BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.420 of 2014

                                 Date of institution:            12.06.2014

                                              Date of Decision:            19.03.2015

Saroj Bala wife of Shailender Kumar, resident of House No.32/2, Sharma Estate, Lohgarh Road, Zirakpur, Tehsil Dera Bassi, District SAS Nagar (Mohali) 140603.

    ……..Complainant

                                        Versus

M/s. Chandigarh Royale City Promoters Pvt. Ltd., Zirakpur – Patiala Highway, Village Karala, District SAS Nagar (Mohali), Punjab and Corporate/Communication Office, adjoining main gate, Royale Estate, Zirakpur, District SAS Nagar (Mohali) through its Managing Director.

………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri A.B.Aggarwal, Member.

Present:     Shri Balwinder Singh, counsel for the complainant.

Shri Anish Garg, counsel for the OP.

(Mrs. Madhu P. Singh, President)

ORDER

                 The complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986, against the Opposite Parties (hereinafter called the OPs), alleging that the complainant and her husband considered the proposal of the OP and applied for a residential plot measuring 200 sq. yards at the proposed rate of Rs.13,000/- per sq. yard.  The complainant and her husband signed the Advance Registration Form Ex.C-1 on 30.07.2011 and submitted the same to the OP.  As per the stipulation on Page 3 of Ex.C-1, the OP was to refund the amount alongwith interest @ 12% on the request of the complainant if the OP did not get the license as a promoter within one year of filling of Advance Registration Form. The complainant paid Rs.1,00,000/- through cheque  dated 30.07.2011 vide receipt dated 05.08.2011 Ex.C-2. The OP did not handover any papers allocating/allotting any particular plot number or location of the plot.  The OP had also got signed an affidavit-cum-undertaking Ex.C-3  and as per Para 4 of the affidavit it has been stipulated that in case of cancellation of booking the complainant would be entitled to get refund of the earnest money from the OP as per the policy without any deduction and interest thereon. As per Para No.5 the complainant undertook that in case of cancellation, the complainant shall not file any claim against the OP. However, the complainant objected to Para No.5 of the affidavit. However, the OP assured that these were formalities and not to take it seriously. At the time of filling up the advance registration form, the OP assured the complainant that it had already acquired the land measuring 200 acres and the project shall be launched within six months on receipt of the licence as promoters and the plot shall be allotted to the complainant by the end of 8 months. It has been contended that as per page 3 of the advance registration form, there was a specific and categoric undertaking by the OPs that company will refund the booking amount to the customer with 12% p.a. interest on request of customer, if company does not get licence within 12 months from the date of booking. The complainant deposited various amounts with the OP from 07.11.2011 to 31.08.2012.  Thus, in all the complainant has paid a total sum of Rs.12,50,000/- to the OP. The complainant visited the site on more than one occasions but did not find the pace of development at the site. The OPs sent letter dated 25.02.2014 in which it was mentioned that an amount of Rs.16,47,500/-  was due towards the price of the plot and an amount of Rs.7,47,987/-  was due  as interest on account of delayed payments.  The complainant and her husband met Mr. Raman Garg Manager of the OP and expressed their inability in making the payment but he told them to make the payment within one week.  As the complainant  was not in a position to make the payment, she and her husband requested vide letter dated 07.03.2014 to Mr. Raman Garg to cancel their allotment and refund the deposited amount.  Since the OP had neither allocated any plot number nor the location of the proposed plot to be allotted to the complainant, the complainant sought refund of the already deposited amount alongwith interest @ 12% per annum.

                With these allegations, the complainant has sought directions to the OP to refund the amount of Rs.12,50,000/- along with interest @ 12% p.a. from the dates of deposit till the date of actual payment, to make payment of compensation for harassment, mental tension, agony to the tune of Rs.1,00,000/-; Rs.2,00,000/- as escalation in the construction costs and litigation expenses to the tune of Rs.22,000/-.

2.                The OP in its written reply by way of affidavit has pleaded that the complaint is time barred as the last payment was made by the complainant on 13.09.2012 and thereafter never demanded her money back. It has been averred that the complaint is not maintainable because the complainant does not fall within the definition of “consumer” as defined in Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986. It has been averred that the complainant is involved in the business of buying and selling properties. This Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint.  The OP has been authorized license by the GMADA for development of township. The complaint is bad for non joinder of necessary party. It has been averred that the OP got the change of land use from the Government of Punjab on 28.11.2011. It has been submitted that the project is under way and the OP is willing to allot the plot to the complainant subject to the payment of entire outstanding amount.  Thus, denying any deficiency in service on its part, OP No.1 has sought dismissal of the complaint.

