DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.902 of 2017
Date of institution: 27.10.2017 Date of decision : 15.05.2019
Shakuntla Devi wife of Nirmal Kumar, resident of H.No.14, Ward No.19, Sirsa, District Sirsa.
…….Complainant
Versus
Emerging Valley Pvt. Limited having its Corporate Office at SCO No.46-47, Near Matka Chowk, Madhya Marg, Sector 9-D, Chandigarh through its authorised signatory.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri Lokesh Jain, counsel for the complainant.
OP Ex-parte
Order by :- Shri G.K. Dhir, President.
Order
Complainant is having two sons namely Neeraj Kumar and Jitender Kumar and they booked 2BHK apartment with OP by depositing initial amount of Rs.11,000/- on 27.07.2013. An amount of Rs.1.00 lakh further deposited by sons of the complainant in account of OP and the same was duly acknowledged vide receipt dated 26.08.2013. Rs.2.00 lakhs more were deposited by sons of the complainant on 30.10.2013, but another amount of Rs.2,27,000/- on 31.10.2013. Copies of receipts/acknowledgments of above referred amounts alleged to be annexed with the complaint for claiming that sons of complainant had already deposited Rs.5,38,000/-. OP issued provisional allotment letter dated 15.04.2014 in the names of sons of complainant for allotting residential flat of 2 BHK in upcoming project named as Emerging Height 4 at Emerging Valley Landran Banuar Road, Mohali. Basic sale price of that 2 BHK flat was Rs.28,80,000/-. Complainant as well as her sons submitted request with OP in October/November2014 for allotting one bedroom apartment instead of 2 BHK in the name of complainant by adjusting already paid amount of Rs.5,38,000/-. That request of complainant was accepted by issue of provisional allotment letter dated 27.11.2014 for independent one bedroom apartment on first floor having covered area of 380 sq. ft. Basic sale price of this one HK was Rs.9,90,000/-. After allotting this one BHK in the name of complainant, OP did not raise any demand. 5th installment was to be demanded by OP in November/December, 2015, but no such demand ever was raised. Complainant waited about raising of this demand till April, 2016, but said demand not raised. Complainant alongwith her son visited the site, where project was to be developed, but they were stunned to see that no development whatsoever carried on the spot. Rather site was lying in barren condition. Thereafter, request for refund through notice dated 27.04.2016 was submitted, but to no effect. It is claimed that as per knowledge of complainant, OP had not received requisite permissions from various departments for starting the project and as such it is not in a position to hand over possession. By claiming that OP adopted unfair trade practice, this complaint filed for seeking refund of deposited amount of Rs.5,38,000/- with interest @ 12% per annum from the dates of deposit till realisation. Compensation for mental agony and harassment of Rs.2.00 lakhs and litigation expenses of Rs.55,000/- more claimed.
2. In reply submitted by OP, it is pleaded inter alia as if complainant is estopped by her act and conduct from filing complaint; complaint in present form not maintainable; complainant has no locus standi to file the complaint and in view of concealment of material facts, complainant not entitled to claim any relief. It is claimed that complainant applied for the flat i.e. 2 BHK in residential unit by paying a sum of Rs.5,30,000/- in four different installments. Provisional allotment letter dated 15.04.2014 was issued in the name of sons of complainant. Basic sale price of that 2 BHK allotted flat was Rs.28,80,000/-. It is claimed that complainant paid Rs.5,30,000/- being 25% of the sale consideration amount. Matter in question alleged to be civil in nature and as such prayer made for directing complainant to approach civil court. Complaint alleged to be filed by leveling false allegations for pressurizing OP. Complainant signed the agreement after reading and understanding contents thereof and as such she is bound by terms thereof. Though OP tried its best to complete the project within time, but same could not be completed on account of reasons beyond control of OP. It is claimed that now project is complete. As per Clause 7 (1) of agreement, OP Company entitled to extend period reasonably for handing over of possession. There is no fault on part of OP and as such by denying other averments of the complaint, prayer made for dismissal of the complaint. Additionally it is claimed that complainant failed to make whole payment of price of 2 BHK apartment and as such on request of complainant, the amount paid by her was adjusted towards one BHK apartment allotted through provisional allotment letter dated 27.11.2014.
3. Counsel for the complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-7 and then closed evidence. On the other hand no evidence produced by OP and none turned up for it and as such OP was proceeded against ex-parte vide order dated 28.11.2018.
4. Written arguments not submitted. Oral arguments heard and records gone through.
5. Complainant claims to have deposited Rs.5,38,000/- through receipts Ex.C-1 to Ex.C-4, but these receipts show payment of amount of Rs.11,000/-; Rs.1,00,000/-; Rs.2,00,000/- and Rs.2,27,000/- by Neeraj Verma and Jitender Verma on dates 27.07.2013, 26.08.2013, 30.10.2013 and 31.10.2013. On account of payment made by these Neeraj Verma and Jitender Verma, provisional allotment letter dated 15.04.2014 Ex.C-5 regarding 2 BHK residential flat was issued in their names. As per claim of complainant, this paid amount of Rs.5,38,000/- stood adjusted subsequently, while issuing provisional allotment letter dated 27.11.2014 (Ex.C-6) in favour of complainant Shakuntla Devi regarding allotment of 1 BHK First Floor having covered area of 380 sq. ft. It is also the case of OP put forth through reply that an amount of Rs.5,30,000/- has been paid by complainant, but in view of request of complainant, said amount of Rs.5,30,000/- paid for allotment of 2 BHK apartment was subsequently adjusted towards price payable for one BHK regarding which provisional allotment letter dated 27.11.2014 was issued in favour of complainant. That provisional allotment letter dated 27.11.2014 in the name of complainant is produced as Ex.C-6. No reference to adjustment of earlier paid amount of Rs.5,38,000/- by sons of complainant towards price of one BHK allotted in favour of complainant made in Ex.C-6 at all. Complainant not produced any material to show such adjustment. However, claim of OP is that complainant herself deposited Rs.5,30,000/- in four installments and the said amount subsequently adjusted towards price of one BHK in respect of which provisional allotment letter Ex.C-6 was issued. Admission binds a party and as such in view of admission contained in written reply of OP, it has to be held that OP acknowledged having received Rs.5,30,000/- from complainant. As the project in question has not come in existence, but the site on which project to be developed is lying as barren land and as such certainly complainant entitled for refund of deposited amount with interest @ 12% per annum from the date of acknowledgement of received amount through provisional allotment letter Ex.C-6 dated 27.11.2014. Complainant also suffered from mental agony and harassment and stood dragged to this litigation due to inaction of OP in not seeking requisite approvals/sanctions from competent authorities and as such complainant entitled to compensation for mental agony and harassment and also to litigation expenses. To ensure that payment of amount of compensation and litigation expenses made within specific period, it is ordered that in case these payments not made in specified time, the complainant will be entitled to interest @ 7% per annum from today onwards till payment.
6. As a sequel of above discussion, complaint allowed with direction to OP to refund received amount of Rs.5,30,000/- (as admitted in Para No.5 of the written reply under head preliminary objection) with interest @ 12% per annum w.e.f. 27.11.2014 (issue of provisional allotment letter Ex.C-6) till payment. Compensation for mental agony and harassment of Rs.25,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against OP. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order, failing which complainant will be entitled to interest @ 7% per annum on the amount of compensation and litigation expenses from today onward till payment. Certified copies be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
May 15, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
