STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Ashwani Kumar Gupta, S/o Sh. Raj Kumar Gupta, r/o # 801, Sector 11, Panchkula

……Appellant

                           V E R S U S

M/s Ansal Housing and Construction Ltd., through its Managing Director, SCO No. 817, First Floor, NAC Manimajra, U.T., Chandigarh.

2^nd Address:-

1. 15 UGF, 21 Barakhamba Road, Indraparakash Building, New Delhi.

2. Shalabh Makkar, Executive Manager, M/s Ansal Housing and Construction Ltd., SCO No. 817, First Floor, NAC Manimajra, U.T., Chandigarh.

3. Hardeep Singh, C/o Prime Properties, SCO No. 909, Top Floor, NAC Manimajra, U.T., Chandigarh.

              ....Respondents.

Appeal U/s 15 of Consumer Protection Act, 1986

BEFORE:             HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                             MRS. NEENA SANDHU, MEMBER.

Argued by:     Sh. Neeraj Sharma, Advocate proxy for Sh. Rajeev Duggal, Advocate for the appellant.

       Sh. Rajneesh Malhotra, Adv. for respondents      No.1 and No.2.

       Sh. Hardeep Singh, respondent No. 3 in person.

PER  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT

1.             This appeal, for the enhancement of compensation, is directed against the order dated 27.05.2010 rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which it directed OP-1 and OP-2 (now respondents) to pay to the complainant, Rs.1,17,399/- as interest, calculated on Rs.21,00,000/- @10% p.a., from 03.01.2008 to 16.05.2010 [(i.e. from the first date of receipt of Rs.7,00,000/- by the complainant upto the last post dated cheque issued to the complainant (now appellant) by OP No.1 and OP No.2)]. OP Nos.1 and 2, were also directed to pay Rs.25,000/- as compensation, to the complainant towards physical and mental harassment suffered by him, alongwith Rs.5,000/- as cost of litigation. It was also directed that the said order be complied with within 30 days, from the date of receipt of certified copy of the same, failing which OP No.1 and OP No.2 would be liable to pay the entire amount of Rs.1,17,399+25,000= Rs.1,42,399/- alongwith penal interest @ 18% from the date of filing of the complaint i.e. 27.11.2009, till the amount was actually paid to the complainant, besides payment of costs of litigation of Rs.5,000/-.

2.             The facts, in brief are that the complainant booked a plot measuring 500sq. yards for Rs. 35,00,000/- with OP Nos.1 and 2 through OP-3 (authorized dealer/agent of OP Nos. 1 and 2) and paid a sum of  Rs.21,00,000/-, which was duly received by them, vide receipt nos. 379706, 383553 and 387752. As per the terms and conditions of the application form, the offer of the plot, was to be made within 9 months, of the registration of the application, by OP Nos.1 and 2. After that, the complainant had visited the office of the OPs time and again, to know the status of the project, but they did not give any satisfactory reply. After making enquiries, the complainant came to know, that the OPs had not taken any steps, to develop the project, as projected by them. After knowing the intentions of the OPs, he sought refund of the amount of Rs.21,00,000/-, alongwith interest, from the OPs because, as per the terms and conditions of the registration application, it was clearly mentioned, that if OP Nos.1 and 2, were not in a position, to make  an offer of allotment for a plot, within a period of 12 months, from the date of registration application, then, the complainant shall have the right to withdraw the money, and could ask for refund by giving 30 days notice, alongwith interest calculated @10% p.a. On 05.09.2009, the OPs, refunded the amount of Rs.4,00,000/-, in cash to the complainant and  8 post dated cheques for the balance amount were also handed over to him. Later on, when the complainant calculated the amount, it transpired that, the OPs had illegally, deducted a sum of Rs.1,17,399/-, as commission, from the total amount, whereas, the actual amount, which was to be paid by the OPs, was Rs.24,68,258/- but they had paid only Rs.23,50,859/- to him and that too, through post dated cheques. It was further stated, that the aforesaid acts of the OPs, amounted to deficiency,  in   service,  and  unfair  trade  practice. When the grievance of the complainant was not redressed, left with no other alternative, he filed a Complaint under Section 12 of the Consumer Protection Act,1986 (hereinafter to be called as the Act only).

3.             In their written reply, OP Nos.1 and 2, admitted the booking of plot and receipt of a sum of Rs.21,00,000/-, from the complainant. It was stated that the complainant had failed to deposit the full amount of Rs. 35,00,000/-, as per the schedule of payment plan, and therefore, condition no. 5, under the heading of Notes in the application was violated by him. It was further stated that, the request of the complainant, for refund was forwarded to the head office, and on approval therefrom, the amount of Rs.23,00,000/-, which included interest @10% p.a., was paid to the complainant through post dated cheques, which was accepted by the complaint, without any protest. It was further stated that, as per their calculation, the interest came to be Rs.68,250/-. It was further stated that, the OPs were ready to return the amount of Rs.68,250/- to the complainant, but the complainant had refused to accept the same. The OPs wanted to complete the project, in time, but some necessary Government approvals were not forthcoming and, therefore, the project could not be developed further. It was stated that, the OPs were neither deficient, in service nor indulged into unfair trade practice.

