DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                       Consumer Complaint No.484 of 2015

                                                                  Date of institution:  18.09.2015                                                            Date of decision   :  09.08.2016

Akash Verma son of Shri S.P. Verma, represented through his father, authorised representative Shri S.P. Verma son of Late Shri Ram Rakha Verma, resident of House No.910, Sector-8, Panchkula- 134108 (Haryana).

……..Complainant

Versus

1.       Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar (Pb.) through its Estate Officer.

2.       Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar (Pb.) through its Chief Administrator.

…..Opposite parties

Complaint under Sections 12 to 14 of the Consumer Protection Act

Quorum

Sh. Ajit Pal Singh Rajput, President                                           Sh. Amrinder Singh Sidhu, Member                                            Mrs. R.K. Aulakh, Member.

Present :      Sh. D.P. Chhachhia,  Adv.Cl. for the complainant.                                        None for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                   Complainant, Akash Verma through his father and authorised representative Shri S.P. Verma son of Late Shri Ram Rakha Verma, resident of House No.910, Sector-8, Panchkula, has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.                The OPs had invited applications for allotment of 4500 Premium Apartments in Sector-88, Mohali by issuing advertisements in leading newspapers. After going through the terms and conditions of the brochure given with the application form, the complainant applied for allotment of a residential apartment Type 3 in the Punjab Premium Apartments in General Category at Sector 88, SAS Nagar vide application Form No.47503. The OPs vide letter dated 23.03.2012 had informed the complainant being successful in the draw held on 20.03.2012. The complainant was asked to submit documents before 23.04.2012, as prescribed at Page 5 & 6 in the brochure of the scheme. The complainant had sent the required documents to the OPs within time.  Thereafter, the OPs vide Letter of Intent (LOI) dated 22.,05.2012 intimated  to the complainant that a Residential Apartment Type 3 in Punjab Premium Apartments in General Category at Sector-88, SAS Nagar had been allotted at a tentative price of Rs.69,00,000/- subject to various conditions.  On receipt of letter dated 22.05.2012, the complainant sent acceptance thereof alongwith demand draft of Rs.13,80,000/- being 20% price of the apartment. The complainant had opted Plan-B of terms and conditions No.2 under Head Payment Scheme under which the complainant made 65% of the tentative price amounting to Rs.44,85,000/- with interest @ 12% in six half yearly installments from the date of issue of LOI. The complainant had paid a total sum of Rs.74,96,850/- being 95% of the total cost of the residential apartment with the OPs after getting it financed from the bank.  The OPs were to deliver possession of the apartment within 36 months from the date of issuance of LOI i.e. by 22.05.2015.  After expiry of 36 months the complainant came to know that the OPs were not in a position to deliver the possession and more time will be taken by the OPs for the same.  The complainant is paying interest on loan to the bank.  As the OPs failed to deliver possession as per condition No. 3 (II) of the LOI,  the complainant vide letter dated 25.05.2015 requested the OPs for refund of the deposited amount alongwith interest @ 8% annually,  as he is not interested in waiting further for possession of the apartment. The OPs vide office order dated 05.08.2015 cancelled the allotment and granted permission to refund the amount.  Accordingly, the OPs refunded an amount of Rs.75,95,314/- after deducting TDS of Rs.13,310/-, through cheque dated 12.08.2015 which was received by the complainant ‘under protest’ on 12.08.2015. The OPs have refunded less amount as interest @ 8% on the deposited amount has been calculated after expiry of 36 months which is illegal as per terms and conditions of LOI. The OPs have also deducted Rs.21,321/- towards service charges which is also illegal as no service has been provided by the OPs to the complainant. Deduction of Rs.13,310/- towards TDS on the payment of interest is also illegal as interest is part of compensation and is not income to the complainant.  The OPs were to refund Rs.74,96,850/- alongwith interest @ 8% compounded annually from the date of deposits and not from the expiry of 36 months without any kind of deductions.  The act and conduct of the OPs shows clear cut unfair trade practice and deficiency in service on their part. Hence this complaint for giving directions to the OPs to make the balance amount of interest @ 8% compounded annually from the date of deposit of Rs.74,96,850/-; to refund Rs.21,321/- alongwith interest deducted on account of service tax; to refund a sum of Rs.13,310/- alongwith interest deducted on account of TDS; to pay an amount of Rs.1,00,000/-  on account of deficiency in service; to pay Rs.1,50,000/- as compensation for mental agony and physical harassment suffered by the complainant and to pay Rs.22,000/- on account of litigation expenses.

3.                Notices to the OPs were duly served on 02.11.2015.  However, the OPs failed to submit written reply to the complainant within stipulated period of 45 days. Therefore, in view of the law laid down by the Hon’ble Supreme Court of India on 04.12.2015 in case titled as New India Assurance Co. Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd.,  the complaint was proceeded further and the matter was posted for evidence of the complainant vide order dated 17.12.2015.

4.                In order to prove the case, the complainant tendered in evidence his affidavit Ex. CW-1/1, copies of newspaper cutting Mark-A, brochure Ex.C-1, letter dated 23.03.2012 Ex.C-2; LOI dated 22.05.2012 Ex.C-3; request letter for refund Ex.C-4; order dated 05.08.2015 of the OPs Ex.C-5; cheque dated 12.08.2015 Ex.C-6; e-mails Ex.C-7 and power of attorney Ex.C-8 and closed the evidence. The OPs did not lead any rebuttal evidence.

