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

                                Consumer Complaint No. 600 of 2016

                                            Date of institution:  19.09.2016                                         Date of decision   : 27.09.2017

Ramesh Handa son of Jagdish Handa House No.301/2, Sector 45-A, Chandigarh.

 ……..Complainant

                                        Versus

1.     The Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, (Mohali).

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

                                        ………. Opposite Parties

Complaint under Sections  12

of  the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President 

Shri Amrinder Singh Sidhu, Member

Mrs. Natasha Chopra, Member.

Present:    Shri Shiv Murti Yadav, cl. for the complainant.

                Shri Anuj Kohli, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant Ramesh Handa has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

              In response to the scheme floated by the OPs for allotment of 700 built up booths in Mohali in the year 2012, the complainant submitted his bid at Rs.13,77,000/- for allotment of a booth. The complainant was informed by the OPs vide letter dated 25.01.2012 that he was a successful bidder against booth No.258. The complainant deposited the required 75% of the amount by 09.05.2012. Thereafter, on the demand of the OPs of Rs.41,344/- towards surcharge, the complainant deposited Rs.41,400/- vide receipt dated 30.04.2013.  The OPs vide allotment letter dated 21.07.2014  allotted Booth No.50, Sector 78 and assured that it will take some time to handover the possession of the built up booth but had not given the allotment letter to the complainant.  The OPs again vide letter dated 10.04.2014 demanded surcharge charges of Rs.41,344/- and service tax to the tune of Rs.42,550/- . The complainant informed the OPs that he has already paid Rs.41,400/- and then the OPs informed him that the service tax has to be paid by the complainant. The complainant informed the OPs that without providing physical possession of the booth service tax cannot be charged. However, the OPs threatened that without payment of service tax, they will not provide the possession to the complainant.  However, the OPs vide allotment letter dated 21.07.2014 admitted receipt of 75% of the bid amount and demanded Rs.2,44,250/- before handing over the physical possession. The complainant deposited Rs.2,44,250/- on 03.07.2015 with the hope that possession of the built up booth will be handed over to him. Since the complainant did not receive any intimation, the complainant vide letter dated 28.01.2016, which was got diarized vide No.2797 dated 29.01.2016, requested the OPs for refund of the amount alongwith 8% interest as per clause in the allotment letter. The complainant also got issued legal notice dated 14.03.2016 but no reply has been given by the OPs.  Hence this complaint for giving directions to the OPs to refund Rs.14,18,400/- alongwith compound interest @ 8% annually from the respective dates of deposits; to pay him Rs.4,00,000/- as compensation for mental and physical harassment and Rs.30,000/- as legal expenses.

2.             The complaint has been contested by the OPs by filing written reply. The OPs in the preliminary objections of the reply have pleaded that the complainant is not consumer as he has purchased the booth for speculation purpose and for re-sale and not for his self occupation. The 75% amount of the bid was deposited by the complainant with delay of 104 days after taking approval from the competent authority. The complainant was asked to deposit an amount of Rs.41,344/- towards surcharge and penal interest of Rs.41,344/- vide letter dated 21.02.2013. Apart from this, the complainant was also informed to deposit an amount of Rs.42,550/- towards service tax as per amended rules of the Central Govt.  The allotment letter dated 21.07.2014 was issued to the complainant. As per general condition No.(viii) of the allotment letter the complainant is liable to pay all general and local taxes, rates, fee and cesses, imposed or assessed by any authority under any law.  However, the complainant did not pay the service tax of Rs.42,550/- till date and as such the possession could not be offered to him. On merits the OPs have denied that any threats were given to the complainant that without payment of service tax, physical possession shall not be given to the complainant.  The OPs have denied receipt of letter dated 28.01.2016 from the complainant as well as the legal notice from his counsel.  The OPs have further pleaded that the jurisdiction to entertain and decide the present case is barred as per Clause XVI of general conditions of allotment letter wherein it has been mentioned that all disputes and/or differences which may arise in any manner touching or concerning this allotment shall be referred to the Sole Arbitrator, Chief Administrator, GMADA or any person appointed/nominated by him in this behalf.   Thus, denying any deficiency in service on their part, the OPs have sought dismissal of the complaint.

