BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.689 of 2014

                                 Date of institution:          09.12.2014

                                                 Date of Decision:            25.05.2015

Kimat Lal Goyal son of Jit Ram resident of House No.20966, Street No.2, Power House Road, Bathinda.

    ……..Complainant

                                        Versus

1.    Greater Mohali Area Development Authority (GMADA), PUDA Bhawan, Sector 62, Mohali through Chief Administrator.

2.    Estate Officer, Greater Mohali Area Development Authority (GMADA), PUDA Bhawan, Sector 62, Mohali

………. 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:    Shri R.S. Bhatia, counsel for the complainant.

Opposite Parties ex-parte.

(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 Parties (for short ‘the OPs’) to:

(a)    refund him wrongly deducted amount of Rs.69,000/- alongwith interest @ 18% p.a. w.e.f.  20.03.2012.

(b)    pay him compensation to the tune of Rs.50,000/- for mental harassment.

(c)    pay him Rs.20,000/- as litigation expenses.

                The complainant has pleaded in the complaint that he applied to the OPs for Type A apartment under general category.  Alongwith the application he deposited Rs.6,90,000/- as earnest money vide cheque dated 11.01.2012 which has been got encashed by the OPs. Allotment of the apartment was made by the OP vide letter dated 23.03.2012 Ex.C-4.  Due to some circumstances the complainant was not in a position to retain the apartment and surrendered the allotment vide letter received by OP No.2 on 23.05.2012. The OPs have refunded him Rs.6,21,000/- vide cheque dated 07.08.2012 after deducting Rs.69,000/- from the earnest money being 10%.  The letter of intent was never received by the complainant from the OPs.  As per clause 2 of the brochure Ex.C-1  earnest money shall be refunded on request with 2% deduction before the date of draw, with 10% reduction in case letter of intent is surrendered within 30 days of issuance, shall be forfeited in case of LOI surrendered after 30 days of issuance. The complainant had never received the LOI and had submitted application for withdrawal on 23.05.2012.  Thus, as per the complainant deduction of 10% is illegal and this act of the OPs is an act of unfair trade practice and deficiency in service on their part.

2.             Notice sent to the OPs was duly served but none appeared on their behalf. Thus, the OPs were proceeded against exparte vide order dated 19.01.2015.

3.             Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-6.

4.             In view of the decision of Hon’ble Uttrakhand State Consumer Disputes Redressal Commission in case titled as Consoritum Securities Pvt. Ltd. & Ors. Vs. Smt. Anjana Tyagi,  2013(3) CLT 570 by relying upon the judgment of Hon’ble National Commission in case titled as  Mathura Mahto Mistry Vs. Bindeshwar Jha (Dr.) & another,   2008 (I) CLT 566,  the OPs was given three opportunities to rebut the evidence of the complainant.  However, none appeared for them to rebut the evidence.

5.             We have heard learned counsel for the complainant and gone through the written arguments filed by him.

6.             Admittedly the complainant has been successful allottee of the type-A apartment. Admittedly he has deposited Rs.6,90,000/- as earnest money with the application. Admittedly, being the successful in draw of lots, the intimation has been given to him by the OPs vide Ex.C-4 dated 23.03.2012. As per Ex.C-4 the complainant was required to submit the documents as shown in the brochure at Page-5 and 6 before 23.04.2012.  There is nothing on record to show that the complainant has acted upon the requisite information as incorporated in Ex.C-4. Admittedly the complainant has sought some information under RTI and the same has been replied to by the OPs vide Ex.C-5. Contents of Ex.C-5 clearly reveal that the complainant has been issued LOI vide N.1869 dated 12.05.2012 but the OPs have failed to show the despatch register to corroborate the delivery of such letter No.1869 dated 12.05.2012 meaning thereby, as per complainant he has never received the LOI.  However, it was duty cast upon the complainant to refer to brochure Page No.7 wherein it has been categorically mentioned that in the event of non receipt of LOI by the applicant, he has to approach personally to the office of the OPs to get the LOI issued. Since the complainant has failed to show as whether he has approached the OPs to get the LOI issued or not, the report of the OPs regarding issuance of LOI vide No.1869 dated 12.05.2012 cannot be disputed. 

7.             So much so even the complainant himself has admitted having surrendered the allotment on 23.05.2012 and received the refund from the OPs on 07.08.2012 after deduction of 10% of the earnest money.  The grievance of the complainant is that instead of deduction of 10% the OPs were to deduct only 2% of the earnest money. Therefore, the OPs have unnecessarily deducted 8% more of the earnest money causing him financial loss.

8.             In order to resolve the controversy it will be appropriate to appreciate the terms of refund as mentioned in the brochure. As per Clause 2 of page 35 of brochure, 10% will be deducted in case letter of intent is surrendered within 30 days of issuance and in case LOI is surrendered after 30 days of issuance, the whole earnest money will be forfeited.  Admittedly the LOI has been issued on 12.05.2012 and the complainant has surrendered the flat on 23.05.2012. Thus, the surrender of the allotment is within 30 days of LOI and the OPs are well within their right to deduct 10% of the earnest money as per terms of brochure governing refund of the earnest money. Therefore, the act of OPs in any manner cannot be termed as an act of deficiency in service and unfair trade practice.  Furthermore the complainant has received this amount without any protest and got the cheque encashed. Therefore, the complainant cannot agitate any grievance now once he has received full and final payment.

9.             Thus, the complaint being devoid of any merit is hereby dismissed with no order as to costs.  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 25, 2015.     

                                                                     (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member