3.             The complainant has tendered in evidence her affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-12.

4.             Evidence of the OP consists of affidavit of Raman Garg, its authorized representative Ex.OP-1/1 and copies of documents Ex.OP-1 OP-8.

5.            We have heard learned counsel for the parties and gone through the written arguments submitted by the complainant.

6.             Before we take up the complaint on merits, it will be appropriate to look into the preliminary objections raised by the OP that the complainant is not a consumer as the complainant has only submitted the Advance Registration Form and there is no concluded contract between the parties.  We are not in agreement with the contention and objection so raised by the OP in this regard. No doubt the complainant has submitted the advance registration form and in pursuance of the registration form has also paid a considerable amount of Rs.12,50,000/-  upto 31.08.2012 against the proposed rate of Rs.26.00 lacs for 200 sq. yard plot at the rate of Rs.13,000/- per sq. yard, against which the last receipt has been issued by the OP on 13.09.2012. So once the OP has accepted part payment out of the agreed amount of sale consideration, the complainant falls within the definition of Consumer Protection Act as enshrined under Section 2 (1) (d) (ii) of the Consumer Protection Act as the complainant has availed the services of the OP upon consideration.

8.             The grievance of the complainant is that as per terms mentioned in the advance registration form page-3 there is a categoric undertaking by the OP that  it will refund the booking amount or any paid upto amount to the consumer, with 12% P.A. interest on request of customer if company does not get license within 12 months from the date of booking. The advance registration form was filled on 30.07.2011 whereas the OP has failed to get the developer license within 12 months from the date of booking and hence the complainant is entitled to seek the refund alongwith agreed interest as stated above. The OP has failed to refund the deposited amount even till date which is an act of unfair trade practice and deficiency in service on the part of the OP.

9.             OP on the other hand denied deficiency in service and unfair trade practice on the ground that change of land user from agriculture to residential use was granted in its favour by the competent authority on 28.11.2011 Ex.OP-2 and further the Letter of Intent for setting up residential colony was issued in its favour on 03.08.2012 vide Ex.OP-3 and, therefore, there is no delay in procuring the license/sanction from the competent authority on its part. Therefore, there is no question of refund with interest. Rather the complex is under development as is evident from the photographs attached as Ex.OP-8 (colly) and the OP is willing and ready to give the possession to the complainant subject to clearance of outstanding dues.  The counsel for the OP has brought our attention to Ex.C-10 i.e. letter dated 07.03.2014 written by the complainant duly acknowledged by the OP wherein the complainant has shown her inability to deposit the remaining amount of consideration due to her own personal reasons and not due to lack of development by the OP. Therefore, the allegation of the complainant regarding lack of development/non availability of sanctions in favour of the OP within the stipulated time of 12 months from the date of application is false and baseless without any substance and is not maintainable.

10.            In order to show its bonafide the OP has even produced the copy of the CLU charges ledger account paid by it to the competent authority from 24.08.2011 to 28.11.2011 and further the license fee paid from 26.06.2012 to 22.04.2013 to show that the OP is following and abiding by the terms and conditions of the LOI and is not defaulter on any account.

11.            The complainant has not produced any binding term to show the entitlement of refund in the event when she herself is not in a position to deposit the sale consideration. Unable to deposit the remaining part of the agreed consideration by the complainant in no manner can be termed as deficiency in service or unfair trade practice on the part of the OP. The OP has shown through the photographs its bonafide act, as per terms of LOI, the road formation, drainage line, internal water supply lines, electricity supply lines, street lights, avenue plantation, assured water supply source etc. and the development activity is under progress. Therefore, on the basis of our above discussion, we do not find anything amiss on the part of the OP for not considering to the requests Ex.C-10 and C-11 of the complainant for refund of the deposited amount as the said requests are beyond the agreed terms of Advance Registration Form as well as terms and conditions governing CLU and LOI issued by the competent authority.

12.            Therefore, the complaint being devoid of any merit is hereby dismissed with no order as to costs.  Certified copies of orders be sent to the parties free of costs and thereafter the file be consigned to the record room.

Pronounced.                           

March 19, 2015.

                                                                 (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Mrs. Sonia Bansal)

Member