4.             Despite service, neither OP-3 nor his duly authorized representative appeared, on his behalf.  Accordingly OP-3 was proceeded against ex-parte. 

5.             The Parties led evidence, in support of their case.

6.             After hearing the Counsel for the parties, and, on perusal of the record, the District Forum allowed the complaint, and granted the relief, to the complainant, referred to, in the opening para of the instant order. 

7.             Feeling aggrieved, the instant appeal, was filed by the Appellant/complainant for enhancement of compensation. 

8.             We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

9.             The Counsel for the appellant, submitted that, the refund of the amount was made to the complainant, after long delay. He further submitted that, during this period, there was too much escalation, in the prices of the immoveable property. He further submitted that, the District Forum, did not take into consideration, the question of escalation of prices and, as such, did not award any compensation for such escalation. He further submitted that, even the compensation awarded to the complainant/appellant, for mental agony, and physical harassment, was too meagre, to meet the ends of justice. The Counsel for the appellant further submitted that the order of the District Forum be modified, and the compensation be enhanced.

10.           On the other hand, the Counsel for the respondents, submitted that the amount of Rs.23,00,000/-, alongwith interest was refunded to the complainant, even before he filed the complaint. It was further submitted that, thus, there was no reason, on the part of the District Forum, to grant compensation, in respect of escalation of prices of the property, in the meanwhile. He further submitted that the order of the District Forum being legal and valid, is liable to be upheld.

11.           After giving our thoughtful consideration, to the rival contentions, raised by the Counsel for the parties, and on going through the evidence, and record, we are of the considered opinion, that the appeal is liable to be dismissed, for the reasons to be recorded hereinafter. Vide Annexure C-1(Registration application with terms and conditions), the complainant had booked a plot with OP Nos.1 and 2 through OP-3 (authorized dealer/agent of OP Nos.1 and 2). When he came to know, that the OPs had not taken any steps to develop the project, as projected by them, he sought refund of the amount deposited by him, to the extent of Rs.21,00,000/- alongwith interest @10% p.a. According to the complainant, as per the calculations C-10/A, the refundable amount, alongwith interest @10% per annum, came to be Rs.24,68,258/- but the OPs had paid only Rs.23,50,859/- and illegally deducted a sum of Rs.1,17,399/-. Annexure C-10/A, depicts the full and final settlement of amount, between the parties, which was accepted by the complainant, under protest. In our considered opinion, if the full and final settlement, arrived at, between the parties, is accepted, by one of the parties, under protest, then that settlement cannot be said, to be legally complete or final. In these circumstances, the full and final settlement, under protest, did not bind the complainant. No doubt, the OPs gave an offer to pay Rs.68,250/- , i.e. the amount of interest, which they had not paid, but according to them, it was not accepted by the complainant.  The District Forum was right in holding that, the interest calculated by the complainant vide Annexure C-10/A was correct. Annexure C-1, clearly depicts, that the offer of the plot was to be given to the complainant, in about 9 months, from the date of application of registration. In case, the Company was, not in a position, to make offer of allotment of a plot within the period of 12 months, from the date of application, the complainant had the right to withdraw the money and ask for refund, by giving 30 days notice alongwith interest calculated at 10% per annum. In these circumstances, the complainant was entitled for refund of Rs.21,00,000/-, alongwith interest @10% per annum, from the date of receipt of the first installment of Rs.7,00,000/- i.e. from 03.01.2008. In this manner, the amount of interest, on calculation, came to be Rs.1,17,399/-, as is depicted by the complainant in Annexure C-10/A. The the District Forum was, thus, right in holding that the amount of Rs.1,17,399/-, was illegally and arbitrarily withheld by the OPs, and, as such, they were liable to pay the same, to the complainant. The order of the District Forum, to this extent, is correct.

12.           Now, coming to the factum of, escalation of prices, in the meanwhile, it may be stated here, that no convincing evidence, has been produced by the appellant/complainant, in this regard, so as to enable this Commission, to come to the conclusion, as to what was the actual escalation of prices, during the period, in question. Even otherwise, almost the entire amount, which had been deposited, by the complainant, alongwith 10% interest p.a., had been refunded by the OPs, before the complaint was filed. The dispute was only, with regard to the, calculation of interest; and the date, from which it was to be calculated. In these circumstances, it could not be said that the intentions of the OPs were not bonafide. It was, under these circumstances, that the District Forum came to the conclusion, that no compensation for the alleged escalation of prices, in the meanwhile, could be granted.

13.           In view of the above discussion, it is held that, the order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. The order of the District Forum, being legal and valid, is liable to be upheld.

14.           For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs quantified at Rs.5000/-.

15.           Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.

Pronounced.

4^th May 2011.

                                                                                                 Sd/-

[JUSTICE SHAM SUNDER]

        PRESIDENT

                 Sd/-                        

[NEENA SANDHU]

                                                                MEMBER

Rg