Chandigarh

StateCommission

CC/192/2014

Gurbax Singh Bains - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Dev. Pvt.Ltd. - Opp.Party(s)

In Person

01 Apr 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                UNION TERRITORY, CHANDIGARH

 

                                                           

Consumer Complaint No.	192 of 2014
Date of Institution	31.12.2014
Date of Decision	01.04.2015

 

Gurbax Singh Bains (aged 65 years) s/o Sh.Shiv Singh resident of H.No.206, Phase 6, Mohali.

 

….…Complainant

 

V E R S U S

 

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., through its Managing Director SCO No.139-140, Sector 8-C, Madhya Marg, Chandigarh.
2. Government of Punjab through Chief Administrator, GMADA, PUDA Bhawan, Phase 8, Mohali.

 

.….. Opposite Parties

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH.DEV RAJ, MEMBER

                SMT.PADMA PANDEY, MEMBER      

                                                                       

Argued by:   

 

Sh.Gurbax Singh Bains, complainant in person.

Sh.Munish Gupta, Advocate for Opposite Party No.1.

Sh.G.S.Arshi, Advocate for Opposite Party No.2.

 

PER PADMA PANDEY, MEMBER

 

                In brief, the facts of the case are that the complainant booked a booth at the plot measuring of 33.33 Syds. valued at Rs.18,00,000/- in the project “Omaxe Chandigarh EXN” being developed by the Opposite Parities at Mullanpur (SAS Nagar) and deposited earnest money of Rs.3,60,000/- on 09.06.2010 vide cheque (Annexure C-1) and the balance price was to be paid in installments, without mentioning payment schedule to be followed by detailed Agreement.  It was stated that while booking the booth, the Company had demonstrated that the project was being developed on the guidelines of PUDA/GMADA (3) under a legal Agreement made by the Opposite Party on 09.11.2009 (Annexure C-3) with the Housing department of Government of Punjab (now GMADA) and would be completed within 3 years. The drawings were already approved by the Town Planner PUDA on 25.01.2010 and possession of the booth would be delivered shortly.  The complainant, in need of booth for personal use, was allured by the demonstrations and promises, booked the booth. Copy of the application form containing basic terms and conditions of allotment is Annexure C-2. It was further stated that as per Condition No.2 of the application form, the allotment was to remain provisional till it was confirmed by signing of detailed Agreement. As per Condition No.23, Opposite Party No.1 was to complete the construction within extended period of 30 months from the start of thereof (construction) and for delay in construction, it was to pay the allottee @Rs.5/- per Sft. per month, whereas, no date for possession of the same (booth) was mentioned. It was further stated that as per Condition No.25, dispute, if any, was to be settled, as per the terms of the detailed Agreement.

2.             It was further stated that Opposite Party No.1 vide letter dated 31.3.2011 (Annexure C-4) demanded further payment of Rs.90,000/- from the complainant to become eligible for allotment of booth, after making the payment of 25 % of the basic sale price, which was deposited by him vide receipt (Annexure C-5). Thereafter, Opposite Party No.1 allotted Booth No.12 to the complainant vide allotment letter dated 29.06.2011 (Annexure C-6) and promised to send the detailed Agreement shortly.  It was further stated that on 03.02.2012 i.e. after 8 months, Opposite Party No.1 arbitrarily changed the allotment to Booth No.17 in lieu of Booth No.12 on the self-made clever plea that the change would suit the needs of the complainant, which was protested by him, being at a disadvantageous location. The complainant also demanded detailed Agreement. Thereafter, the Opposite Party contacted the complainant on 23.02.2012 and conveyed that the necessary correction for allotment of Booth No.12 instead of Booth No.17 was made in their records. The complainant requested vide letters dated 25.02.2012 and 28.05.2012 (at page No.35 & 37) to confirm the change in writing and again requested to supply the detailed Agreement. Opposite Party No.1 issued notices dated 07.02.2012 and 02.04.2012 for payment of further installment and demanding additional cost of Rs.25,000/-, fixing total price of booth as Rs.18.25 lacs.  It was further stated that the cost of Rs.18.25 lacs was also mentioned in the demand notices dated 30.04.2012 and 23.07.2012 issued by Opposite Party No.1 for further installments. The complainant again insisted for detailed Agreement, as the same was to contain the payment schedule. In the meantime, due to lackadaisical approach of the Opposite Party, three installments @Rs.1,80,000/- each had to be deposited on 18.04.2012, 28.05.2012 & 24.08.2012 by the complainant. Copies of the Opposite Party’s letters dated 03.02.2012, 07.02.2012, 02.04.2012, 30.04.2012 and 23.07.2012 are Annexure C-7 (Colly.) and the complainant’s letters dated 11.02.2012, 25.02.2012, 18.04.2012 and 28.05.2012 are Annexure C-8 (Colly.).

