Haryana

StateCommission

CC/205/2019

B.R.SHEORAN - Complainant(s)

Versus

HEWO AND ANOTHER - Opp.Party(s)

ROBIN SATHI

10 Jan 2024

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:27.06.2019

                Date of final hearing:10.01.2024

                                                Date of pronouncement:15.01.2024

 

Consumer Complaint No.205 of 2019

 

 

IN THE MATTER OF

 

B. R. Sheoran S/o Shri Ram Dhan Sheoran, R/o House No.1245, Sector-19, Faridabad (Haryana).

                                                                            .….Complainant.

Through counsel Mr. R.S. Sathi, Advocate

 

Versus

 

1.  Haryana Employees Welfare Organization, Sector-6, (HUDA Building), Panchkula through its Managing Director.

2.    The Managing Director, HEWO, Sector-6, HUDA Building, Panchkula.

….Opposite parties

 

Through counsel Shri Sikander Bakshi, Advocate

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. R.S. Sathi, counsel for the complainant.

Mr. Sikander Bakshi, counsel for opposite parties.

 

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that the complainant intended to become the member of opposite party-society(“OP”), so he got transferred the membership of HEWO No.12241 in his favour regarding a deluxe flat at the site of OP bearing No.GH-33, situated at Sector-65, Faridabad with the prior permission of builder vide transfer letter dated 08.08.2011. OP allotted flat No.201, HEWO Society, GH-33, Sector-65, Faridabad. Complainant had paid Rs.42,70,000/- against the membership with OPs. Thereafter, due to family circumstances, the complainant was compelled to surrender the abovementioned flat on 11.08.2017. He also submitted all the relevant documents with the through his application dated 21.05.2018. Surrender of flat was accepted by OPs vide letter No.HEWO/2018/8074 dated 29.05.2018 and intimated that the refund of Rs.42,16,820/- will be made after deduction of Rs.53,180/- i.e. 20% of the earnest money of Rs.2,65,900/-. It was alleged that after receiving said letter complainant requested the OPs to refund the deposited amount along with interest @ 18% p.a. from the date of deposits till its refund, but OPs failed to do so.

2.                It is further alleged that OPs are negligent while rendering the services because on the one hand they forfeited Rs.53,180/- from the deposits made by complainant and on the other hand, they imposed the condition of refund of remaining amount of Rs.42,16,820/- only after its resale of flat booked by complainant because this condition is against the principles of natural justice.  It is further alleged that the complainant has been unnecessarily harassed resulting into mental agony due to wrong doings and illegal actions of OPs because OPs are misusing their position and imposing unfair terms on the complainant. Thus, there is deficiency in service on the part of OPs and complainant prayed that OPs be directed to refund the amount of Rs.42,16,820/-, which was paid by the complainant to OPs along with interest @ 12% p.a. from the date of deposit till actual realization; to pay an amount of Rs.5,00,000/- as compensation for mental harassment and mental agony; to pay Rs.55,000/- as litigation expenses and other reliefs as prayed for.

3.                Notice of the complaint was issued against the Ops, upon which they appeared and filed their written statement and submitted therein that HEWO (OPs) is a private welfare organization of HUDA, Urban Estate and Town & Country Planning Department employees who are providing all possible help to serving and retired HUDA, Urban Estate and Town & Country Planning employees and personnel of HEWO. It was submitted that membership No.12241 of Deluxe Category at GH-33, Sectpr-65, Faridabad was allocated initially in 3^rd Scheme-III of HEWO in 2005 to Shri Ajit Singh, ADA O/o LAO, Urban Estate, Gurgaon on 27.11.2006. The tentative cost of Rs.33,65,900/- was called from the member vide office letter No.984 dated 25.01.2011. Thereafter, Shri B.R. Sheoran (present complainant), ADA O/o Administrator, HUDA, Faridabad got transferred this membership in his name vide office letter No.1339 dated 08.08.2011 in accordance with the policy.

