BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.455 of 2014
Date of institution: 07.07.2014
Date of Decision: 06.06.2016
Vijepal Singh Mann son of Late Col. Jaswant S. Mann, resident of House No.1306, Sector 44-B, Chandigarh.
……..Complainant
Versus
M/s. Puma Retailers Pvt. Ltd. having its Corporate office at SCO No.6-8, 1st & 2nd Floor, Sector 9-D, Chandigarh 160009 through its Managing Director.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Varun Katyal, counsel for the complainant.
Shri Ramnik Gupta, 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.13,45,197/- alongwith interest @ 9% from 03.02.2014 till realisation.
(b) to pay him Rs.4,51,197/- as interest @ 9% from 03.01.2012 to 03.02.2014 on Rs.24,06,385/-.
The case of the complainant is that he booked a plot with the OP in its mega housing project namely IREO Hamlet Project, Mohali. A provisional allotment letter was issued in favour of the complainant. Subsequently the complainant entered into an agreement with the OP on 24.11.2011 at Chandigarh. At the time of booking, the OP assured that the possession of the plot would be delivered in a maximum period of two years from the date of agreement as mentioned in clause 11.1 of the agreement. The complainant had paid all the installments on time as per the payment plan and till 03.01.2012 the complainant had paid a sum of Rs.24,06,385/- to the OP. The OP was required to start the development work at site by December, 2011 but it never started till May, 2013. In May, 2013 the OP informed the complainant that they are going to start the development at site and demanded next installment from the complainant. The stipulated date for handing over the possession of the plot expired on 23.11.2013. The complainant sought explanation from the OP for delay and the OP informed him that he would be given delay compensation calculated @ Rs.50/- per sq. yard as provided in Clause 11.2 of the agreement. Due to delay on the part of the OP, the complainant sent a legal notice to the OP seeking cancellation of his booking and refund of the deposited amount alongwith interest as per Clause 20.1 of the agreement dated 24.11.2011. The OP sent letter dated 20.12.2013 taking false and frivolous stand and denying the claim of the complainant. The complainant earlier filed a complaint before the Hon’ble State Commission which was withdrawn by the complainant on 19.02.2014. After much delay the complainant received cheque of Rs.10,61,188/- against cancellation of his booking. The OP had deducted earnest money to the tune of Rs.12,13,003/-; brokerage Rs.127,301/- and Rs.4,893/- on account of interest and not refunded the entire amount. The complainant sent legal notice dated 18.03.2014 to the OP seeking refund of the balance amount of Rs.13,45,197/- but the OP did not bother to refund the amount. With these allegations, the complainant has filed the present complaint.
2. The OP in the preliminary objections of its written statement has pleaded that vide condition No.33 of the agreement, the parties have agreed to resolve the disputes through arbitration and as such this Forum does not have jurisdiction to entertain the dispute covered under Arbitration clause. The complainant is not a consumer as defined under the provisions of Consumer Protection Act. This Forum has also no jurisdiction regarding interpretation of, or rights of the parties inter se in accordance with the agreement which jurisdiction is exclusively of a civil court under the Specific Relief Act. Terms of the agreement are binding between the parties. The reliefs claimed by the complainant are contrary to the express terms and conditions of the agreement and fall outside the scope of Section 14 of the Consumer Protection Act. As per Clause 11.1 of the agreement, the handing over of the plot was subject to force majeure and it was further subject to the complainant having complied with all his obligations under the terms and conditions of the agreement. The complainant himself has violated the Clause No.19.1 of the agreement as he has not adhered to the payment plan and has not made the payment despite several requests and reminders. In reply to the legal notice dated 27.11.2013 of the complainant, the OP vide letter dated 13.02.2014 intimated the complainant regarding cancellation and sent the account payee cheque dated 03.02.2014 for Rs.10,61,188/- towards refundable amount deducting earnest money and other deductible amounts in accordance with the agreed terms and conditions of the agreement. The complainant has got encahsed the cheque on 28.04.2014. On merits, also the OP has pleaded that the complainant has committed default in making payments and on his request the refund has been made to him by deducting the earnest money and other charges. The cheque of the refund amount has been duly encahsed by the complainant. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-8.
4. Evidence of the OP consists of affidavit of Rajnessh, its authorised representative Ex.OP-1/1 and documents Ex.OP-1 to OP-17.