3.             It was further stated that the Opposite Party instead of supplying the detailed Agreement, issued notice dated 29.10.2012 (Annexure C-9) to the complainant for further enhancing the price of booth to Rs.20,58,000/-, demanding payment of EDC as Rs.2,32,000/-, which being part of basic price of the booth, was not payable, as per the conditions, yet it was payable at a subsequent stage any increase in EDC was made by the Government. It was further stated that the EDC charged by the Govt. at the rate prevailing on the date of grant of Clearance of Land Utilization (CLU), which had been granted in November, 2009 and the drawing was approved on 25.1.2010. It was further stated that on 22.6.2010 the Govt. reduced the EDC charges earlier @Rs.110.90 lac/acre to Rs.95 lac/acre w.e.f. 19.09.2007. Later on, it again reduced the same on 6.5.2013 to Rs.80 lac/acre and directed Opposite Party No.1 to pass on the benefit of this reduction in EDC to the customers. As such, the refund on account of reduction in EDC charges in the case of booth came to be Rs.53,197/- but Opposite Party No.1 illegally demanded EDC second time.

4.             It was further stated that Opposite Party No.2 was also asked to take action against Opposite Party No.1 but in vain.  It was further stated that the complainant informed Opposite Party No.1 to clarify the stand on pending issues of ambiguous allotment of booth, non supply of detailed Agreement and illegal demand of EDC, having been claimed in basic price, and only then payment of further installments would be made by him. The complainant also visited the site and noticed that Opposite Party No.1 did not start the construction of booth and there was no reason for not completing the said construction because besides receiving more than 50% of the price of booth, it, as per Condition No.12, had also created financial charge on the project land during the course of development of the same for raising loan from the Bank. The complainant, after facing non-responsive attitude of Opposite Party No.1 to resolve the above deceptive practices, demanded refund of money alongwith interest but it did not respond. Copies of complainant’s letter dated 12.11.2012, 17.12.2012 and 09.07.2013 are Annexure C-11 (Colly). Thereafter, Opposite Party No.1 issued notice on 10.10.2013 (at page No.45) threatening the complainant to deposit illegally enhanced price, alongwith interest, failing which, the allotment of booth was to be cancelled and earnest money was to be forfeited.  It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

5.             Opposite Party No.1 was served and put in appearance on 06.02.2015. In its written statement, Opposite Party No.1, stated that the complaint was time barred because the grievance of the complainant seemed to have commenced from the letter dated 03.02.2012 (Annexure C-7), vide which, allotment of commercial space (booth space) was changed from No.12 to No.17 and the instant complaint was filed after two years from the accrual of alleged cause of action.  It was further stated that the complainant is not a consumer because the property, in question, is a commercial space for booth and, as such, the purpose of purchase in no way could be said to be personal, as alleged. It was further stated that even otherwise, the averment regarding personal use (self employment) is an improvement, as the complainant earlier filed complaint before the District Forum and unsuccessfully contested the same upto the Hon’ble National Commission, as the District Forum had no pecuniary jurisdiction to entertain and decide the same. In the said complaint, no averment with regard to the personal use was made and, as such, the averment was made for the first time now in the instant complaint. Copy of the complaint filed at earlier point of time is Annexure R-1/1.

