BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.244 of 2014

Date of Instt. 23.7.2014

Date of Decision :15.12.2014

1.Dr.Arvind Makker son of D.N.Makker C/o Chawla Heart Care, Apex Hospital Complex, 520-521, New Jawahar Nagar, Jalandhar.

2. Dr.Robina Makker wife of Dr.Arvind Makker son of D.N.Makker C/o Chawla Heart Care, Apex Hospital Complex, 520-521, New Jawahar Nagar, Jalandhar.

..........Complainants

Versus

1. M/s Millennium Real Estate Developers Pvt.Ltd, 104-Karan Chamber, Garha Road, Jalandhar-144001, through its Managing Director.

2. Lucent Consultants, FX-6, South City, Ludhiana, through its Authorized Person.

.........Opposite parties

Complaint under section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.CD Singh Adv., counsel for complainants.

Sh.PMS Narang Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainants have filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that complainant No.1 is Cardio Thoracic and Vascular Surgeon, possessing distinguished credentials and complainant No.2 is a Cardiac Anesthetist, both working at Chawla Heart Care, Jalandhar. The opposite parties through Mr.Kamal Attri, representative and Mr.Bhasoor, architect of opposite parties, approached complainant(s) and apprised that opposite parties are carving out a township under the name "The Green County", at University Road, Suchi Pind, Jalandhar. The said representative told the complainant(s) that township is build to global standard, offers premium independent homes, perfect mix of space and comfort, coupled with picturesque view of nature. It was further revealed by the said representative(s) of the opposite parties that most of the villas, homes, apartments have been booked and are hot selling and only few homes are left, thus in this manner, the opposite parties succeeded in accomplishing/buoyancy/enthusiasm/inquisitiveness/ curiosity of complainant(s) in the said township. The opposite parties in the presence of Mr.Harpreet Goldy, administrator Chawla Heart Care, Jalandhar, allured the complainant(s) to deposit some token money for getting preference in case complainant(s) chooses to purchase home in township, else, it shall be refunded promptly, for all intents and purposes, without any query/hassle. The complainant(s) were reluctant to give the said token money but on persistent requests of opposite parties and considering their representation as correct, true and bonafide, complainant No.1 paid Rs.4 Lacs, as token money, vide cheque No.720322 dated 30.12.2010, drawn on ICICI Bank, Ltd, Jalandhar, in the presence of Mr.Harpreet Goldy, Administrator, Chawla Heart Care, Jalandhar, on the assurance that the same is refundable. At any point of time, no agreement to sell was executed between opposite parties and the complainant(s), nor any earnest money was paid by complainant(s) to opposite parties, for the purchase of the house in the township nor any house was allotted to the complainant(s) by the opposite parties. Token money of Rs.4 Lacs was paid on the representation of the opposite parties and on the pre condition that same is refundable. Complainant(s) did not opt the house in township of opposite parties and accordingly informed them the same with the request to refund the token money. Initially, opposite parties, before Mr.Harpeet Goldy, acknowledged the debt/reimbursement/refund, against them due to the complainant(s) but later in the meeting on 21.3.2014 with complainant(s), the opposite parties refused to return the token money. The complainant(s) served legal notice dated 23.3.2014 calling upon the opposite parties to reimburse/refund the aforesaid monies but despite the service of legal notice, opposite parties neither refunded the money nor reverted to the notice. The whole act and approach of the opposite parties in the entire matter is callous/capricious/whimsical. On such like averments the complainants have prayed for directing the opposite parties to refund Rs.4 Lacs alongwith interest. They have also claimed compensation and litigation expenses.

2. Upon notice, the opposite parties appeared and filed a written reply raising preliminary objections regarding maintainability, limitation, complainant being not consumer, mis-joinder and non-joinder of necessary parties, esttopel and want of cause of action. They pleaded that the true facts of the case are that the complainants themselves approached the opposite party No.1 and after looking the project became interested in the project and decided to purchase two units bearing No.5 and 6-A for price of Rs.1,05,25,000/- and paid Rs.4 Lacs as token money and executed the application form for allotment of the opposite party No.1. As per the terms and conditions the complainants were to execute the agreement to sell with the opposite party No.1 within 30 days of the payment of token amount and was to pay 15 % of the basic sale price as earnest money to the opposite party No.1. But after paying the token money and after filling the application form for allotment, never turned up to execute the agreement to sell with the opposite party No.1. They denied other material averments of the complainant.