4.                It was further submitted that tentative cost was increased due to construction of basement and change of some specification, variation in super area of flats and difference of rate of steel & cement etc. Thereafter, members were asked vide letter No.3240 dated 22.11.2012 to deposit increased amount, but complainant applied for refund of his deposited amount due to seven years imprisonment in a criminal case and termination of service. His request for surrender was accepted vide letter No.8074 dated 29.05.2018 with the condition that out of deposited amount i.e. Rs.42,70,000/- refund of only Rs.42,16,820/- will be made i.e. after deducting Rs.53,180/- (20% of earnest money of Rs.2,65,900/-) only after its recouped by HEWO through resale of his membership of flat as per the decision taken by governing body of HEWO in its meeting dated 06.05.2014. It was further submitted that construction work of society has been completed on 27.03.2014 and flats have been allotted to the members who made the full payment. It was further submitted that members of HEWO Scheme-III are surrendering their flats at Faridabad and Sonepat due to slump in the real estate.  Finally, it was submitted that there was no deficiency in service on the part of the Ops and prayed for dismissal of the complaint.

5.                When the complaint was posted for recording evidence of the parties, learned counsel for complainant has tendered in evidence affidavit of complainant as Ex.CW1/A vide which he has reiterated all the averments taken in the complaint and further tendered the documents, Ex.C-1 to Ex.C-6 and closed the evidence.

6.                On the other hand, learned counsel for OPs has tendered into evidence affidavit of Shri B.B.Gupta, Managing Director of HEWO as Ex.OPW1/A alongwith other documents Ex.OP-1 to Ex.OP-5 and closed the evidence on behalf of Ops.

7.                The arguments have been advanced by Mr. R.S. Sathi, learned counsel for the complainant and Mr. Sikander Bakshi, 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 have been properly perused and examined.

8.                As per the basic averment raised in the complaint and the including the contentions put forth by the learned counsel, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get refund of the amount which he had already deposited with the OPs, alongwith interest or not? 

9.                While unfolding his arguments, it has been argued by Mr. R.S. Sathi, learned counsel for the complainant that as far as the transfer of HEWO membership No.12241 of Deluxe Category Flat  of site No.GH-33, situated at Sector-65, Faridabad (Ex.C-1) is concerned, the same could not be disputed. It is also not in dispute that complainant deposited an amount of Rs.42,70,000/- with the OPs. It is also not in dispute that the complainant surrendered the membership bearing No.12241 against the said flat vide OPs letter dated 19.12.2017 (Ex.C-2). Thereafter, complainant submitted all the relevant documents vide application dated 21.05.2018 (Ex.C-3). Learned counsel for complainant has argued that though the OPs accepted application for surrender of flat through letter dated 29.05.2018 (Ex.C-4) but illegally deducted an amount of Rs.53,180/- i.e. 20% of earnest money of Rs.2,65,900/- from the total deposited amount i.e. Rs.42,70,000/-. Further, they illegally imposed the condition that said amount will be refunded only after its recouped by OPs through resale of flat in question. Learned counsel for complainant has further argued that due to family circumstances, complainant was not in a position to pay remaining increased installments, so he wants the refund of deposited amount, but complainant has been unnecessarily harassed by the OPs by misusing their position and imposing unfair terms on the complainant.