6.             It was further stated that size of the booth space is matter of record. However, price of Rs.18 lacs was basic sale price only. It was denied that detailed payment schedule was not provided.  The complainant booked the commercial space only after ascertaining the payment plan and, as such, he could now back out from the same. It was further stated that the complainant tried to mislead this Commission by projecting that commercial booth was applied and built up booth was to be provided, which, in fact, is incorrect. The projection, as demonstrated that project being developed on the guidelines of PUDA/GMADA is correct. As regards the possession of the commercial space/site for booth is concerned, inter se terms were agreed to between the parties and payment plan was to be followed by the complainant and, accordingly, possession of the commercial space for booth was to be provided by Opposite Party No.1. As regards the detailed Agreement, it was stated that it was a matter of record that the same was to be signed in due course of time. However, with regard to construction, it was stated that since commercial space was booked by him, therefore, the same was to be read as development and possession would mean providing of commercial space for booth and not the built up booth, as was projected by him. It was further stated that the action of the replying Opposite Party with regard to change of the commercial space for booth from No.12 to 17 was totally as per the agreed terms and conditions between the parties. No request from the complainant was received on telephone, as alleged and neither any assurance for correction of the records was given.

7.             It was further stated that the letters dated 07.02.2012 and 02.04.2012 asking the complainant to make payment of the due installments are matter of record and the complainant himself deposited the said installments, which showed that there was no issue regarding the change left and the same was now brought up unnecessarily just to cause undue harassment to the replying Opposite Party. It was further stated that the price mentioned in the application form was only qua the basic sale price and since there was additional charges, as well, therefore, he was issued demand notices by reflecting the same. It was further stated that the complainant deposited the money, as demanded, which show that he had no grouse qua the change as well as the price. The allegation of enhancement of price to Rs.20,58,000/- by including demand of EDC of Rs.2,32,000/- in no way could be said to be bad. It was further stated that the EDC demand was made, when the same was raised by Opposite Party No.2 and after calculating the complainant’s share, the same was demanded from him. It was denied that there was no development at the site. The complainant stopped the payment of installments without any reasonable cause and, as such, was not entitled to any relief, whatsoever. It was further stated that the complainant did never abide by the payment schedule and despite reminders being sent from time to time, did not make payment of installments within time and, as such, made himself liable for cancellation of allotment, but still showing bonafides, cancellation had not been done, so far. It was further stated that the replying Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

8.         Opposite Party No.2 was served and put in appearance on 06.02.2015. In its written statement, Opposite Party No.2, stated that the complainant is not the consumer qua it (Opposite Party No.2) and, as such, it did not avail of its services. It was admitted that the Agreement dated 09.11.2009 was executed between Opposite Party No.1 and Opposite Party No.2 and, as per the terms of the Agreement, the project was to be completed within 3 years from the date of signing of the same (Agreement) and unless the time was extended for a further period of not more than one year by the Government. It was further stated that the charging of External Development Charges were as per the Notifications issued relating thereto from time to time. It was further stated that as per the meeting of the Empowered Committee held on 11.06.2014, it was decided that those mega projects, which were approved after 2007, the area whereof had not been increased and their time period for completion of project had expired, were given time to complete the same upto 30.06.2015. If, however, these projects sought extension, in time, for one year and, thereafter, for another year, they would be charged penalty, as prescribed. Accordingly, the Chief Administrator, GMADA through District Town Planner vide letter dated 16.02.2015 asked the complainant to seek the completion certificate within the prescribed period.    It was further stated that the replying Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

9.             The complainant, filed rejoinders to the written statements of Opposite Parties No.1 and 2, wherein he (complainant) reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

10.           The Parties led evidence, in support of their case.

11.           We have heard the complainant in person, Counsel for the Opposite Parties No.1 & 2, and have gone through the evidence and record of the case, carefully. 

