DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.433 of 2015
Date of institution: 28.08.2015 Date of decision : 03.10.2016
Abhinav Mittal son of Anil Mittal, resident of House No.98, Sector 12, Panchkula.
……..Complainant
Versus
M/s. Janta Land Promoters Pvt. Ltd., SCO No.39-42, Sector 82, SAS Nagar, Mohali Punjab through its Managing Director.
………. Opposite Party
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 Gaurav Sharma, counsel for the complainant.
Shri Gaurav Jindal, counsel for the OP.
ORDER
By Ajit Pal Singh Rajput, President
Complainant, Abhinav Mittal son of Anil Mittal, resident of House No.98, Sector 12, Panchkula has filed the present complaint against the Opposite Party (hereinafter referred to as the OP) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:
The complainant who was searching a residential apartment to stay, fell prey to the tall claims made by the staff of the OP regarding the project and opted for purchase of residential apartment in the project namely FALCON
View, Sector 66-A, Mohali of the OP. The apartment was priced at Rs.3600/- per sq. feet and total area of apartment was 2480 sq. feet. The total value of the flat was Rs.97,05,840/- which included other charges. The complainant was made to sign the application form which was unilateral document and the terms of the same were not explained to him. The complainant paid a sum of Rs.5.00 lacs and he was also told that the possession of the flat shall be handed over within 30 months of the application form. He was assured that the project was approved by the Govt. and the builder has all the requisite permissions, as such, the apartment was to be offered complete in all regard by 26.01.2015. The complainant received letter dated 12.10.2012 from the OP asking him to make the payment of next installments which was accordingly made by the complainant by depositing sum of Rs.4,20,387/- and receipt dated 21.12.2012 was issued by the OP. The complainant visited the site on number of occasions but found that the site did not have any basic amenities, such as road, electricity etc. and he also went to office and requested to show the requisite approvals/permissions including maps of the project, however, no satisfactory response was given by the OP. The complainant never received the allotment letter. On the contrary, the OP has been sending letters/notices to him for deposit of the balance money and also receiving telephonic calls from the OP that the amount deposited by him shall be forfeited and the allotment shall be cancelled. The Opposite Party has failed to provide the basic amenities at the site even after the lapse of three and half years from the date of filling the application form such as car parking, street light, club area, electrical poles besides all the completion/approvals from the Govt. Departments and authorities. The complainant on number of occasions requested the OP to refund Rs.9,20,387/- deposited by him in the year 2012 alongwith interest but inspite of legal notice sent through registered post dated 16.06.2015 the OP neither replied nor refunded the payment alongwith interest @ 12% per annum from the date till its realisation. The acts of omission and commission on the part of the Opposite Party amount to deficiency in service and unfair trade practice. Hence the complainant for giving direction to the OP to refund the deposited amount of Rs.9,20,387/- alongwith interest @ 12% per annum from the date of deposit till realisation besides payment of Rs. Two lacs as damage on account of mental tension, agony and harassment caused to him and Rs.51,000/- as litigation expenses.
3. The complaint is contested by the OP by filing reply, in which it had raised certain preliminary objections, inter alia, that the complainant is not a consumer as defined under the Consumer Protection Act; the complainant has refused for allotment of the flat after 30 days of issuance of allotment letter; the complaint is also barred by limitation as the complainant has failed to mention as to when the cause of action arose in his favour; complicated/disputed question of facts are involved in the complaint which cannot be decided by this Forum. On merits, the OP has pleaded that the complainant signed the application form after going through the same. The project of the OP has been duly approved by the Govt. and is also having requisite permissions. Allotment letter dated 29.07.2013 was duly sent to the complainant. Construction work is going on at the site the project has not been left in lurch by the OP. However, the project has been delayed due to circumstances beyond the control of the OP and also due to non deposit of installments by the complainant and other allottees. The OP has requested the complainant to deposit balance installments. Construction upto 12th floor has been completed and furnishing work and other amenities like roads, parking spaces etc. shall be constructed before handing over the apartments to the allottees. As per clause 2.9 of the allotment letter, 10% of the sale consideration alongwith brokerage charges, if any, shall be forfeited which comes to Rs.8,92,800/- and Rs.27,857/- has been paid to the Govt. as service tax. As such nothing remains to be refunded to the complainant and the OP has sought dismissal of the complaint.
