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

                                  Consumer Complaint No.156 of 2015

                                 Date of institution:          07.04.2015

                                                        Date of Decision:            21.12.2015

1.     Rajesh Singla son of Roop Chand Singla, resident of H.No.673, Sector 8, Panchkula.

2.     Sonia Singla wife of Rajesh Singla son of Roop Chand Singla, resident of H.No.673, Sector 8, Panchkula.

    ……..Complainants

                                        Versus

1.     M/s. Country Colonizer Private Limited, Corporate Office C-1, Sector-3, Noida 201301 (U.P.) through its authorised representative.

2.     M/s. Country Colonizer Private Limited, Registered Office P.O. Rayon & Silk Mills, Adjoining Coca Cola Depot G.T. Road, Chheharta, Amritsar (Punjab) through its authorised representative.

3.     M/s. Country Colonizers Private Limited, through its authorised representative, Sector 85, Sahid Azam Singh Nagar, Mohali.

4.     GSC Estate through its Representative Sunil Goyal, SCO No.3015-16, Sector 22-D, Chandigarh

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Gaurav Sharma, counsel for the complainants.

                Shri Tejeshwar Singh, counsel for OP No.1 to 3.

                OP No.4 exparte.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainants have filed the present complaint seeking following directions to the Opposite Parties (for short ‘the OPs’) to:

(a)    refund them Rs.5,00,000/-  alongwith interest @ 18% per annum.

(b)    pay her Rs.1,00,000/- as compensation for mental harassment and unfair trade practice.

(c)    pay him Rs.10,000/- as litigation charges.

                The case of the complainants is that on the allurement of OP No.4, they booked a residential unit/apartment No.102 of area 1990 sq. ft. Tower Freesia in ‘Wave Garden’  at Sector 85, Sahid Azam Singh Nagar, Mohali, the project of the OPs vide application form dated 20.06.2012. As per the terms of the application form, provisional allotment letter was to be issued within a period of 30 days of the application form which has never been sent to the complainants.  No agreement was entered into, signed and sent by the OPs nor any contract exists between the complainants and the OPs. Then in August, 2012 the complainants requested the OPs to refund the booking amount of Rs.5,00,000/-.  The OPs sent letter for finalization of payment plan (a) Subvention plan (b) Construction Linked Plan on or before 25.09.2012. Upon this the complainant requested the OPs orally to refund the paid amount of Rs.5,00,000/-. The OPs then sent demand notice dated 17.11.2012 to deposit Rs.24,08,989/- on or before 07.12.2012. The complainants again informed the OPs that they do not want to continue with the project and requested to refund their deposited amount.  The OPs again vide letter dated 05.04.2013 informed that the complainants that if the complainants require bank funding, they may approach the OPs or the banks namely HDFC Ltd and India Bulls HFL. Then in September, 2013 the OPs sent final notice to the complainants for cancellation of allotment of unit No.WG/F/102 at Sector 85, Wave Estate, Mohali and demanded Rs.24,07,988/- on or before 28.09.2013. The complainants again requested the OPs that they are not interested to continue with the project and sought refund of the amount with interest of 8% P.M.  Instead of refunding the amount, the OPs again sent letter dated 21.06.2014 regarding cancellation and it was also mentioned in the letter that amount of Rs.37,52,042/- was to be paid by the complainants against the installments.  The complainants sent letter dated 24.01.2015 to the OPs and requested to refund the booking amount but till date the OPs have not refunded the booking amount.  The complainants also sent e-mail to the OPs to refund the amount but till date the OPs have not refunded the amount. With these allegations the complainant has filed the present complaint.