12.           The complainant, submitted that he booked a booth, at the price of Rs.18 lacs, in the project of Opposite Party No.1 and deposited the earnest money of Rs.3,60,000/-, on 09.06.2010 and rest of the amount was to be paid in installments.  He further submitted that at the time of booking, Opposite Party No.1 demonstrated that the project was being developed on the guidelines of PUDA/GMADA under a legal Agreement made between Opposite Parties No.1 and 2 and was to be completed within 3 years.  He further submitted that as per Condition No.23, Opposite Party No.1 was to complete the construction within extended period of 30 months from the start of construction and for delay in construction, it was to pay the allottee @Rs.5/- per Sft. per month, whereas, no date for possession of the same (booth) was mentioned. He further submitted that vide letter dated 31.3.2011 (Annexure C-4), Opposite Party No.1 demanded further payment of Rs.90,000/-, which was deposited by him vide receipt (Annexure C-5). He further submitted that Opposite Party No.1 allotted Booth No.12 to him vide allotment letter dated 29.06.2011 (Annexure C-6) and promised to send the detailed Agreement shortly, but to no avail.  He further submitted that Opposite Party No.1 arbitrarily changed the allotment of Booth No.17 in lieu of Booth No.12 on 03.02.2012, which was protested by him. He further submitted that Opposite Party No.1 issued notices dated 07.02.2012 and 02.04.2012 for further installment demanding additional cost of Rs.25,000/-, fixing total price of booth as Rs.18.25 lacs.  He further submitted that as and when Opposite Party No.1 demanded the installment, he paid the same. He further submitted that the Opposite Party issued notice dated 29.10.2012 (Annexure C-9) to him for further enhancing the price of booth to Rs.20,58,000/-, demanding payment of EDC as Rs.2,32,000/-, which was arbitrary and illegal. He further submitted that the Govt. reduced the rate of EDC from time to time, but Opposite Party No.1 illegally demanded EDC for the second time. He further submitted that the complainant also visited the site and found that Opposite Party No.1 did not start the construction and, as such, he demanded refund of money alongwith interest, but it did not respond. He further submitted that Opposite Party No.1 issued notice on 10.10.2013 (at page No.45) threatening him to deposit illegally enhanced price, alongwith interest, failing which, the allotment of booth would be cancelled and earnest money would be forfeited, which amounted to deficiency, in service and indulgence into unfair trade practice.

13.           The Counsel for Opposite Party No.1, submitted that the complaint was liable to be dismissed on the ground that it was time barred and the complainant did not fall within the definition of a “consumer”. He further denied that detailed payment schedule was not provided because the complainant booked the commercial space only after ascertaining the payment plan and, as such, he could not now back out of the same. He admitted that the project was being developed on the guidelines of PUDA/GMADA. He further submitted that commercial space was booked by the complainant. He further submitted that, commercial booth was never allotted to the complainant, as projected by him. He further submitted that the action of Opposite Party No.1 with regard to change of the commercial space No.12 to 17 was totally, as per the agreed terms and conditions between the parties and no request was received from the complainant on telephone, as alleged by him. He further submitted that the price mentioned, in the application form, was only the basic sale price and since there additional charges, as well, therefore, the complainant was issued demand notices by reflecting the same. He further submitted that the complainant deposited the money, as demanded, showed that he had no grouse qua the change as well as the price. He further submitted that the allegation of enhancement of price to Rs.20,58,000/- by including demand of EDC of Rs.2,32,000/- was in no way could be said to be bad. He further submitted that the EDC demand was raised, when the same was raised by Opposite Party No.2 and after calculating the complainant’s share, the same was demanded from him. He denied that there was no development at the site. He further submitted that the complainant stopped the payment of installments without any reasonable cause and, as such, was not entitled to any relief. He further submitted that the complainant did never abide by the payment schedule and prayed for dismissal of the complaint.

14.           The Counsel for Opposite Party No.2, submitted that the complainant is not the consumer qua Opposite Party No.2 and, as such, he had no locus standi to file the complaint against it. He further submitted that the complaint pertaining to the deficiency, in service, and unfair trade practice on the part of Opposite Party No.1, did not relate to Opposite Party No.2. He admitted that the Agreement dated 09.11.2009 was executed between Opposite Party No.1 and Opposite Party No.2 and as per the terms of the same (Agreement), the project was to be completed within 3 years from the date of signing the same (Agreement) unless the time was extended for a further period of not more than one year by the Government. He further submitted that the External Development Charges were charged, as per the Notifications. He further submitted that Opposite Party No.2 through its agencies, was, thus, exercising the control over the completion of the project by way of fixing the time limit and, in default, thereof by imposing the penalties. He prayed for dismissal of the complaint, qua it.

