Punjab

Ludhiana

CC/15/664

Balwinder Marwaha - Complainant(s)

Versus

M/s Dhoenix Infra (P) Ltd. - Opp.Party(s)

R.K.Bhandari Adv.

01 Jun 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 664 of 06.11.2015

Date of Decision            :   01.06.2016

 

Balwinder Marwaha s/o Sh.Joginder Pal, r/o H.No.B-IX-335/4, Mohalla Bazarian, Chauri Sarak, Division No.3, Central Post Office, Ludhiana-141008.

 

….. Complainant

                                                         Versus

 

1.M/s. Phoenix Infra (P) Ltd., Regd. Office:SCO NO.3, 1^st and 2^nd Floor, Model Town Extension, Ludhiana-141002, through its authorized signatory Pranav Puri.

2.Pranav Puri, authorized signatory, M/s. Phoenix Infra (P) Ltd., Regd. Office:SCO NO.3, 1^st and 2^nd Floor, Model Town Extension, Ludhiana-141002.

 

…Opposite party

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.R.K.Bhandari, Advocate   

For OPs                         :        Ex-parte

 

PER G.K.DHIR, PRESIDENT

 

1.           Complainant Sh.Balwinder Marwaha, filed complaint under Section 12 of Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) against Ops by claiming that he booked with OPs a residential flat/villa/plot No.PP/A/First/103 measuring 1465 sq.feet in ‘A’ Tower in proposed Phoenix Paradise at Pakhowal Road, Ludhiana by depositing Rs.4,99,040/- vide receipts No.30 dated 25.11.2013 and No.36 dated 2.1.2014. Rs.1,55,000/- through receipt of 25.11.2013, but Rs.3,44,040/- through receipt of 2.1.2014 was deposited by the complainant with OPs. Despite assurances that quality houses will be provided and due facilities will be provided,  construction work was    not carried out by the OPs on the site. OPs refused to entertain the request of the complainant. Number of phone calls were given to Mr.Pranav Puri(OP2). On account of persistent delay in executing the dream city, complainant stood harassed and as such, he approached Ops. Op2 for self and on behalf of OP1 as authorized signatory ultimately agreed for refund of the deposited amount of Rs.4,99,040/- to the complainant. In discharge of said pre-existing legal liability, cheque No.000449 dated 18.8.2015 for amount of Rs.4,99,040/- was issued. However, when the said cheque presented for clearance, the same stood dishonoured and was returned with memo of dishonor dated 15.9.2015 containing  the remarks “Funds Insufficient”. Intimation qua dishonor of        the cheque was given to the Ops, but they turned offensive behavior wise. Separate complaint under Section 138 of Negotiable Instruments Act was filed against OPs on account of dishonor of the cheque and this complaint filed by pleading deficiency in service on the part of OPs. Prayer made for saddling OPs with extra ordinary costs and even refund of Rs.4,99,040/- sought. Compensation for mental harassment and agony of Rs.10 lac with interest @18% p.a. from the date of refund also sought.

2.                Notice of the complaint issued to the OPs, but they did not appear and as such, they were proceeded against ex-parte.

3.                Complainant in ex-parte evidence tendered his affidavit Ex.CW1/A along with documents Ex.C1 to Ex.C10 and thereafter, his counsel closed the evidence.

4.                Written arguments not submitted by the complainant, but oral arguments alone addressed and those were heard. Records gone through carefully.

5.                 Perusal of affidavit Ex.CW1/A of complainant along with letters Ex.C1 and Ex.C2 establishes as if flat No.PP/A/First/103(3BHK) in project known as “Phoenix Paradise”(International Heights of R.C.Colonizer), Ludhiana was booked for complainant. However, for personal reasons, complainant prayed for cancellation of the booked flat through letter Ex.C3, in pursuance of which, cheque No.000449 dated 18.8.2015 was issued for an amount of Rs.4,99,040/- is a fact borne from letter Ex.C4. Through letter Ex.C4, complainant acknowledged the booking be treated as cancelled. Affidavit cum undertaking Ex.C5 was submitted by the complainant showing the amounts of payment. Copy of dishonoured cheque issued by the Ops in discharge of liability of refunding the booked amount is produced on record as Ex.C6. Dishonour of the cheque proved by copy of return memo of HDFC Bank Ex.C7. As that cheque remained dishonored and that is why the complainant issued legal notice Ex.C8 through counsel for initiating proceedings under Section 138 of Negotiable Instruments Act. Remedy available under the Negotiable Instruments Act stands on different footings, than that of remedy of filing of consumer complaint in respect of deficiency in service because proceedings under Section 138 of Negotiable Instruments Act are criminal in nature but proceedings before the Consumer Forum are Civil/Semi Civil in nature. In case, separate complaint under Section 138 of Negotiable Instruments Act filed along with consumer complaint, then relief in consumer complaint also liable to be granted is the crux of the case law in law laid in case of P.Appakunhi vs. V.V.Khalid and others-bearing Complaint Case No.10/169, decided on 4.12.2012 by the Hon’ble Consumer Disputes Redressal Forum KasaraGod. So, this consumer complaint is certainly maintainable even our view.

6.                As despite assurance of refund of booked amount of Rs.4,99,040/-, the same actually has not been refunded by the OPs because of dishonouring of issued cheque and as such, there is deficiency in service on the part of OPs, particularly, when this amount not paid even after issue of legal notice Ex.C8 through postal receipts Ex.C9 and Ex.C10. So, virtually the complainant had been harassed by Ops, due to which, he is entitled for compensation for     mental harassment along with litigation expenses also.

7.                Therefore, as a sequel of the above discussion, complaint allowed ex-parte by directing OPs to pay Rs.4,99,040/-(being the amount deposited by the complainant at the time of booking of the flat with OPs) with interest @8% p.a. from the date of complaint namely 6.11.2015 till payment. Compensation for mental agony and sufferings of Rs.25,000/- and litigation expenses of Rs.5000/- more allowed in favour of complainant and against OPs. Compliance of directions qua payment of awarded compensation for mental agony as well as litigation expenses be made by OPs within 30 days from the date of receipt of copy of order. Copies of order be supplied to the parties free of costs as per rules. 

8.                File be indexed and consigned to record room.

                                                            

                      (Babita)                                     (G.K. Dhir)

            Member                                        President

Announced in Open Forum

Dated:01.06.2016

Gurpreet Sharma.