BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.588 of 2014
Date of institution: 17.09.2014
Date of Decision: 23.04.2015
1. Ranjit Kumar son of Dwarka Saw
2. Neelam Kumari w/o Ranjit Kumar
Residents of House No.11-A, Type 13, JEF, PGI Campus, Chandigarh.
……..Complainants
Versus
M/s. Nature Farms and Real Estates Private Limited, Dainik Bhaskar Building, Sector 25, Chandigarh through its Chairman/Director.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. Sonia Bansal, Member.
Present: Shri Mandeep K. Dhot, counsel for the complainants.
Opposite Party ex-parte.
(Mrs. Madhu P. Singh, President)
ORDER
The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the OP to:
(a) refund them Rs.4,00,000/- with interest @ 24% per annum from the dates of deposit till realization.
(b) to pay them Rs.2,00,000/- as compensation for mental trauma and harassment and Rs.50,000/- as litigation expenses.
The complainants have pleaded in the complaint that the OPs are providing dwelling units/services against consideration. On the going through an advertisements the complainants booked flat No.203, 2nd Floor, Sector 113, Near Landra Chowk, SAS Nagar Mohali measuring 850 sq. ft. in the project of the OP namely NHI Heritage. And paid Rs.1.00 lacs as booking amount vide receipt dated 17.08.2012 Ex.C-2. At the time the OP assured that the construction of the project would be started after Deepawali i.e. after November, 2012. On the demand of OP, the complainants paid another amount of Rs.3.00 lacs to the OPs vide receipt dated 27.09.2012 Ex.C-3. The project was not started after November, 2012 and the complainants enquired from the OP who assured that due to some procedural delay the work was delayed and would start in April, 2013. Vide letter dated 21.02.2013 the OP issued booking confirmation letter and Apartment Buyers Agreement Ex.C-5 was also executed on 11.03.2013. The complainants enquired time and again from the OPs regarding start of the construction but every time the OP assured that it will start very soon. When no construction was started by the OP, the complainants vide letter dated 22.02.2014 Ex.C-6 requested the OP to refund Rs.4.00 lacs alongwith interest but no reply was given by the OP. The complainant even served a legal notice dated 10.06.2014 Ex.C-7 which was replied by the counsel of the OP on 30.06.2014 Ex.C-9 with no proper reply to the legal notice of the complainants. Non refund of the deposited amount is an act of deficiency in service and unfair trade practice on its part.
2. After the admission of the complaint, notice was sent to the OP through the registered post and as per the report received from the postal authorities, the OP refused to receive the notice. Presuming its absence as willful, the OP was proceeded against ex-parte vide order dated 28.11.2014.
3. To succeed in the complaint, the complainant proved on record his affidavit Ex.CW-1/1; copies of documents Ex.C-1 to C-9.
4. In view of the decision of Hon’ble Uttrakhand State Consumer Disputes Redressal Commission in case titled as Consoritum Securities Pvt. Ltd. & Ors. Vs. Smt. Anjana Tyagi, 2013(3) CLT 570 by relying upon the judgment of Hon’ble National Commission in case titled as Mathura Mahto Mistry Vs. Bindeshwar Jha (Dr.) & another, 2008 (I) CLT 566, the OP was given three opportunities to rebut the evidence of the complainant. However, none appeared for it to rebut the evidence.
5. We have heard learned counsel for the complainants and have also carefully gone through the evidence and written arguments. As stated above no one appeared on behalf of the OP throughout the proceedings.
6. As per the complainants they have paid Rs.4.00 lacs to the OP vide receipts dated 17.08.2012 Ex.C-2 and 27.09.2012 Ex.C-3 towards purchase of a flat. As per the complainants when the OP failed to start construction work at the site, they approached the OP but it continued to postpone the matter on one pretext or the other. Ultimately, the complainants demanded their booking amount which the OP has not refunded thus necessitating the complainants to file the present complaint. The allegations made by the complainants are supported with the duly sworn affidavit Ex.CW-1/1. In order to prove the payment of Rs.4.00 lacs the complainants have adduced Ex.C-2 dated 17.08.2012 and Ex.C-3 dated 27.09.2012. The perusal of both the documents clearly shows that the receipts have been issued by the OP are duly signed and stamped by it. Therefore, the amount so reflected in the receipts i.e. Rs.4.00 lacs is duly proved by the complainant. The buyers agreement Ex.C-5 which was duly signed by the parties on 11.03.2013 has been proved by the complainant. The perusal of relevant clause regarding possession of the plot is Clause-4 (1) shows that the OP is to deliver the possession within 24 months from the date of execution of the agreement failing which the OP will pay penalty of a sum of Rs.4/- per sq. ft. per month for the delay beyond 24 months. Till 22.02.2014 no offer of possession was issued by the OPs and, therefore, the complainant has vide Ex.C-6 dated 22.02.2014 has sought the refund of the deposited amount with interest till date. Perusal of Ex.C-6 shows that the said representation for refund has been duly acknowledged by the OP as is evident from the signatures and stamp of the OP affixed on the document as a receipt of the said document from the complainant. Still the OP has not given the refund of the deposited amount so demanded till date. Therefore, the act of the OP in not refunding the amount of Rs.4.00 lacs deposited vide Ex.C-2 and C-3 is an act of deficiency in service and unfair trade practice on the part of the OP.
7. Ample opportunities have been granted to the OPs for appearance before this Forum to rebut the pleadings and evidence of the complainant but the OPs deliberately omitted the proceedings and therefore, were proceeded against exparte. Thus the absence of the OPs is nothing but an admission from their side, as has been held, by the Hon’ble Kerala State Consumer Disputes Redressal Commission in K.D. Ajay Khosh Vs. M/s. Alliance Habitat, CLT 2013 (2) 389.
8. Thus, the OP has failed to give the refund of the deposited money to the complainants despite the fact having received the representation dated 22.02.2014 Ex.C-6. Therefore, the act of the of non refund of the deposited amount alongwith interest amounts to deficiency in service and unfair trade practice. The complainants have successfully proved that they suffered loss and injury on account of non refund of the money alongwith interest as there is depletion in the value of money. The OPs have utilized their amount for the last more than 4 years and have been benefitted from their capital and, therefore, they have been put to financial loss and injury. Under the circumstances, the complainants have been successful in demonstrating and proving the deficiency in service on the part of the OPs. Therefore, the complaint deserves to be allowed and the complainants deserve to be compensated. Therefore, we find that the OP is liable to refund the entire deposited amount i.e. Rs.4.00 lacs and be ordered accordingly. However, the demand raised by the complainant to repay the interest @ 24% per annum is on higher side. Hence we are of the considered view that the as OP has utilized this money for furtherance of its own cause and without giving any benefit to the complainants, the complainants are squarely entitled to minimum interest @ 12% per annum as has been held by the Hon’ble Punjab State Consumer Disputes Redressal Commission in case titled Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited and others, 2014 (2) CLT 401.
9. In view of above discussion, we allow the present complaint with the following directions to the OP to:
(a) refund to the complainants Rs.4.00 lacs (Rs. Four lacs only) with interest thereon @ 12% per annum from the dates of respective deposits till actual payment.
(b) pay to the complainants a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) towards mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of one month 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.
April 23, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. Sonia Bansal)
Member
