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

                                  Consumer Complaint No.594 of 2014

                                 Date of institution:          01.10.2014

                                                   Date of Decision:             14.05.2015

Hari Mohan son of Late Shiv Dutt, House No.104, Tribune Colony, Baltana, District SAS Nagar (Mohali) 140604.

    ……..Complainant

                                        Versus

Greater Mohali Area Development Authority (GMADA) PUDA Bhawan, Sector 62, Mohali through its Chief Administrator/Authorised Representative.

………. Opposite Party

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:    Complainant in person.

Shri G.S. Arshi, counsel for the OP.

(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 Party (for short ‘the OP’):

(a)    to pay him Rs.45,800/- on account of delay in release of refund of earnest money .

(b)    to pay him Rs.1.00 lac for unfair trade practice and deficiency in service.

(c)    to pay him Rs.1.00 lac for mental agony and harassment.

(d)    to refund him Rs.55,200/- deducted in excess alongwith interest and compensation.

(e)    to pay interest @ 18% on the above mentioned amounts.

(f)     to pay him costs of litigation.

                The complainant’s case is that the OP floated a scheme for allotment of apartments in Purab Premium Apartments from 12.12.2011 to 12.01.2012. The complainant applied for allotment of Type-III Apartment in General Category vide application No.38141 by getting it financed from State Bank of Patiala Sector 67, Mohali.  The bank paid an amount of Rs.6.9 lacs to the OP on behalf of the complainant being 10% earnest money of the total cost. The bank charged from the complainant Rs.24,725.00 as interest on the financed amount.  The complainant was allotted apartment vide letter of intent dated 22.05.2012 and the complainant was required to make payment of Rs.13,80,000/- being 20% price of the apartment by 22.06.2012. As per Clause 2.1 of the letter of Intent in case of failure to make the payment within stipulated period, the amount paid was to be refunded with 10% deduction and allotment was cancelled. However, this period could further be extended upto 30 days with 2% penalty, upto 60 days with 3% penalty and upto 90 days with 5% penalty on prior written request. The complainant could not pay this amount and was under impression that he would get the refund of earnest money in terms of Para 2.1(II) of LOI with 10% deduction on cancellation of allotment. After waiting for quite some time the complainant visited the OP for refund of earnest money but the officials of the OP always assured the complainant that the matter was under process and refund would be shortly made. The complainant also sent letters dated 14.09.2012, 17.09.2012, 03.12.2012, 20.10.2012, 15.01.2013 and 18.06.2013 but without any result.  The complainant even met the higher authorities of the OP and sought refund as the bank was continuously charging interest ranging from 10.25% to 10.75% on the earnest money. The OP finally made refund of Rs.6,21,000/- to the complainant vide letter dated 16.01.2013 by deducting 10% from the earnest money. The amount was credited to the account of the complainant on 07.02.2013. Due to delay in refund of the earnest money from July, 2012 to February, 2013 the complainant had to pay Rs.45,800/- in excess without any fault of the complainant.    Even 10% deduction from the earnest money by the OP is unjustifiable and arbitrary.  Thus there is deficiency in service on the part of the OP

2.             The OPs in the written statement have pleaded in the preliminary objections that the complainant is not consumer as the complaint is not maintainable and is liable to be dismissed. The complainant is estopped by his act and conduct to file the complaint. The complainant has already been refunded the amount which has been accepted by the complainant without any protest. The complaint is bad for non joinder of bank being necessary party. On merits, it is pleaded that after being successful in the draw of lots, the complainant did not deposit the amount of Rs.13,80,000/- in terms of LOI to complete 30% of the cost of the apartment.  Neither he deposited the amount nor refused to accept the allotment in writing.  The complainant never visited the office of the OP. He sought refund of the amount vide his letter dated 26.10.2012 received in the office of the OP on 20.11.2012. After processing of his request for refund, the refund order was passed on 16.01.2013 after cancelling allotment and deduction of 10% of earnest money.  The refund was made to the bank on 23.01.2013.  Thus the OP has denied any delay in making refund of the amount to the complainant.  Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.

3.             Evidence of the complainant consists of his affidavit Ex.CW-1/1; copies of documents Ex.C-1 to C-10.

4.             Evidence of the OP consists of affidavit of Mahesh Bansal, Estate Officer Ex.OP-1/1.

5.             We have heard the complainant in person and learned counsel for the OP and have gone through the written arguments of the complainant.

6.             Admittedly the complainant has been successful in draw of lots held by the OP.  LOI to the complainant was issued on 22.05.2012 Ex.C-1 and is duly acknowledged by the complainant. As per terms of the LOI the complainant was to make payment of earnest money i.e. initial 30% by 22.06.2012. However, this period could further be extended upto 30 days with 2% penalty, upto 60 days with 3% penalty and upto 90 days with 5% penalty on prior written request. In case the said payment is not made within the stipulated period or extended period on request, in that eventuality the OP was well within its right to refund the paid amount with the application with 10% deduction and cancel the allotment.  The case of the complainant that he has not paid 30% amount as clause-2 (i) of LOI Ex.C-1 either within the stipulated period or within the extended period  as no such extension was sought by him.  The grievance of the complainant is that there is delay in release of the earnest money by the OP causing him interest loss on the amount wrongly retained by the OP.

7.             As per complainant he has submitted his first request for refund of the amount on 14.09.2012 Ex.C-2 i.e. the acknowledgment dated 14.09.2012 duly issued by the OP. The perusal of Ex.C-2 clearly shows that the complainant’s request dated 14.09.2012 has been duly acknowledged and so much so the OP has agreed to take action by 18.09.2012 whereas quite contrary to their own admission of action dated 18.09.2012 Ex.C-2  the actual refund to the complainant has been given on 16.01.2013 vide Ex.C-8 the refund order of Rs.6,21,000/- has been issued by the OP in favour of the banker of the complainant  and further the banker has given the credit of this amount to the loan account of the complainant on 07.02.2013 vide bank statement Ex.C-9.  Thus there is a clear cut delay in processing the claim of the complainant beyond 18.09.2012 to 16.01.2013 i.e. for a period four months in release of the refund to the complainant and due to the acts of omission of the OP, the complainant has been made to pay interest on the loan account from 18.09.2012 to 16.01.2013 without any fault of the complainant.

8.             The OP on the other hand is silent about their own document Ex.C-2 throughout in its pleadings and evidence. The veracity of the document i.e. Ex.C-2 cannot be disputed as it is an acknowledgement issued by the OP himself. Thus it is ample clear that the OP has received the request of the complainant for refund on 14.09.2012 and promised to take action by 18.09.2012. Any delay occurred thereafter at the level of the OP is an act of deficiency in service and unfair trade practice for which the complaint deserves to be allowed and the complainant deserves to be compensated.

9.             In view of above discussion, the complaint is allowed with the following direction to the OP:

(a)    to pay interest to the complainant on the earnest money for the period from 18.09.2012 to 16.01.2013 which he had paid to the bank due to delay in release of payment.

(b)    to further pay interest @ 9% per annum on the amount so payable to the complainant as per direction (a) above from 18.09.2013 till actual payment.

(c)    to pay lump sum compensation of Rs.20,000/- (Rs. Twenty thousand only) to the complainant  for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. 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 14, 2015.     

                                                                       (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member