5. We have heard learned counsel for the parties and have gone through the written arguments submitted by them.
6. Admittedly the complainant has deposited Rs.24,06,385/- with the OP against the agreed sale consideration of plot No.269 measuring 307.77 sq. yards @ Rs.25,000/- per sq. yards plus EDC and preferential location charges and IFMS charges. As per the parties, since the complainant has not paid further sums against the demand notices issued by the OP from time to time, the last demand notice being dated 13.02.2014, the complainant has failed to pay the outstanding amount and, therefore, the OP vide Ex.C-7 dated 13.02.2014 has issued the refund order of Rs.10,61,188/- and remitted the said amount vide cheque No.000959 dated 03.02.2014 drawn on Kotak Mahindra Bank towards the payment of balance refundable amount. The said cheque has been received and encashed by the complainant. However, before encashment the complainant has accepted the cheque under protest being deficient by Rs.13,45,197/- as the OP has illegally deducted earnest money, brokerage charges and interest from the total deposited amount. The complainant has sent legal notice dated 18.03.2014 Ex.C-8 raising his protest for short and deficient refund and receipt of the amount under protest. The OP did not respond to the legal notice and after waiting for one month the complainant got the cheque encashed on 28.04.2014 as is evident from the document relied upon by the OP i.e. Ex.OP-10 and Ex.OP-11.
7. The question in the present complaint is left to be answered is whether the complainant has accepted the refund amount under protest and whether the OP has deducted the amount on account of less earnest money, less brokerage and less interest as per terms of the buyers agreement or not.
8. We will answer the second question first. Clause 18 of the duly executed buyers agreement Ex.C-2 dated 24.11.2011 deals with forfeiture of earnest money in the event the complainant becomes defaulter in making the balance outstanding payment against demand. In the refund order Ex.OP-10, the OP has deducted an amount of Rs.12,13,003/- on account of less earnest money. The onus is on the OP to justify the forfeiture of earnest money after showing that the complainant has failed to respond to the demand notices issued by it. There is nothing on record to show that the OP has issued any notice of termination after issuing the demand notices for making further payments as per terms of agreement. Thus, the act of the OP in retaining the earnest money of Rs.12,13,003/- is beyond the terms and conditions and obligations cast upon the OP as per those terms. The retention of this money is, therefore, an act of unfair trade practice having been proved by the complainant. So far deduction on account of less brokerage and less interest is concerned, there is no such clause in the agreement governing/authorizing the OP to deduct these amounts under these heads. Therefore, the act of the OP in this regard is illegal and beyond of the agreed terms and is an act of unfair trade practice.
9. So far question No.1 is concerned, the complainant has admittedly send the legal notice dated 18.03.2014 which has been duly accepted and acknowledged by the OP as is evident from the written statement Para No.15. The complainant through this legal notice has accepted the refund order dated 13.02.2014 and cheque dated 03.02.2014 under protest being deficient and has further got the cheque encashed on 28.04.2014 as per Ex.OP-11, a document which has come on record from the side of the OP. Thus, the receipt of refund is not full and final in the hands of the complainant. That being the position, the complainant was well within his right to raise the objection of deficient amount and it was the obligation of the OP to address the concern of the complainant. Finding no answer from the OP, the complainant has finally got the cheque encashed on 28.04.2014 and, therefore, his protest remained unanswered in the hands of the OP. As stated above qua question No.2, the complainant has proved the deductions of Rs.13,45,197/- being contrary to the terms and conditions of the buyers agreement, therefore, both the questions are answered in favour of the complainant and against the OP. The OP has thus been found to have indulged into unfair trade practice by retaining Rs.13,45,197/- of the complainant being beyond the terms of agreement. The act of the OP being an act of unfair trade practice, the complaint deserves to be allowed and the complainant deserves to be compensated.
10. In view of above discussions, the complaint is allowed against with the following direction to the OP to:
(a) refund to the complainant Rs.13,45,197/- (Rs. Thirteen lacs forty five thousand one hundred ninety seven only) with interest thereon @ 9% per annum from 03.02.2014 (the date when partial refund of Rs.10,61,188/- was made to the complainant ) till actual payment.
(b) to pay to the complainants a lump sum compensation of Rs.1,00,000/- (Rs. One lac only) for mental agony, harassment and costs of litigation.
Compliance of the above directions 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.
June 06, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
