Complainant Subash Chander Mahajan through the present complaint filed U/s 12 of the Consumer Protection Act, 1986 (hereinafter for short the Act) has prayed that opposite party be directed to refund the amount of Rs.9,21,600/- alongwith interest @ 15% per annum from the date of encashment of the cheque till the final payment to him. He has also claimed cost of Rs.50,000/-, legal fee of Rs.25,000/- and Rs.2,00000/- as compensation for causing harassment and mental agony to the complainant. 

2.       The case of the complainant in brief is that on 15.5.2011 he booked a plot measuring 192 square yards @ 16,000/- per Sq. yard in the name of his two daughters Mrs.Deepti Mahajan and Mrs.Priyanka Mahajan, in the residential project “VENETIAN SPACES” situated in GMADA  Master plan of the opposite party vide application No.B/0052 dated 15.5.2011 and paid Rs.9,21,600/- through cheque No.001051 dated 14.6.2011 drawn on Corporation Bank, Gurdaspur. It was pleaded that the above said cheque was handed over to the representative of the opposite party at Gurdaspur, who has come to Gurdaspur for the advertisement and for booking of the plots of the opposite party for the above mentioned project. It was pleaded that the said cheque was encashed by the opposite party through their Banker and as such complainant is the consumer of the opposite party. It was further  pleaded that at the time of booking of the plot and receipt of the above said cheque of Rs.9,21,600/- from the complainant opposite party misrepresented that they have already got the CLU (Change of Land Use) certificate from the concerned authority and the plot will be allotted in the names of his daughters. It was next pleaded that on the allurement of the opposite party complainant issued the above said cheque amounting to Rs.9,21,600/- to the opposite party and the same was got encashed by the opposite party which was retained by them illegally. It was also pleaded that plot booked by the complainant has not been delivered to him by the opposite party as they have not got any CLU certificate with them. It was pleaded that at the time of receiving of booking amount from the complainant opposite party was well aware that they have no CLU certificate and without this certificate they cannot book, allot/sell the plots to the consumers but even then they received the cheque amount from the complaint. It was further pleaded that complainant approached the opposite party many times with the request that either to allot the plot to him or to refund the amount which was illegally retained by them alongwith interest @ 15% P.A. but the opposite party putting off the matter with one or the other pretext. It was also pleaded that complainant issued legal notice to the opposite party on 1.11.2014 through his counsel and in response to this the opposite party has sent certain blank documents for the signatures of the complainant but they refused to pay interest on the above said amount of Rs.9,21,600/- retained by the opposite party, hence this complaint.

4.       Complainant tendered into evidence his own affidavit Ex.CW1/A alongwith documents Ex.C1 to Ex.C7 and closed his evidence.

5.       We have duly considered the pleadings; heard the arguments advanced by counsel for the complainant and have also appreciated the evidence produced on record with the valuable assistance of the learned counsel for the purpose of adjudication of the present complaint.

6.       We find from the complaint proceedings that the opposite party after putting up appearance (through its counsel) on six regular hearings starting from 16.03.2015 preferred to stay absent on 09.06.2015 when they were ordered to be proceeded ‘ex-parte’. During the period, the opposite party did not even file the ‘written version’ even after availing of ‘six’ opportunities (granted upon request/ cost-levying) and that affords the necessary ‘criterion’ to judicial discretionary presumption that ‘the opposite party do not have any ‘defense’ to plead. Somehow, they missed the legs to stand/come to the ‘witness-box’ and depose their ‘defense’. On the other hand, the learned counsel for the complainant put forth Ex.C1 the ‘proof’ of booking of ‘192 sq. yd. residential-plot’ by depositing an amount of Rs.9,21,600/- through cheque dated 14.06.2011 allegedly en-cashed by the opposite party. The Ex.C3 is the payment plan exhibiting the delivery/handing over of the ‘developed’ plot to the allottee within 18 months of the booking. Going by the allegations as made out in the body of the complaint the opposite party could not procure/possess the ‘requisite’ CLU (change of land-use) from the competent authority so as to develop and further deliver the ‘possession’ of the same to the ‘allottee’. The preferred ‘silence’ to ‘rebuttal’ by the opposite party (opting ‘ex-parte/absence’ by choice) gives rise to somewhat ‘authenticity’ to the complainant’s version. We get inclined to believe that the complainant’s consumer rights have indeed been bruised at the deceptively ‘unworthy hands’ of the opposite party at play. We are further strengthened in our belief by the latest judgment of the honorable National Commission in FA # 342/ 2014 titled: Emaar MGF Land Limited vs. Karnail Singh & Anr.; in which paragraph 23 reads as: “This act of the appellants in asking the respondents to pay a sum of Rs.5 Lac as booking amount and Rs.5.78 Lac as part payment towards the provisional allotment in the year 2011 without giving them any firm date of handing over of the possession of the plot is a ‘deceptive practice’ which falls within the meaning of ‘unfair trade practice’ as defined under the Consumer Protection Act. 1986. The appellants should have given firm date of handing over the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amount to unfair trade practice.”    

7.       In the light of the all above, we partly allow the present complaint and hold the opposite party as guilty of ‘unfair trade practice’ also amounting to ‘deficiency in service’ and thus ORDER the titled opposite party to refund back the full booking amount of Rs.9,21,600/- with interest @ 9% PA to the complainant, from the date of encashment of the Cheque till actual payment besides to pay him Rs.10,000/- as compensation and Rs.5,000/- as litigation expenses within a period of 30 days from the receipt of the copy of these orders failing which proceedings U/s 27 of CPA shall be initiated against the opposite party.   

8.       Copy of the order be communicated to the concerned parties free of charges and the file be consigned to records.

                                                                             (Naveen Puri)

                                                                                    President.                                                                                                     

Announced:                                                         (Jagdeep Kaur)

July 07, 2015                                                                 Member.

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