BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.393 of 2015
Date of institution: 04.08.2015
Date of Decision: 29.03.2016
Jaspal Singh Johar son of Late Harbans Singh Johar, resident of H.No.3155, Sector 50-D, Paradise Enclave, Chandigarh.
……..Complainant
Versus
The Puncham Cooperative HBS Limited, Sector 68, Mohali through its Secretary.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Shri Pankaj Chandgothia, counsel for the complainant.
Shri Harbans Lal, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
- Refund him Rs.7,67,000/- alongwith interest @ 9% per annum.
- To pay Rs.5,00,000/- on account of physical and mental harassment.
- To pay him Rs.10,000/- as deterrent damages.
- To pay him Rs.25,000/- as litigation cost.
The case of the complainant is that the OP had floated a scheme for allotment of residential flats by becoming its member. The complainant became member of the vide membership No.635. On 24.02.1999 the complainant deposited a sum of Rs.2,17,000/- towards membership and right of allotment of flat of HIG category measuring 1410 sq. ft. Another sum of Rs.5,50,000/- was deposited by the complainant with the OP on 14.03.2005 towards price of the flat. Thus, against the total price of Rs.10,70,000/- of the flat, till 14.03.2005 the complainant had deposited a sum of Rs.7,67,000/-. The complainant kept on asking the OP for allotment of a flat but the OP postponed the matter on one pretext or the other. Ultimately, the OP informed the complainant that there is no flat which could be allotted to him. The complainant filed cases before the Assistant Registrar, Cooperative Societies, Punjab against the OP for correction of misdeeds which were decided in favour of the complainant on 17.04.2013 by holding the OP guilty of acts of omission and acts of commission and the OP was also directed to allot the entitled flat to the complainant immediately upon any old member surrendering the flat. A period of two years has elapsed since 17.04.2013 but the OP has not taken any steps to allot the flat to the complainant. The complainant had to compromise the matter under FIR No.94 dated 27.07.2011 registered against him arising out of membership and non allotment of flat by the OP. The complainant vide legal notice dated 15.05.2015 requested the OP to refund his amount of Rs.7,67,000/- alongwith damages for loss and harassment caused to him. No reply has been given by the OP to the legal notice. Thus, with these allegations the complainant has filed the present complaint.
2. The OP in its written statement has pleaded that the complaint is barred by limitation as the last deposit was made by the complainant in 2005. The complainant has concealed material facts from this Forum. First he concealed that he had filed reference No. Nil of 2006 in the court of Additional Registrar, Cooperative Societies Punjab Chandigarh which was decided on 17.04.2013. The present complaint is barred by rules of resjudicata. Consumer Complaint No.72/2011 filed by the complainant before the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh was dismissed vide order dated 13.07.2012. The complainant has also concealed that he had signed an agreement to sell the HIG flat which was never allotted to him. The complainant also concealed that he had filed a complaint to the Economics Offences Wing of Mohali on 04.09.2010. The complainant has also concealed the fact that he had deposited the amount with the OP for allotment of flat in the waiting list after any old member vacates such flat. Moreover, the complainant deposited only Rs.7,67,000/- with the OP whereas the cost of the flat was Rs.10.78 lacs. On merits, it is pleaded that the complainant had not deposited the full amount of the flat and even the order dated 17.04.2013 provides that if any old member surrenders the flat and the complainant deposits the balance amount, the said flat may be allotted to him. No flat was surrendered and the complainant has also not deposited the balance amount till date and thus is not entitled to allotment of flat. The fact regarding compromise in FIR No.94 dated 27.07.2011 has been denied by the OP. The complainant had not responded to the final notice of payment dated 17.05.2004 in which he was given time to make payment upto 06.06.2004 otherwise allotment was to be cancelled. Thus, denying any deficiency in service or unfair trade on its part, the OP has sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record his affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-2 and Mark-A and Mark-B.
4. Evidence of the OP consists of affidavit of Amrik Singh, its Member Supervisory Committee Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-5 and Mark-A.
5. We have heard learned counsel for the parties and gone through the written arguments filed by them.
6. The limited dispute in the present complaint is whether the complainant is entitled to refund of deposited amount of Rs.7,67,000/- alongwith interest and other consequential reliefs sought by him particularly in the event when the reference of dispute under Section 68 of the Punjab Cooperative Act, 1968 has been thoroughly deliberated by the Additional Registrar, Cooperative Societies, Punjab, Chandigarh vide his order dated 17.04.2013 Mark-A. As per orders of the Additional Registrar, Cooperative Societies, Punjab, Chandigarh, the OP was directed to issue the allotment letter of a flat to the complainant upon surrendering of a flat by any old member of the society. As per the complainant after the passing of the orders dated 17.04.2013, the OP has taken no steps whatsoever even after lapse of two years and no allotment letter has been issued in favour of the complainant though he is willing and ready to pay the balance outstanding amount. Further as per the complainant due to acts of omission and commission, the complainant has to face some criminal case. In reply to para No.10 to the complaint, the OP has taken a stand that none of the old members has surrendered any flat and the complainant has not deposited the balance amount till date and, therefore, is not entitled to allotment of flat. Further as per the OP, no order has been passed by the Assistant Registrar Cooperative Societies on 17.04.2013 and no such post exists. It seems that while giving response to Para No.10 of the complaint, the OP has inadvertently mentioned about some post which is not the subject matter of the complaint. The perusal of order dated 17.04.2013 Mark-A shows that this order has been passed by the Additional Registrar, Cooperative Societies, Punjab, Chandigarh and not Assistant Registrar, Cooperative Societies as referred to by the complainant in Para No.8 and 10 of his complaint. That being immaterial, the order dated 17.04.2013 is genesis of the main dispute before us.
7. The issue of criminal case against the complainant due to acts of omission and commission of the OP as raised by the complainant has no bearing whatsoever on the present consumer dispute issue before us and, therefore, does not need any deliberations.
8. Since the OP has shows its inability to allot the flat in favour of the complainant, as no old member of the society has surrendered any flat, therefore, the question of non payment of balance outstanding dues by the complainant does not arise. Under the circumstances, the complainant has no option but to seek refund of the deposited amount which remained with the OP from the respective dates of deposit. The complainant has sent legal notice dated 15.05.2015 Ex.C-1. However, the OP has denied having received any legal notice. The complainant has failed to show delivery of legal notice to the OP.
9. Though it is an admitted fact that the complainant has deposited Rs.7,67,000/- with the OP on two occasions i.e. Rs. 2,17,000/- on 24.02.1999 and Rs.5,50,000/- on 14.03.2005 and the said amount remained with the OP since then. The OP has shown its inability to issue allotment letter in favour of the complainant, therefore, the complainant is entitled to refund of the deposited amount. Thus, by not refunding the deposited amount to the complainant is an unfair trade practice on the part of the OP. Thus, the complaint deserves to be allowed and the complainant deserves to be compensated.
10. In view of above discussion, the complaint is allowed with the following directions to the OP:
(a) to refund to the complainant Rs.7,67,000/- (Rs. Seven lacs sixty seven thousand only) with interest @ 9% per annum from the respective dates of deposit till actual refund.
(b) to pay to the complainant a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days 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.
March 29, 2016.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
