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

                                  Consumer Complaint No.221 of 2015

                                                Date of institution:  13.05.2015                                         Date of decision   :  03.10.2016

1.     Mrs. Glenda Nunes wife of Michael Nunes

2.     Michael Nunes son of John Nunes

        Residents of House No.149, Sector 15-A, Chandigarh

 ……..Complainants

                                        Versus

1.     Mariners Buildcon India Limited, C-10, Ground Floor, Kailash Colony, New Delhi, through Mr. H.S. Anand, Managing Director, through its Managing Director/Director/Authorised Signatory.

2.     Mariners Buildcon India Limited, Sunny Enclave, Desumajra, Tehsil Kharar, District Mohali through its Managing Director/Director.

3.     M/s. Bajwa Developers Ltd., Regd. Office: Sunny Enclave, Desumajra, Tehsil Kharar, District Mohali through its Managing Director/Director.

                                                           ………. Opposite Parties

Complaint under Sections 12 to 14

of the Consumer Protection Act

Quorum

Shri Ajit Pal Singh Rajput, President                          Shri Amrinder Singh Sidhu, Member.

Mrs. R.K. Aulakh, Member.

Present:    Shri Sandeep Bhardwaj, counsel for the complainants.

                OP Nos.1 and 2 ex-parte.

                Shri Kulwinder Singh, counsel for OP No.3.

ORDER

By Ajit Pal Singh Rajput, President

                Complainants, Mrs. Glenda Nunes wife of Michael Nunes and Michael Nunes son of John Nunes residents of House No.149, Sector 15-A, Chandigarh, have filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The complainants became member of OP No.1 and 2 for purchase of villa and submitted application dated 19.10.2009 alongwith cheuqe of Rs.1,75,000/- to OP No.1 and 2 for booking of the villa. After that the complainants did not get any information regarding the proposed villas. In May, 2010 the complainants received letter dated 06.05.2010 from the OP No.1 and 2 to pay first installment of Rs.4,50,000/- towards registration of the villa. It was also mentioned that the project was being started at Sector 123, Mohali. The complainants asked OP No.1 and 2 that no allotment has been made in their favour as per advance booking registration form and they were also not informed about change of site of the project from Sector 115 to 123. Complainants were also not given any payment schedule as per which the amount of Rs.4,50,000/- was demanded.  The complainants visited the site but no development or construction work was going on there. The complainants visited the site again in May, 2011 and September, 2011 but there were no signs of development.  In response to various e-mails sent by the complainants, the OP No.1 and 2 sent letter dated 12.01.2012 informing the complainants that provisional allotment of the villa stands cancelled and the amount of Rs.1,75,000/- was refunded through cheque dated 27.12.2011.  However, this cancellation is in contravention to the agreement as it has no condition of cancellation of villa. The complainants issued legal notice dated 13.03.2012 to the OPs and also returned cheque dated 27.12.2011 as the cancellation was illegal. OP No.1 and 2 vide reply dated 04.04.2012 to the legal notice admitted the factum of booking and also returned the cheque of Rs.1,75,000/- with interest of Rs.41,912/- vide another cheque dated 04.04.2012. Similar allottee like the complainants had obtained information dated 22.10.2014 under RTI Act vide which it was informed by Punjab Town Planning and Development Authority that no permission has been given to OP No.1 and 2 to launch the project namely Mohali Oceanic at Sector 123, Mohali. Various other information sought from different authorities by other allottees also revealed that no sanction has been accorded in favour of OP No.1 & 2 for launching this project.  OP No.1 and 2 had been sending vague e-mails to the complainant that they have received CLU, layout plans and other permissions/sanctions from the competent authorities. Hence this complaint for giving directions to the OPs to refund them Rs.1,75,000/- alongwith interest @ 18% per annum from the respective date of deposit till realisation; to pay them compensation to the tune of Rs.5.00 lacs for mental agony, physical harassment and financial loss and Rs.1.00 lacs as litigation costs.

3.             None appeared for OP No.1 and 2 despite publication. Hence, OP No.1 and 2 were proceeded against exparte vide order dated 11.04.2016.

4.             The complaint is contested by OP No.3 by filing written statement in which it had raised certain preliminary objections, inter alia, that no cause of action has arisen against OP No.3; there is no ‘consumer –service provider relationship between the parties. On merits, OP No.3 has denied the averments in the complaint for want of knowledge and prayed for dismissal of the complaint.

5.             In order to prove the case, the complainants tendered in evidence affidavit of complainant No.1 Ex. CW-1/1; copies of brochure Ex.C-1; application form dated 19.10.2009 Ex.C-2; cheque alongwith receipt Ex.C-3; correspondence dated 06.05.2010 Ex.C-4; computer generated e-mails Ex.C-5, C-6 and Ex.C-10 (colly); letter dated 12.01.2012 Ex.C-7; legal notice dated 13.03.2012 Ex.C-8; reply dated 04.04.2012 Ex.C-9; RTI’s Ex.C-11 to C-14; letters dated 02.02.2008 and 19.04.2012 Ex.C-15 and C-16 and postal receipts dated 21.04.2012 Ex.C-17  In rebuttal OP No.3 tendered in evidence affidavit of  Jarnail Singh Bajwa, its MD Ex.OP-3/1.

6.             The learned counsel for the complainants has argued that OP No.1 and 2 have received the payment from the complainant despite the fact that they were not having requisite sanctions/approvals from the competent authorities in their favour for launching the project. The refund of amount itself proves that the OP No.1 and 2 have committed unfair trade practice by receiving the amount from the complainant for allotment of villa.

7.             On the other hand learned counsel for the OP No.3 has argued that OP No.3 has no concern with OP No.1 and 2. No agreement was executed between OP No.3 and the complainants. There is no deficiency in service or unfair trade practice on the part of OP No.3.

8.             We have gone through the pleadings, evidence and written as well as oral submission of counsel for the parties. OP No.1 and 2 have failed to appear in this Forum to contest the complaint despite due publication. Their non appearance amounts to admission of the averments made in the complaint. Moreover, refund of the deposited amount of Rs.1,75,000/- by OP No.1 and 2 to the complainants vide cheque dated 27.12.2011 shows that these OPs were deficient in service. However the complainants returned this amount and again on 04.04.2012 the OP No.1 and 2 sent two cheques to the complainant i.e. one for Rs.1,75,000/- and the other for interest amount of Rs.41,912/-.  The complainants did not accept these cheques and returned the same to the OPs. This conduct of the OPs clearly shows unfair trade practice and deficiency in service on their part. Thus, the complainants are entitled to refund of their deposited amount from OP No.1 and 2. However, from the pleadings and evidence it is found that OP No.3 has no role to play in the entire transaction between the complainants and OP No.1 and 2. Thus, the complaint against OP No.3 deserves to be dismissed.

9.             Accordingly, we direct the OP No.1 and 2 to refund to the complainants the deposited amount of Rs.1,75,000/- (Rs. One lac seventy five thousand only) alongwith interest @ 8% per annum from the date of deposit i.e. 19.10.2009, till its actual realisation. We also find that the complainants are entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony caused to the complainants due to negligent act of the OP No.1 and 2 alongwith litigation cost of Rs.5,000/-  (Rs. Five thousand only).  The present complaint stands partly allowed accordingly.            

                The OP No.1 and 2 are further directed to comply with the order of this Forum within 45 days from the date of receipt of this order.

                The arguments on the complaint were heard on 19.09.2016 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: 03.10.2016    

                                         (A.P.S.Rajput)           

President

        (Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

Member