STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
HARYANA PANCHKULA
Date of Institution:31.05.2018
Date of final hearing: 24.05.2024
Date of pronouncement: 21.06.2024
Consumer Complaint No.348 of 2018
IN THE MATTER OF
Ms. Savitri W/o Shri Muni Ra, R/o House No.225 F, PWD Colony, Sector-14, Panchkula.
.….Complainant.
Through counsel Shri Sumit Narang, Advocate
Versus
1. Haryana State Agricultural Marketing Board, Mandi Bhawan, C-6, Sector-6, Panchkula through its Chief Administrator.
2. Market Committee, Sector-20, Panchkula, through its Secretary.
.Opposite parties.
Through counsel Shri B.S. Negi, Advocate
CORAM: S.C. Kaushik, Member.
Present:- Shri Sumit Narang, counsel for the complainant.
Shri B.S. Negi, counsel for opposite parties.
O R D E R
S. C. KAUSHIK, MEMBER:
Brief facts of the complaint are that the opposite parties (“OPs”) in the month of May, 2008 launched a scheme for allotment/sale of shops on freehold basis in Agro Mall in Sector-20, Panchkula for marketing of various kinds of agro based products, foods products etc. Complainant applied for a shop for her livelihood and personal use by depositing Rs.3,75,400/- in the year, 2008 and on the basis of draw held on 07.11.2008 she was allotted a shop vide letter dated 19.11.2008. Vide said letter dated 19.11.2008, she was also demanded to deposit 15% more towards the shop and accordingly she deposited Rs.4,24,788/- through receipt dated 18.12.2008. Thereafter, OPs issued allotment letter dated 18.05.2009 vide which Shop No.69 was allotted to complainant stated various conditions. It was alleged that as per condition No.7 of said allotment letter possession of shop shall be offered to complainant after construction of Agro Mall, however no specific time span was mentioned in the said letter. It was further alleged that when the construction work at the project site did not start for long, complainant visited the office of OPs several times and every time complainant was assured orally by the OPs that the possession shall be offered very soon. As the complainant purchased said shop for her livelihood, she kept on making further payments i.e. Rs.4,00,094/- vide receipt dated 01.12.2009 and Rs.4,00,094/- vide receipt dated 28.05.2010. It was further alleged that when there was no sign of construction at the site, complainant wrote a letter dated 13.02.2011 to the OPs, but not reply was given. Thereafter, complainant came to know that OPs have not obtained all the prior permissions and sanctions from the competent authorities for launching the said project and therefore, the project was expected to be delayed further.
2. It was further alleged that in the original brochure there were only 51 shops shown on the ground floor but later it came to the knowledge of the complainant 91 shops were sold on the ground floor, which amounts unfair trade practice on the part of OPs. Thereafter, when the construction was not completed within the scheduled time i.e. by 28.03.2013, complainant served a legal notice dated 05.05.2016 upon the OPs with a request to refund the deposited amount along with interest. However, the said legal notice was replied by the OPs as per which it was proved that the OPs launched the scheme without requisite permission and approvals from the competent authorities. It was further alleged that there was deficiency in service on the part of OPs and prayed for issuance of directions to the OPs to refund of deposited amount i.e. Rs.16,00,376/- with interest @ 18% p.a. from the date of deposits till realization; to pay Rs.5,00,000/- as compensation for physical and mental harassment and to pay Rs.75,000/- as litigation expenses.
3. Notice of the complaint was issued to OPs upon which they appeared and filed their joint written statement submitted therein that present complaint is liable to be dismissed as the present complainant does not fall under the definition of a ‘consumer’ because the shop/space in question was purchased for commercial activity. It was submitted that Ops launched the scheme for shops/space in Agro Mall, Sector-20, Panchkula after obtaining prior sanctions/approvals from the competent authorities upon which complainant herself approached the OPs for booking of shop/space in question in the said Agro Mall. Since, it was a construction linked plan according to which payment schedule was also acknowledged to her. However, after receiving the 15% of total cost, shop/space was also allotted to her. Moreover, as per condition No.7 of the allotment letter dated 18.05.2009 there was no time specified for offering the possession of the shop/space in Agro Mall. The complainant had to approach the Chief Administrator H.S.A.M.B as per provisions of HAPM Act under Section 40, but the complainant did not approach above mentioned authorities. It was further submitted that complainant herself was a defaulter in making the payments as per payment schedule. The complainant had entered into a legal contract and is bound to comply with each and every condition of the contract, payments of installments, interest and penal interest are contractual obligations which cannot be linked or made dependable on conditions and as such provisions, basic amenities etc. not agreed terms between the contracting parties. Other allegation levelled in the complaint were denied, finally it was submitted that there was no deficiency in service on the part of OPs and hence prayed for dismissal of the complaint.