15.           Admittedly, the complainant booked the booth in the project “Omaxe Chandigarh EXN” of Opposite Party No.1 at Mullanpur (SAS Nagar) and deposited the total amount of Rs.9,90,000/-, as reflected in letter dated 10.10.2013 (at page No.45). It is also established that vide the letter of allotment dated 29.06.2011 (Annexure C-6), Omaxe Chandigarh Extension Developers Private Limited (Opposite Party No.1) allotted Booth No.12 to the complainant having an area measuring 33.33 Sq. Yds./27.87 Sq. mtrs. (Approx.) in its project.

16.            The first question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer or not. No doubt, the Counsel for Opposite Party No.1, submitted that the property, in question, is a commercial space for booth and, as such, the purpose of purchase was in no way could be said to be personal, as alleged by the complainant. He further submitted that even otherwise, the averment regarding personal use (self employment) is an improvement, as the complainant earlier filed the complaint before the District Forum and in the said complaint, no averment with regard to personal use was made and, as such, he (complainant), did not fall within the definition of a consumer. The submission of the Counsel for Opposite Party No.1, in this regard, does not have merit, and is liable to be rejected because it was clearly averred by the complainant, in paragraph No.10 of the complaint, supported by his separate affidavit, by way of evidence, that he purchased the booth for personal use to earn his livelihood by way of self employment. Even the complainant has mentioned in his written arguments that in para No.12 of the previous complaint (annexed as Annexure R-1/1 by Opposite Party No.1), he had specifically stated, supported by the affidavit, by way of evidence, that he purchased the booth for personal use to earn his livelihood. The purchase of booth for personal use by the complainant, for office, for earning his livelihood is well covered under the exception, as he (complainant), being an Advocate is self employed. The complainant enrolled as an Advocate on 15.10.2009 at Chandigarh. He was in need of some booth for his personal use and on the basis of the demonstrations and promises of Opposite Party No.1 that the size, location and timely possession of booth would be suitable for him to use it to earn his livelihood and, as such, he booked the said booth on 09.06.2010 for his personal use (office) and he has also mentioned the fact in the application (Annexure C-2) that he is an Advocate. Thus, it is clearly proved that the booth was, thus, purchased by the complainant, so as to enable him being an Advocate, to run his office therein, for earning livelihood by way of self-employment. It is, thus, not a case where two commercial units, were purchased by the complainant.  Had the complainant purchased two booths/shops, in the project of Opposite Party No.1, in that event, it would have been said that the same had been purchased by him, for commercial purpose, with a view to gain huge profits, and, as such, he did not fall within the definition of a consumer. There is nothing, on record, that the complainant owned any other shop, in the tricity, in his name. On the other hand, Opposite Party No.1, failed to produce, on record, any evidence that the complainant was a property dealer or he intended to purchase the commercial booth, by way of investment, with a view to sell the same, in the event of escalation in prices or to rent out the same. No evidence was also produced, by Opposite Party No.1, that the complainant was having other commercial booths, in the project, in question, or in other projects, and, as such, his sole motive to purchase the same, was to run a commercial activity, on a large scale, to gain huge profits or to rent out the same. No evidence was also produced, by Opposite Party No.1, to prove that the complainant was already having thriving business or indulging into commercial activities, on a large scale, with a view to gain profits, and, as such, the booth, in question, was purchased by him, just with a view to earn huge profits, by selling the same. Since, the complainant booked the  booth, in question,  as stated above, and was allotted the same, and he also, in clear-cut terms, stated in the complaint, as also in the rejoinder and in the written arguments, that he purchased the same, for earning his livelihood, by way of self-employment, in the manner, referred to above, it could certainly be said that he fell within the definition of a consumer, as defined under Section 2(1)(d)(ii) of the Act. The objection taken by Opposite Party No.1, in this regard, in the written statement, being devoid of merit, must fail, and the same stands rejected.