10.              On the other hand, Mr. Sikander Bakshi, learned counsel for OPs has argued that the membership No.12241 of Deluxe Category at GH-33, Sectpr-65, Faridabad was allocated initially in 3^rd Scheme-III of HEWO in 2005 to Shri Ajit Singh, ADA O/o LAO, Urban Estate, Gurgaon on 27.11.2006. The tentative cost of Rs.33,65,900/- was called from the member vide office letter No.984 dated 25.01.2011. Thereafter, Shri B.R. Sheoran (present complainant), ADA O/o Administrator, HUDA, Faridabad got transferred this membership in his name vide office letter No.1339 dated 08.08.2011(Ex.R-1). He further argued that tentative cost was increased due to construction of basement and change of some specification, variation in super area of flats and difference of rate of steel & cement etc. Thereafter, members were asked vide letter No.3240 dated 22.11.2012 (Ex.R-2) to deposit increased amount, but the complainant applied for refund of his deposited amount (Ex.R-3). His request for surrender was accepted vide letter No.8074 dated 29.05.2018 (Ex.R-5) with the condition that out of deposited amount i.e. Rs.42,70,000/- refund of only Rs.42,16,820/- will be made i.e. after deducting Rs.53,180/- (20% of earnest money of Rs.2,65,900/-) only after its recouped by HEWO through resale of his membership of flat as per the decision taken by governing body of HEWO in its meeting dated 06.05.2014. He further argued that construction work of society has been completed on 27.03.2014 and flats have been allotted to the members who made the full payment. Finally, he argued that there was no deficiency in service on the part of the Ops and prayed for dismissal of the complaint.

11.              In view of the above submissions and after careful perusal of the entire record, it stands proved as well as admitted by the parties that  HEWO (OP) is a private welfare organization of HUDA, Urban Estate and Town & Country Planning Department employees who are providing residential accommodation to serving and retired HUDA, Urban Estate and Town & Country Planning employees and personnel of HEWO. It also stands proved that the complainant got transferred the membership of HEWO No.12241 in his favour regarding a deluxe flat at the site of OP bearing No.GH-33, situated at Sector-65, Faridabad vide transfer letter dated 08.08.2011. It also stands proved that OP allotted flat No.201, HEWO Society, GH-33, Sector-65, Faridabad against which complainant had paid an amount of Rs.42,70,000/- to the OPs. As per the complainant, due to family circumstances, the complainant was compelled to surrender the abovementioned flat on 11.08.2017 and he submitted all the relevant documents with the OPs through his application dated 21.05.2018. However, the surrender of flat was accepted by OPs vide letter No.HEWO/2018/8074 dated 29.05.2018, but it was intimated that the refund of Rs.42,16,820/- will be made after deduction of Rs.53,180/- i.e. 20% of the earnest money of Rs.2,65,900/-. It also stands proved that the complainant also requested the OPs to refund the deposited amount along with interest, but instead of paying the same OPs imposed another condition that said amount will be refunded only after its recouped by HEWO through resale of his membership of flat. To the utter surprise of this Commission it is quite surprising as to how inspite of the fact that a period of more than 6 years had expired, since the complainant surrendered the membership regarding flat in question, but the deposited amount has not been paid by 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.  When the deposited amount has not been refunded, as such, this Commission is of the considered opinion that there is deficiency in service on the part of OPs and complainant is well within their legal rights to seek refund of the amount which they had 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 getting the refund of their deposited amount and under these constrained circumstances, they had to knock at the door of this Commission 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.

12.              As far as the question of refund of deposited amount is concerned, it is pertinent to mention here that it is an admitted fact by the OPs that the complainant had deposited an amount of Rs.42,70,000/- with them. Thus, the complainants are entitled to get refund of Rs.42,16,820/- (Rs. Forty two lacs sixteen thousand eight hundred twenty only) i.e. after deducting Rs.53,180/- i.e. 20% of the earnest money of Rs.2,65,900/- on account of having surrendered his membership.

13.              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.

14.              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.42,16,820/- (Rs. Forty two lacs sixteen thousand eight hundred twenty 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 complainants would be entitled to get the interest @ 12% per annum, for the defaulting period. The complainant is also entitled to a sum of Rs.10,000/- (Rs. Ten thousand only) on account of compensation for mental and physical agony. In addition, the complainant is also entitled to an amount of Rs.10,000/- (Rs. Ten 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.

15.              Application(s) pending, if any, stands disposed of in terms of the aforesaid order.

16.              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.

17.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 15^th January, 2024

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench-III