3. In order to prove the case, the complainant tendered in evidence his affidavit Ex. CW-1/1; copies of application form Ex.C-1; receipts dated 27.07.2012 and 21.12.2012 Ex.C-2 & C-4; letter dated 12.10.2012 Ex.C-3; letters Ex.C-5; legal notice dated 16.06.2015 Ex.C-6; postal receipt Ex.C-7 and 18 photographs of spot/site Ex.C-8. In rebuttal the OP tendered in evidence affidavit of H.B. Garg, its General Manager Ex.OP-1/1; copies of allotment letter Ex.OP-1; approvals of the project Ex.OP-2; letters to complainant Ex.OP-3 and show cause notice Ex.OP-4.
4. It has been argued by learned counsel for the complainant that even after receipt of payment of Rs.9,20,387/- the OP had not been able to show requisite approvals/permission to the complainant and no allotment letter was issued to the complainant. The project has been left in lurch by the OP. There is no construction activity taking place at the site and the OP has even failed to provide the basic amenities. He pleaded that it is established from the material placed on record by way of evidence, that the OP had committed deficiency of service. Thus, the complainant sought refund of the deposited amount alongwith interest from the OP which the OP had failed to refund.
5. On the other hand, the learned counsel for the OP while relying upon the decision of Hon’ble Punjab State Consumer Disputes Redressal Commission in case titled as Neelam Chhabra & Anr. Vs. Janta Land Promoters Ltd., Consumer Complaint No.159 of 2013 decided on 16.01.2015 has argued that the complainant is not a consumer as he himself admitted in the complaint that he has not received the allotment letter from the OP. Once the complainant himself admits that he has not received the allotment letter, then he cannot be treated as consumer of the OP. However, facts of the case Neelam Chhabra & Anr. Vs. Janta Land Promoters Ltd. (supra), are distinguishable from the facts of the present case as in this complaint the OP itself has pleaded in the written statement that the allotment letter dated 29.07.2013 i.e. Ex.OP-1 was duly issued to the complainant and when he had received other communications from the OP at the same address on which the allotment letter was sent, it was not possible that he had not received the allotment letter. Thus, it is held that the complainant is consumer of the OP.
It has further been argued by learned counsel for the OP that the complainant had failed to pay the installments and now seeking refund. He argued that it is established from show cause (Ex.OP-4) that the complainant had defaulted in depositing the payments and this fact is admitted in the pleadings of the complainant. Learned counsel argued that, As per clause 2.9 of the allotment letter, the OP was entitled to forfeit 10% of the sale consideration alongwith brokerage charges, if any, comes to Rs.8,92,800/-. Besides this the OP had paid Rs.27,857/- as service tax to the Govt. Thus, the complainant was not entitled to any amount from the OP.
6. After hearing the learned counsel for the parties and going through the pleadings, evidence and written arguments of the parties, it is that the allotment letter dated 29.07.2013 i.e. Ex.OP-1 was duly issued to the complainant. It is also established from the permission documents i.e. Ex.OP-2 (Colly) placed on record that the OP was having the requisite permissions. It is further proved from the show cause notice alongwith reminders of the payment (Ex.OP-3(Colly) that the complainant had been receiving the communications at his given address from the OP. It is also proved from the photographs i.e. Ex.C-8 (Colly) that the OP has not been able to honour his promise with regard to requisite infrastructure/amenities and failed to deliver the possession to the complainant, thereby the complainant defaulted in depositing the installments.
7. It has come to our notice that in a case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh in First Appeal No.329 of 2015 decided on 01.08.2016, wherein the Hon’ble Punjab State Commission while relying upon the decision of Hon’ble National Commission in 2015(1) CPJ 514 (Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd.) has held in Para No.9 “that as the complainants were defaulter in not making the payment of installments; to which they had agreed, thus they were not entitled to any interest”.
8. Accordingly, in view of our aforesaid discussion and the judgment of Hon’ble State Commission, Punjab in case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh (supra), we direct the OP to refund the deposited amount of Rs.9,20,387/- (Rs. Nine lacs twenty thousand three hundred eighty seven only) to the complainant. We also find that complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony caused to the complainant due the negligent act of the OP and litigation cost of Rs.5,000/- (Rs. Five thousand only). The present complaint stands partly allowed.
The OP is further directed to comply with the order of this Forum within 45 days from the date of receipt of this order, otherwise the OP shall be liable to pay 8% interest per annum on the total cost awarded.
The arguments on the complaint were heard on 14.09.2016 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