17.           The next question, that falls for consideration, is, as to whether, the complaint filed by the complainant, was barred by time or not. Opposite Party No.1 stated in its written statement, that from the body of the complaint, the grievance of the complainant seemed to be letter dated 03.02.2012 (Annexure C-7), vide which, the allotment of commercial space (booth space) was changed from No.12 to 17. Opposite Party No.1 further submitted that the instant complaint having been filed on 31.12.2014 i.e. beyond 2 years from the date of accrual of cause of action, being barred by time was, thus, liable to be dismissed. No doubt, Opposite Party No.1 sent the letter dated 03.02.2012 (Annexure C-7), aforesaid, to the complainant but he sent various notices/letters to Opposite Party No.1 i.e. dated 11.2.2012, 25.2.2012, 18.4.2012, 28.5.2012, 12.11.2012, 17.12.2012 (at page No.34 to 37 and 39 to 42) and, thereafter, finally issued the notice to Opposite Party No.1 on 09.07.2013, Annexure C-11 (at page No.43) for unfair trade practice i.e. arbitrary change of booth No.12 to 17, not supplying Agreement, charging EDC against the conditions of allotment, but it (Opposite Party No.1) instead of redressing his grievance, issued a notice on 10.10.2013 (at page No.45) to him (complainant) threatening cancellation of booth and forfeit the earnest money. If the net due amount of Rs.9,27,814.28, mentioned in the said letter, was not received, from him. It is clearly proved from the record that the cause of action finally accrued to the complainant on 09.07.2013 when he issued the final notice to Opposite Party No.1. He filed the complaint on 31.12.2014 i.e. well within the period of limitation of two years. It may be stated here, that neither the possession of booth was offered, nor delivered to the complainant, by the stipulated date, nor the refund of Rs.9,90,000/-, deposited by him, was made to him. There was, thus, a continuing cause of action, in favour of the complainant, to file the complaint.  In Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah And Anr., II 2000 (1) CPC 269=AIR 1999 SC 380, wherein, the facts and circumstances were similar to the one, involved, in the instant case, it was held that there was a continuing cause of action, and the complaint was not barred by time. In Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC),  the complainant applied for a plot, in the year 1992, on the basis of inducement made in the advertisements of the petitioner, knowing fully well, that the land, in question, was under litigation. Consumer Complaint was filed, in the year 2009, claiming relief of execution of the sale deed, which was granted to him. An objection was taken that the complaint was barred by time. The Hon’ble Supreme Court held that there was a continuing cause of action, and, as such, the complaint was not barred by time. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. Under these circumstances, it is held that the complaint was not at all barred by time. The submission of the Counsel for Opposite Party No.1, in this regard, being devoid of merit, must fail, and the same stands rejected.

18.           The next question, that falls for consideration, is, as to whether, the builder (Opposite Party No.1) legally charged the EDC from the complainant. The answer, to this, is in the affirmative because the EDC (External Development Charges) is levied by the State Government, upon the builder. So, as and when, the demand was raised by the State Government, it was the duty of the builder to demand the same (EDC charges) from the allottees. So, we are of the considered opinion that the EDC charges were rightly charged by the builder from the complainant. 

19.           The next question, that falls for consideration, is, as to whether, Opposite Party No.1 allotted the fully constructed booth or commercial booth space to the complainant. As per the complainant, Opposite Party No.1 had confirmed in writing vide its letter dated 31.03.2011 (Annexure C-4) to him that the application was for booth on plot of land measuring 33.33 Syds. As per Opposite Party No.1, commercial space was booked by the complainant and, therefore, the same was to be read as development and possession would mean providing of commercial space for booth and not the built up booth, as projected by him. The allotment letter dated 29.06.2011 (Annexure C-6) reads as under :-

“We feel immense pleasure to inform you that you have been provisionally allotted Booth No.12, having area admeasuring 33.33. Sq. Yds./27.87 Sq. mtr. (Approx.) in our captioned project as per the tentative allotment plans in response to your request for allotment of a Commercial Booth Space in the project to be developed by the Company. The detailed Allotment Letter/Agreement for this Allotment shall be sent to you shortly to you in duplicate for your signatures. You are requested to adhere the terms and conditions of the Allotment Letter/Agreement to keep your allotment alive.

In case the payment against the cheques is not honoured due to any reason whatsoever, your provisional allotment shall stand cancelled.” 