2.             OP Nos.1 to 3 in their written statement have pleaded in the preliminary objections that the complainants does not fall within the definition of consumer as the complainants never intended to purchase the flat in question for residential purpose but they booked the flat as an investment for commercial purpose being the property dealers.  The complainants have their residence in Sector 8 Panchkula. This Forum does not have the territorial jurisdiction to entertain and decide the complaint.  The complainants are making requisite enquiries decided to buy the residential unit/apartment vide application dated 20.06.2012. After this the complainants were informed that the provisional allotment would be made within 30 days and the complainants were further asked to deposit the amount as required in construction linked plan but despite repeated demands, the complainants have miserably failed to deposit the amount.  As per terms of the application form, the complainants undertook to execute/sign apartment allottee(s) arrangement, together with all the annexures and pay the amounts due.  On failure of the complainant to execute the Apartment Allottee (s) Arrangement and pay the amount due within the stipulated time, then his application shall be treated as cancelled and application money shall be forfeited and offer of provisional allotment shall be deemed to be rejected. Reminders as well as final notice for cancellation were sent to the complainant on 13.09.2013 and thereafter execution of cancellation was done on 21.06.2014 and public notice was published in the newspaper on 14.02.2015.  On merits, it is pleaded that complainant is not a consumer as defined under Section 2 (1) (d) (i) of the Consumer Protection Act. The complainants never contacted the OPs nor did staff of the OPs allure them to purchase the plot in the project. The complainant submitted application for purchase of the plot after making requisite enquiries. Intimation for provisional allotment was given on telephone to the complainant as well as to OP No.4 within 30 days of the offer of provisional allotment and further the complainant was asked to deposit the amounts as required under construction linked plan. The complainants have sought time to arrange the money.  Due to delay in making payment the OPs have offered for change of option of payment plan to the complainants vide letter dated 10.09.2012 but there was no response received from the complainants.  The complainants never requested for refund of the amount.  The OPs gave another opportunity to the complainants vide letter dated 05.04.2013 to make the payment.  Final notice was rightly send to the complainants demanding an amount of Rs.24,07,988/- which was outstanding.  Then the notice of execution of cancellation dated 21.06.2014 was rightly sent to the complainant asking them to make payment of Rs.37,52,042/- as the outstanding payment but the complainants have failed to make the payment without any rhyme and reasons.  The complainants are guilty of causing an inordinate deliberate and intentional delay in making timely payments.  The OPs have for the first time received e-mail dated 20.02.2015 from the complainant No.1 which was duly replied by the OPs vide e-mail dated 05.03.2015. The complainants are bound by the terms and conditions of the application form dated 20.06.2012.  Thus, denying any deficiency in service or unfair trade practice on their part, OP Nos.1 to 3 have sought dismissal of the complaint against them.

3.             Registered notice sent to OP No.4 was duly delivered on it on 09.05.2015 as per the report of India Post. None appeared for it and thus it was proceeded against ex-parte vide order dated 10.06.2015.

4.             To succeed in the complaint, the complainants tendered in evidence affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-11.

5.             Evidence of OP No.1 to 3 consists of affidavit of Yadvinder Singh Bains, their President Ex.OP-1/1.

6.             We have heard learned counsel for the parties and have also gone through the written arguments submitted by them.

