a number of times to refund the said amount paid by the complainant but to no effect.  There is a gross negligence, carelessness, unfair trade practice and deficiency in service on the part of the OPs. Hence, this complaint for giving directions to the OPs to refund an amount of Rs.7,60,000/- as earnest money along with interest and Rs.2,00,000/- as compensation on account of mental tension, pain, agony and harassment suffered by the complainant.

3.                The complaint was contested by the OPs, who filed joint written reply. In reply to the complaint, OPs raised certain preliminary objections, inter alia, that this Forum has got no jurisdiction at all to try and decided the present complaint. The complainant has no locus standi or cause of action to file the present complaint. The complainant has not come to this Forum with clean hands and has suppressed the true and material facts. The present complaint is false fictitious, wrong, vexatious, vague, baseless and frivolous and  the complaint is not maintainable in its present form. As regards the merits of the complaint, the OPs stated that the complainant himself approached OP No.1 at its office at Chandigarh in order to purchase a flat of 2 BK(610 Square feet) at first floor and the total cost of the said flat was Rs.13,40,000/- and out of this amount, a discount of Rs.1,80,000/- was given to the complainant and after discount, the cost of the flat came out to be Rs.11,60,000/- subject to the condition that the complainant was to pay the balance amount of Rs.4,00,000/- before 28.02.2013 in order to avail the special discount. The complainant agreed to do so and vide receipt No.0430 dated 24.01.2013 the complainant deposited an amount of Rs.7,60,000/- through cheque.  The rest of the amount was payable by the complainant before 28.02.2013. The complainant was requested a number of times to deposit the remaining amount of Rs.4,00,000/- on or before 28.02.2013, but he failed to deposit the amount and has himself breached the terms and conditions of the contract. Therefore, the complainant is neither entitled to any discount of Rs.1,80,000/- nor entitled to recover any amount from the OPs. It was further stated that the construction of flats is in progress at the spot. No such matter is being delayed on any pretext, as alleged.  The agreement executed with the complainant was provisional one and the company reserves its right to make suitable changes in the structure.  OP No.1 has started delivering possessions of the flats to its customers and further construction is going on at the spot.  The company/OP is still ready and willing to deliver the possession of the flat to the complainant subject to the condition that he deposits an amount of Rs.5,80,000/- in the name of the company with penal interest.  There is no negligence, carelessness, unfair trade practice and deficiency in service on the part of the OPs. After denying the other averments made in the complaint, the OPs prayed for dismissal of the complaint. 

4.                In order to prove his case, the complainant tendered in evidence his affidavit Ex. C-1, notarized copies of documents i.e. receipt Ex. C-2, provisional order dated 24.01.2013 Ex. C-3, terms and conditions Ex. C-4, payment schedule Ex. C-5, copy of legal notice Ex. C-6, true copy of brochure Ex. C-7, affidavit of Krishan Kumar Ex. C-8, affidavit of Kulwant Singh Ex. C-9, affidavit of Kuldeep Singh Ex. C-10 and closed the evidence. In rebuttal the OPs tendered in evidence affidavit of Satish Kumar Sharma Ex. OP-1/A, copies of documents Ex. OP-1 to Ex. OP-6 and closed the evidence.

5.                The learned counsel for the complainant has vehemently contended  that  the OPs agreed to sell  one 2 BK  (610 sq. ft.) flat for a total consideration of Rs.11,60,000/-. Learned counsel has submitted that the actual price of the flat was 13,40,000/- and a sum of Rs. 1,80,000 was offered as discount and complainant  has paid a total sum of Rs.7,60,000/- to the OPs as per the terms and conditions Ex.C-4. Learned counsel for the complainant has also argued that the complainant visited the OPs number of times but no satisfactory reply regarding handing over of the possession of the apartment/flat was given to him rather the OPs had been extending the date of possession on one pretext or the other and had started using sub-standard building material. Learned counsel for complainant also cited the report of the Local Commissioner filed in this Forum on 15.12.2016, which speaks volumes of shabby construction activity as for example there is no doors/windows, no grills, no electricity connection, incomplete bathrooms etc. Learned counsel has thus prayed that as there is no proper construction activity taking place at the site, the amount deposited by the complainant may be got refunded alongwith interest and compensation for mental agony, harassment besides costs of litigation. 

7.       On the other hand, OPs preferred not to appear and contest the case despite date fixed i.e.12.02.2018 by the Hon’ble State Commission and despite opportunity given by this Forum also. Learned counsel for the OPs has stated in their reply that the OPs are ready and willing to hand over the possession, subject to remaining payment to be deposited by the complainant. He has prayed for dismissal of the present complainant being frivolous. 

8.               We have gone through the pleadings, evidence and written arguments of the parties on the file and heard the oral submissions addressed by the learned counsel for the complainant. We find that in the present case, the complainant had paid Rs.7,60,000/-  to the OPs towards the sale consideration of the flat/apartment. As per the terms and agreement contained in Ex.C-4, the possession of the flat/apartment was to be handed over to the complainants within three years after allotment, which was extended by the OPs on one pretext or the other.  The complainant has stated that there is no development at the site and has produced affidavits of Krishan Kumar (Ex.C-8), Kulwant Singh  (Ex.C-9) and Kuldeep Singh (Ex.C-10) in support of his contention. The OPs have not been able to produce any record to prove that the construction work is complete and they had offered the possession to the complainant before the stipulated date. Thus, the complainant is entitled to receive back the deposited amount alongwith interest. The OPs have failed to appear and contest the case after remand, so the submission which go un-rebutted have to be accepted. The submission of the complainant is supported by the judgment of The Hon’ble State Consumer Disputes Redressal Commission in Ms. Sneh Sood Vs. M/s. Bajwa Developers Ltd. in Consumer Complaint No.240 of 2016 decided on 23.02.2017 wherein it has been observed "refund of the deposited amount of the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund".

9.                Accordingly, in view of our aforesaid discussion and decision of Hon’ble State Commission, Punjab, we direct the OPs to refund the deposited amount of Rs.7,60,000/   (Rs. Seven Lakhs Sixty Thousand only) to the complainant alongwith interest @ 12% per annum from the date of deposit of amount till the date of actual refund. We also find that complainant is entitled to a sum of Rs.10,000/- (Rs. Ten thousand only) on account of mental agony due to the negligent act of the OPs and litigation cost of Rs.5,000/-  (Rs. Five thousand only). The present complaint stands allowed accordingly.   

10.              The OPs are further directed to comply with the order of this Forum within 30 days from the date of receipt of copy of this order, failing which the amount of compensation awarded shall carry interest at the rate of 12% per annum from the date of this order till realization.

Pronounced

Dated:-18.04.2018

(A.P.S.Rajput)                        

President

 

(Inder Jit)                      

Member