4. When the complaint was posted for recording evidence of the complainant, learned counsel for complainant has tendered into evidence affidavit of Ms. Savitri as Ex.CA, whereby he reiterated all the averments of the complaint and further tendered other documents (Ex.C-1 to Ex.C-8) and closed the evidence.
5. Thereafter, the complaint was posted for recording evidence of OPs, Mr. Baldeep Singh, Assistant Secretary, Market Committee, Panchkula (Authorized Representative of OPs) has tendered into evidence his affidavit as Ex.OP along with documents Ex.OP-1 to Ex.OP-2 and closed the evidence on behalf of OPs.
6. The arguments have been advanced by Mr. Sumit Narang, Advocate learned counsel for complainant and Mr. B.S. Negi, learned counsel for OPs. With their kind assistance entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint had also been properly perused and examined.
7. As per the basic averments raised in the complaint including the contentions raised by the learned counsel for the complainant, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get relief as prayed in the complaint or not?
8. It is an admitted fact that the OPs launched a scheme for allotment/sale of shops on freehold basis in the air conditioned, four stories Agro Mall, Sector-20, Panchkula for marketing of various kinds of agro based products, food products and other allied products relating to agriculture and horticulture through brochure in May, 2008 (Ex.C-1). It also an admitted fact that complainant applied for a shop by depositing an amount of Rs.3,75,000/- and on the basis of draw held on 07.11.2008 a shop was allotted to her vide letter dated 19.11.2008 (Ex.C-2). Thereafter, complainant further deposited an amount of Rs.4,24,788/- against receipt dated 18.12.2008 (Ex.C-3) and thus, the complainant paid an amount of Rs.8,00,188/- as 25% of the allotment price. It is also an admitted fact that shop bearing No.69, in Agro Mall, Sector-20, Panchkula was allotted to complainant vide letter dated 18.05.2009 (Ex.C-4). It is also an admitted fact that again vide receipt dated 01.12.2009 the complainant deposited an amount of Rs.4,00,094/- and Rs.4,00,094/- vide receipt dated 28.05.2010 with the OPs (Ex.C-5 colly). However, legal notice dated 05.05.2016 (Ex.C-7) served upon the OPs by the complainant also stands proved.
9. In view of the above submissions and after careful perusal of the entire record, it stands proved that upon floating a scheme by the OPs, a shop/space was purchased by the complainant against which an amount of Rs.16,00,376/- has already been paid by complainant on different dates as per demands of OPs. Allotment letter dated 18.05.2009 also stands proved. As per the said allotment letter, the possession of the shop was to be delivered within a short span of time after construction of building, complete in all respects. To the utter surprise of this Commission it is quite surprising as to how inspite of the fact that a period of more than 14 years had expired, the possession of the shop has not been delivered to the complainant by OPs, which clearly indicates that the scheme was launched by OPs without prior approvals/permission from the competent authroities. As such, there was a clear breach of terms and conditions of the allotment letter on behalf of the OPs. It is the normal trend of the developers that a developer would collect their hard earned money from the unsuspecting individuals and would invest the funds in other projects and as a result thereof the project for which the investors have invested their hard earned money is not completed. Resultantly, completion of the project and the delivery of possession is delayed as in the present case. When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in services on the part of OPs and thus, complainant is well within their legal rights to seek refund of the amount of Rs.16,00,376/- (Rs. Sixty lacs three hundred seventy six only) which she had already deposited with the OPs. Even otherwise also, there is a strong element of physical and mental agony caused to the complainants for their having invested a huge amount and still being deprived of and not being put into possession of the shop and under these constrained circumstances, she had to knock at the door of this Commission even for seeking refund of the amount. In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.
10. As regards the rate of interest to be awarded, it may be relevant to keep the following factors into consideration. Keeping in view the recent periodic revision of repo rate by Monetary Policy Committee of Reserve Bank of India and consequent upward revision of Marginal Cost of Lending Rate (MCLR) by Nationalized Banks, there has been an increase in lending rate by the Nationalized banks. Accordingly, it would, in considered view of this Commission, be just fair and reasonable to award 9% as the rate of interest to the complainant.
11. In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OPs are directed to refund the deposited amount of Rs.16,00,376/- (Rs. Sixty lacs three hundred seventy six only) alongwith interest @ 9% per annum to the complainants from the date of its respective deposits till realization. In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainant would further be entitled to get the interest @ 12% per annum, for the defaulting period. The complainant is also entitled to a sum of Rs.50,000/- (Rs. Fifty Thousand Only) on account of compensation for mental and physical agony. In addition, the complainant is also entitled to an amount of Rs.25,000/- (Rs. Twenty Five Thousand Only) as litigation charges. It is also made clear that in case of non-compliance, the provisions enshrined under section 72 of the C.P. Act would also be attractable.
12. Application(s) pending, if any, stands disposed of in terms of the aforesaid order.
13. A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.
14. File be consigned to record room alongwith a copy of this order.
Pronounced on 21st June, 2024 S.C. Kaushik Member Addl. Bench