7.             It is admitted fact that the complainant has filed an application dated 20.06.2012 Ex.C-11 i.e. application for provisional allotment of an apartment in the upcoming Group Housing Project “Wave Gardens” at the Wave Estate, Sector 85, SAS Nagar being developed by the OPs. As per application, the complainant has deposited Rs.5.00 lacs with the Ops as registration amount. As per the complainant the OPs were required to issue provisional allotment letter within 30 days thereafter i.e. from the date of application and such provisional allotment letter was never issued to him. The OPs have never sent him any documents of provisional allotment letter as well as agreement to sell and instead has been issuing demand notices for payment of remaining amount for Unit No. F-102, as per payment plan, i.e. the subvention plan/construction linked plan to be opted by the complainant as per Ex  C-2 dated 10.09.2012, Ex-C-3 dated 17.11.2012, Ex C-4 dated 05.04.2013. The complainant has never responded to these demand notices as he has not been issued the provisional allotment letter and agreement to sell by the OPs. Without any document i.e. the provisional allotment letter and agreement to sell, which was obligatory on the part of the OPs to provide to the complainant, the OPs of their own whim and fancies have issued the cancellation of allotment letter dated 13.09.2013 Ex C-5, followed by execution of cancellation  dated 21.01.2014 Ex C-6. The complainant did not respond to any of the unilateral notices issued by the OPs and rather asked for the refund of the booking amount vide his request letter dated 24.01.2015 Ex C-7. The said request letter is duly received and acknowledged by the OPs as is evident from the office seal stamp, signatures and date mentioned on the body of Ex C-7. Since the OPs did not respond to the same, therefore, the complainant sent various emails dated 12.02.2015 Ex C-8 and  20.02.2015 Ex C-9 to the OPs as reminders. Finally the OPs responded to the request of the complainant through email Ex C-10 wherein the OPs declined the request of the complainant on the ground that there is no such refund policy. Aggrieved of the act of the OPs, being unfair trade practice, the complainant has filed the present complaint.

8.             The OPs have refuted the allegations of the complainant and reaffirmed their stand of non refund of the deposited amount as the said non refund is as per the policy of the company.

9.             The issue involved in the present complaint is whether the OPs can retain the deposited amount of Rs. 5 lacs as registration money, in the event when they themselves have failed to issue any provisional letter within 30 days from the receipt of the deposited amount on 20.06.2012 as per Ex C-11.

10.           Perusal of Ex C-11 clearly shows that once the developer has accepted the application, he shall provisional allot an apartment upon execution of  Apartment Allottee(s) Arrangement within 30 days from the date of intimation of provisional allotment is received by the applicant/complainant and thereafter the complainant was to pay all further installments and monies/dues as stipulated in the payment plan annexed with the application Ex C-11.

11.           The OPs have  failed to show on record the intimation of provisional allotment having been made/delivered to the complainant after 30 days from the  receipt of the booking amount and till date. Therefore, the question of signing of the apartment agreement or payment of further installments and monies due as per payment plan by the complainant does not arise.

12.           Since the OPs have failed to discharge their obligation they were not entitled to issue any demand notices and in the event of non payment of amounts mentioned in the demand notices by the complainant, the cancellation of the flat and execution of the cancellation letter Ex C-6. Thus all the letters i.e. Ex C-2 to Ex C-6 issued by the OPs are beyond the rights of the OPs as mentioned in the application form Ex C-11.

13.           A perusal of Ex C-10 makes it evident that declining the refund request, by taking the shelter of some policy without adducing any supporting evidence of such policy on record, is merely a bald plea taken by the OPs for  depriving   the valuable property of the complainant i.e. Rs. 5 lacs .

14.         We are of the considered opinion that OPs cannot be permitted to take benefit of their own wrongs as they have failed to show the issuance and delivery of provisional allotment letter to the complainant. Therefore, the retention  of Rs. 5 lacs of the complainant w.e.f. 23.06.2012, when the payment was made to the OPs by the complainant vide cheque No. 512024 dated 23.06.2012 drawn on Bank of Baroda in favour of the OPs as registration amount.

15.           Thus the acts of the OPs, i.e. illegally retaining the deposited amount of the complainant is an act of unfair trade practice and further not releasing the amount despite having received the  request for refund dated 24.01.2015 Ex C-7 is an act of deficiency in service on the part of the OPs. 

16.           Therefore the complaint deserves to be allowed and the complainant deserves to be compensated for mental agony, harassment and financial loss due to the acts of omission and commission of the OPs.

17.           The complaint, therefore, is allowed against all the OPs with the following directions to the OPs:

(a)    to refund to the complainant the total deposited amount of Rs.5 lacs  (Rs. Five  lacs only) with interest thereon @ 12% per annum w.e.f 23.06.2012 till its realisation. 

(b)    to pay to the complainant  lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

December 21, 2015.     

                                   (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                        Member