It is clearly proved from the aforesaid allotment letter dated 29.06.2011 (Annexure C-6) that request for allotment of a Commercial Booth Space in the project of Opposite Party No.1 was made and there is not even a single word regarding ‘Constructed Booth’ in the record, which could show that constructed booth was to be allotted by Opposite Party No.1. So, the plea of the complainant regarding the allotment of constructed booth, is rejected.  

20.            The next question, that falls for consideration, is, as to whether, the complainant is entitled to the refund of amount, deposited by him, in the circumstances, referred to above. Opposite Party No.1, failed to deliver the legal physical possession of the booth, in question, allotted in favour of the complainant, by the stipulated time i.e. within three years, as mentioned in the Agreement dated 09.11.2009 (Annexure C-3) executed between Opposite Parties No.1 and 2. It, therefore, had no right, to retain the hard earned money of the complainant, in the sum of Rs.9,90,000/-, deposited by him, towards the part price of booth, in question, without rendering him any service. Since Opposite Party No.1 arbitrarily changed the booth space of the complainant from No.12 to 17 and no detailed Agreement was supplied to him, so, no alternative was left with him, than to ask for the refund of amount, deposited by him. Even till date, Opposite Party No.1 is unable to hand over the legal physical possession of the booth, in question. In our considered opinion, the complainant is entitled to the refund of amount of Rs.9,90,000/-, deposited by him. By not refunding the amount, deposited by the complainant, with interest, Opposite Party No.1 was deficient, in rendering service.

21.            The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount deposited by him, if so, at what rate. Admittedly, the amount of Rs.9,90,000/-, towards part price of the booth, in question, was deposited by the complainant. The complainant was deprived of his hard earned money, on the basis of misleading information, given by Opposite Party No.1, that it would complete construction/start development of the project within 24 months from  the date of start of construction or within the extended period of six months, subject to force majeure circumstances and for delay in construction, it would pay the allottee @Rs.5/- per sq. ft. per month for the period of delay, as stipulated in Condition No.23 of the application form (at page No.19), but after receipt of more than half of the amount, towards the price of the booth space, Opposite Party No.1 failed to deliver possession of the same. The complainant was, thus, caused financial loss.  The hard earned money of the complainant was utilized by Opposite Party No.1, for a sufficient longer period. Had this amount been deposited by the complainant, in some bank, or had he invested the same, in some business, he would have earned handsome returns thereon. In case of delay, in deposit of installment(s), Opposite Party No.1 was charging interest @18% P.A. upto one month delay from the due date of payment and @24% p.a. thereafter on all the outstanding dues from their respective due dates, as is evident from Condition No.6 of the basic terms and conditions of the application form (Annexure C-2). Under these circumstances, in  our  considered opinion, if  interest @9% P.A.,  from the respective dates of deposits, is granted, that will serve the ends of justice.

22.           No other point, was urged, by the complainant and Counsel for Opposite Parties No.1 and 2.

23.            As a result of the above discussion, the complaint is partly accepted with cost. Opposite Party No.1 is directed as under:-

1.         To refund the amount of Rs.9,90,000/- to the complainant, alongwith interest @9% p.a. from the respective dates of deposits till its actual realization.
2.         To pay a sum of Rs.15,000/- as litigation expenses to the complainant.
3.         This order be complied with, by Opposite Party No.1, within two months, from the date of receipt of a certified copy thereof,  failing which, it shall be liable to refund the aforesaid amount of Rs.9,90,000/-, as mentioned in Clause (i) above, alongwith penal interest @12% p.a. instead of @9% p.a. from the respective dates of deposits till its actual realization besides payment of cost of litigation.        

24.           However, the complaint against Opposite Party No.2 is dismissed with no order as to cost.

25.           Certified copies of this order, be sent to the parties, free of charge.

26.            The file be consigned to Record Room, after completion.

 

Pronounced.                                                                                    

01.04.2015                                                                       Sd/-

[JUSTICE SHAM SUNDER [RETD.]

                                                                                 PRESIDENT

 

                                                                                                            Sd/-                                  [DEV RAJ]

                                                                                                MEMBER

 

Sd/-

 [PADMA PANDEY]

MEMBER