5.                The ld. counsel for the complainant has submitted that the main controversy involved in the present case is, that as per Condition No.3(II) of the letter of Intent i.e Ex.C-3,the same is reproduced below:

                   “3. Ownership and Possession:

                   (II)     Possession of apartment shall be handed over after completion of development works at site in a period of 36 months from the date of issuance of Letter of Intent. In case for any reason, the Authority is unable to deliver the possession of apartments within stipulated period, allottee shall have the right to withdraw from the scheme by moving an application to the Estate Officer, in which case, the Authority shall refund the entire amount deposited by the applicant along with 8% interest compounded annually.”

 6.               The complainant was entitled to withdraw from the scheme and claim the refund of the payments deposited by the complainant from time to time. The ld. counsel stated that the complainant had deposited a sum of Rs.74,96,850/- and the OPs had only paid interest for a period of 67 days amounting to Rs.1,33,095/-, thereby the OPs deducted Taxes amounting to Rs.21,321/-. The ld. counsel pleaded that the complainant received a sum of Rs.76,08,624/- under protest from the OPs. The ld. counsel also pleaded that the interest paid and the tax deductions are illegal and against the principal of natural justice. He argued that the complainant was entitled to receive the interest from the date of the deposits made by the complainant, as due to the deficiency of service on the part of the OPs the complainant was forced to withdraw from the said scheme. The ld. counsel also argued that the said amounts deposited by the complainant were after taking loan from the ICICI Bank, thus he is entitled to the interest from the date of deposits. He also argued that the complainant cannot be left to suffer due to the negligence of the OPs, in delivery of possession. The ld. counsel also referred to case laws, titled as Puneet Malhotra and others Vs. Parsvnath Developers Ltd.,  2015(1) CLT 552 (NC) wherein in Para 14 of the judgment the Hon’ble National  Commission has directed the OPs to refund the amount which the complainants had deposited with it, alongwith interest on the said amount @ 18% per annum from the date of the deposit was made till the date of refund is made.  Further learned counsel for the complainant has referred to the case titled as  Ghaziabad Development Authority Vs. Union of India & Anr, 2000 (II) CPJ 1 wherein the Hon’ble Supreme Court in Para No.11 has upheld the decision of MRTP Commission for grant of interest from the date of deposited. Para No.11 of the judgment is reproduced as under:

“This case relates to allotment of a flat. The MRTP Commission has led that the claimant entitled to allotment of a flat. An option has been given to the claimant. If the claimant may refuse to take the flat in terms of the direction made by the commission, he will be entitled to the refund of the amounts deposited by him with interest at the rate of 18% p.a. from the date of deposit of the various amounts by the claimant.”

7.                After hearing the Ld. Counsel for the complainant and going through the pleadings, evidence produced by the complainant and the oral argument and written submissions, we find force in the submissions made by the ld. counsel for the complainant. In our view, it is established from the material placed on record i.e. statement by way of affidavit i.e. Ex. CW-1/1, Letter of intent dated 22.05.2012 i.e. Ex.C-3, request letter for refund i.e. Ex.C-4, order dated 05.08.2015 of the OPs i.e. Ex.C-5 and cheque dated 12.08.2015 Ex.C-6, that the OPs had only paid 8% interest for the period of 67 days and not from the date of deposits respectively. It is also evident from the affidavit of the complainant that he had availed a house loan from the ICICI Bank and had been paying higher interest rate. As per the brochure i.e. Ex.C-1(Colly) under Disclaimer clause “in case for whatever reason this scheme fails, GMADA’s liability shall be limited to refunding the money deposited with it @ 8% interest compounded annually.” The complainant has also placed on record a computation of interest @ 8% compounded annually the total interest payable by the OPs is Rs.12,90,861/-

8.                Accordingly, in view of our aforesaid discussion and the case law citied by the ld. counsel for the complainant. We are of the opinion, that the OPs had committed deficiency of service by not paying 8% interest from the date of deposit. There are number of judgments by Hon’ble Supreme Court, State Commission and Hon’ble National Commission wherein it has been observed that the complainant is entitled to receive the interest from the date of deposit. As per case titled as Puneet Malhotra and others Vs. Parsvnath Developers Ltd. (supra)  and Ghaziabad Development Authority Vs. Union of India & Anr, (supra),  the complainant is entitled to receive 8% interest from the date of deposit.      

9.                Hence, we accept the computation chart of interest, prepared by MK Aggarwal & Associates and direct the OPs to pay Rs.12,90,861/-            (Rs. Twelve lacs ninety thousand eight hundred sixty one only) to the complainant, minus Rs.1,33,095/- (Rs. One lac thirty three thousand ninety five only) which had already been paid to the complainant by the OPs on 12.08.2015. We also find complainant to be entitled for compensation on account of mental agony amounting to Rs.10,000/- (Rs. Ten thousand only) alongwith litigation cost amounting to Rs.5,000/- (Rs. Five thousand only).

                  The OPs are directed to comply with the order of this Forum within 45 days from the date of receipt of this order, otherwise OPs shall be liable to pay 9% interest per annum on the total cost awarded. The present complaint stands partly allowed.            

                   The arguments on the complaint were heard on 02.08.2016 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: 09.08.2016 

                                                                                           (A.P.S.Rajput)                                                                                                  President

                     (Amrinder Singh Sidhu)

Member

  (Mrs. R.K. Aulakh)

                     Member