BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.  54 of 2016

                                 Date of institution:          27.01.2016

                                                    Date of Decision:             09.06.2016

1.     Minakshi Lohani w/o Deepak Lohani.

2.     Deepak Lohani son of Late H.C. Lohani

        Both residents of H.No.469, Sector 78, SAS Nagar, Mohali.

                                             ……..Complainant

                                        Versus

1.     M/s. R.K.M. Housing Limited, Sector 112, SAS Nagar, Mohali through its Managing Director.

2.     Kamaljeet Singh Ahluwalia, MD, M/s. R.K.M. Housing Limited, Sector 112, SAS Nagar, Mohali.

                                                              ………. Opposite Parties

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:    Complainant No.2 in person.

                OPs ex-parte.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainants have filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

1. Refund them the amount to the tune of Rs.4,95,000/- alongwith interest @ 12% per annum.

2. To pay them compensation to the tune of Rs.1.00 lacs for mental and physical harassment.

(c)    to pay to them Rs.25,000/- on account of litigation charges.

                The OPs issued advertisements in the newspapers for alluring common men to invest into its projects/flats. In the 3^rd week of July, 2013 the officials of the OPs convinced the complainant to purchase an independent floor i.e. first floor measuring 1274 sq. ft. in Sector 112, Mohali for a total sale consideration of Rs.33,00,000/-. The complainants paid Rs.4,95,000/- as earnest money vide receipt dated 30.07.2013. Agreement to sell between the parties was executed on 02.08.2013. At the time of execution o agreement, the OPs assured the complainants that the remaining amount shall be paid as per terms set out by the respective bank/financial institution in their draft subvention scheme subject to their eligibility for loan under the scheme at the time of giving possession of the flat. The OPs also assured that CLU and lay out plan etc. would be got sanctioned within one or two months and the flat would be completed within 18 months and thereafter they informed the complainants to complete the formalities of loan as per clause 3 of the agreement to sell. The complainants visited the office of the OPs to know the progress of the flats but the OPs told that they will get the permissions soon and thereafter they will inform the complainants. The complainants visited the OPs many a times but every time the matter was put off on one pretext or the other. The complainants then requested the OPs to refund their hard earned amount but the OPs assured that they would get the permissions soon. Now more than 2 ½ years have passed but the OPs have not started the construction work and failed to give the possession.  Thus, the complainants have been left with no other option but to seek refund of their booking amount. Thus, with these allegations the complainants have filed the present complaint.

2.             Notice issued to OPs were delivered upon them on 23.02.2016 but none appeared for them. Hence, the OPs were proceeded against ex-parte vide order dated 17.03.2016.

3.             Evidence of the complainants consist of affidavit of complainant No.2 Ex.CW-1/1 and copies of documents Ex.C-1 to C-3.

4.             We have heard complainant No.2 in person and have gone through the pleadings and evidence.

5.             The complainants have applied for first floor measuring 1274 sq. ft. in the future project for allotment on priority basis as the OPs have acquired the land situated at Sector 112, SAS Nagar (Mohali) and the CLU in respect of the said land has been granted by GMADA. As per memorandum of understanding duly signed between the parties on 02.08.2013 Ex.C-1 the tentative cost of the independent floor was Rs.33,00,000/- plus PLC, Development charges and service tax. Etc.  The complainants were asked to pay initial sum of Rs.4,95,000/- as earnest money which has been duly received and acknowledged by the OPs vide receipt No.3665 and 3670 dated 21.07.2013 and 30.07.2013 respectively Ex.C-2 and C-3. The remaining amount was to be paid as per terms set out by the financial institution or bank in their approved draft subvention scheme subject to the eligibility of the complainants for loan under the scheme. As per Clause 6 of the MOU in case the future project is abandoned or is not undertaken due to any unwanted or statutory objections, the complainants are entitled to get the refund of the amount deposited with a simple rate of interest @ 10% per annum from the date of MOU or from the date of encashment of cheques of earnest money. The complainants have not heard from the OPs thereafter receipt of said amounts Ex.C-2 and C-3. Neither the OPs have allotted them any independent floor nor refunded the deposited amount. The complainants have learnt that even after lapse of 2-1/2 years the OPs have not started the construction work and not shown any documents to the complainants the sanctions and approval which they intended to seek from the appropriate authorities. The complainants have instituted the case of unfair trade practice against the OPs and have proved the same through documents Ex.C-1 to C-3 as well as their duly sworn affidavit.

6.             The OPs have been sent the notice through registered post on 23.02.2016 which have been duly delivered to them but still the OPs have chosen not to participate in the proceedings before this Forum. The absence of the OPs, therefore, despite being properly served is nothing but an admission from their own side which otherwise the complainant has proved from the documents placed on record.

7.             By considering the facts and circumstances and documentary evidence adduced by the complainant alongwith the affidavit, the  this Forum is of the view that the act of the OPs is nothing but a deficiency in service and unfair trade practice in accordance with the provisions of Consumer Protection Act.  The Ops have firstly allured the complainants to book independent floor in their future project, collected the earnest money against due receipts and took no steps whatsoever in furtherance of MOU dated 02.08.2013 Ex.C-1 and then without any rhyme and reason, contrary to the agreed clause No.6 of Ex.C-1 regarding refund has retained the earnest money and not refunded the same to the complainants alongwith interest. All these acts of the OPs clearly establish their conduct of having indulged into unfair trade practice as defined under the Consumer Protection Act.  The complaint, therefore, deserves to be allowed and the complainant deserves to be compensated.

8.             In view of above discussions, the complaint is allowed and the OPs are directed to:

(a)    refund to the complainants Rs.4,95,000/- (Rs. Four lacs ninety five thousand only) with interest thereon @ 10% per annum from the date of signing of MOU i.e. 02.08.2013 till realization.

(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 09, 2016.     

                                 (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                     Member