3.             The complainant tendered in evidence  his affidavit Ex.CW-1/1; copies of letter for successful bidder Ex.C-1; receipts of payment Ex.C-2 and C-3; letter Ex.C-4; receipt Ex.C-5; allotment letter Ex.C-6; letter regarding refund of money Ex.C-7; legal notice Ex.C-8 and postal receipt Ex.C-9. In rebuttal, the OPs tendered in evidence affidavit of Mahesh Bansal, their Estate Officer (Housing) Ex.OP-1/1 and copies of letters Ex.OP-1 to Ex.OP-3 and allotment letter Ex.OP-4.

4.             The ld. counsel for the complainant has submitted that as per Condition No.1 (IV) of allotment letter i.e. Ex.C-6  the complainant is entitled to withdraw from the scheme and claim the refund of the payments deposited by the him alongwith interest @ 8% compounded annually.  Learned counsel has further submitted that as the OPs could not handover the possession within 12 months from the date of allotment, the complainant vide request dated 28.01.2016 Ex.C-7 sought refund of the amount. He has argued that the complainant was entitled to receive 8% interest compounded annually of the entire deposits made by him due to the deficiency of service on the part of the OPs. 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 deposit. 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.”

5.             On the other hand learned counsel for the OPs has argued that there is no deficiency in service on the part of the OPs. The complainant has made deposit of 75% of the bid amount with delay of 104 days.  The complainant is not a consumer as defined under the provisions of Consumer Protection Act as he has purchased the booth for speculation purposes and for resale and for his self occupation.    Learned counsel has thus prayed that the complaint may be dismissed with heavy costs.

6.             After hearing the Ld. Counsel for the parties and going through the pleadings, evidence and the oral argument as well as written submissions, we find force in the submissions made by the ld. counsel for the complainant.  The contention of the OPs that the complainant is not a consumer, has no force as the complainant has specifically pleaded in his complaint that he wanted a booth to set up his work to earn his livelihood.  The contention of learned counsel for the OPs that as per Clause XVI of general conditions of the allotment, the disputes and/or differences concerning the allotment shall be referred to the Sole Arbitrator cannot be accepted in view of the decision of Hon’ble State Consumer Disputes Redressal Commission, UT Chandigarh in Complaint case No.170 of 2015 titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another decided   on 01.04.2016 wherein it was held that even in the face of existence of arbitration clause in the agreement, to settle the disputes between the parties through arbitration, in terms of provision of Section 8 (amended) of 1996 Act, the Consumer Fora  has jurisdiction to entertain the consumer complaint.   As per condition No.1 (ii) of the allotment letter dated 21.07.2014 Ex.C-6, the possession of the booth was to be handed over to the complainant within one year from the date of allotment.  However, the OPs failed to handover the possession within the period of one year i.e. upto 21.07.2015. After waiting for a considerable time, the complainant vide his request letter dated 28.01.2016 Ex.C-7 sent through registered post, sought refund of the amount deposited by him alongwith 8% interest as per Condition No.1 (iv) of allotment letter Ex.C-6. Condition No.1 (iv) of the allotment letter   is reproduced here below:

“In case the built up booths are not handed over within 12 months from the date of allotment, GMADA shall pay interest @ 8% per annum for the period of delay and also in such a situation the allottee shall be free to get his entire amount refunded with 8% rate of interest compounded annually.”

7.             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 refunding the amount to the complainant alongwith  interest @ 8% per annum interest from the dates of deposit.        

8.             Hence we direct the OPs to refund to the complainant Rs.14,18,400/- (Rs. Fourteen lacs eighteen thousand four hundred only) alongwith interest @ 8% compounded annually from the dates of deposit till actual payment. We also find that the complainant is also entitled for compensation on account of mental agony amounting to Rs.25,000/- (Rs. Twenty five thousand only) alongwith litigation cost amounting to Rs.10,000/- (Rs. Ten thousand only).

               The OPs are directed to comply with the order of this Forum within 30 days from the date of receipt of this order. The present complaint stands allowed accordingly.            

                The arguments on the complaint were heard 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: 27.09.2017    

                                          (A.P.S.Rajput)                  

President

        (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member