3. In support of their complaint, learned counsel for the complainants has tendered into evidence affidavits Ex.CA to Ex.CC along with copies of documents Ex.C1 to Ex.C3 and closed their evidence.

4. On the other hand, learned counsel for opposite parties tendered affidavits Ex.OPA & Ex.OPB alongwith documents Ex.OP1 and Ex.OP2 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. It is not disputed that complainants had paid Rs.4 Lacs as token money to the opposite parties. Counsel for the complainants contended that above said money was refundable and complainants never opted for purchase of any flat, villa or plot in the scheme of the opposite parties. He further contended that opposite parties acknowledged in the presence of one Harpreet Goldy to refund the above said amount to the complainants but later on refused to do so. On the other hand, it has been contended by learned counsel for the opposite parties that complainants approached opposite party No.1 and decided to purchase two units No.5 and 6-A for price of Rs.1,05,25,000/- and paid Rs.4 Lacs as token money and executed the application form for allotment but thereafter they did not turn-up to execute an agreement to sell within 30 days nor paid the remaining amount of earnest money which was to be 15 % of the basic sale price. He further contended that the above said token money is liable to be forfeited and further that the present complaint is time barred. He further contended that no acknowledgment was made in the presence of Harpreet Goldy as alleged by the complainant and moreover the acknowledgment is required to be in writing as per section 18 of the Limitation Act. We have carefully considered the contentions advanced by learned counsel for the both the parties. Opposite parties have produced application/form Ex.OP1 which is duly signed by the complainant No.1. It is signed by both the parties and in this application/form it is mentioned that they i.e complainants request that the apartment/villa may be allotted to them as per company's terms and conditions which they have read and understood and shall abide by the same as stipulated by the company. In this application units No.5 and 6-A are mentioned in clause 5(iii). Further in this application the payment of Rs.4 Lacs is also specifically mentioned. So from this application Ex.OP1 it is evident that complainants paid Rs.4 Lacs to the opposite parties as token money for the purchase of units No.5 and 6-A in the scheme of the opposite parties. The amount was paid vide cheque dated 30.12.2010 and thereafter the complainants never paid any money to the opposite parties towards the earnest money or sale price of the above said units. In the application form it is specifically mentioned that the complainants have read and understood the terms and conditions and shall abide by the same. The terms and conditions are attached with the application wherein it is mentioned that the earnest money shall stand forfeited in case of non fulfillment of these terms and conditions and those of allotment letter/agreement. It is further mentioned in the terms and conditions that in case the intending allottee fails to enter into agreement within 45 days of paying the earnest money, the amount is liable to be forfeited. Complainants had even not paid the full earnest money as same was 15% of the basic sale price of the property. They only paid Rs.4 Lacs as token money. Counsel for the complainant contended that terms and conditions are not signed by the complainants. We have carefully considered the above contention advanced by learned counsel for the complainants. Although the terms and conditions are not signed by the complainant but in the application Ex.OP1 it is specifically mentioned that i.e complainants have read the terms and conditions and have understood the same. So above said token money is liable to be forfeited. Even otherwise the present complaint is time barred. The payment was made vide cheque dated 30.12.2010 and whereas the present complaint has been filed on 22.7.2014. The complainants have failed to point out any condition in the application form or terms and conditions of the agreement that the above said token money was refundable. The above said amount was given by the complainants for the purchase of units No.5 & 6-A as mentioned in the application form Ex.OP1. Since the complainants failed to pay any further amount till the filing of the present complaint, as such the above said amount is liable to be forfeited. Moreover the present complaint is time barred as the amount was paid vide cheque dated 30.12.2010 and whereas the present complaint was filed on 22.7.2014 i.e after more than 3 1/2 years. The version of the complainant that the opposite parties acknowledged in the presence of Harpreet Goldy to refund the amount can not be accepted. The acknowledgment of debt is required to be in writing as per section 18 of the Limitation Act.

7. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

15.12.2014 Member President