BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.  30 of 2015

                                 Date of institution:          20.01.2015

                                               Date of Decision:             17.06.2015

1.     Smt. Harjinder Kaur wife of Sukhdev Singh

2.     Smt. Ravneet Kang wife of Sarvpreet Singh

Residents of VPO Khamano Ward No.3, District Fatehgarh Sahib.

    ……..Complainants

                                        Versus

M/s. R.K.M. Housing Limited, Site Office at Sector 112, SAS Nagar (Mohali) through its MD/Director/Manager/Authorised signatory.

………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh, Member.

Mrs. R.K. Aulakh, Member.

Present:    Shri Bhupinder Singh, counsel for the complainants.

Shri S.K. Attri, counsel for the OP.

(Mrs. Madhu P. Singh, President)

ORDER

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

(a)    refund the deposited amount alongwith interest @ 18% per annum.

(b)    pay Rs.2,00,000/- on account of mental agony and harassment.

(c)    pay escalation cost to the tune of Rs.2.00 lacs.

(d)    pay Rs.25,000/- as litigation expenses.

                The complainants allege therein the OP has some land in Sector 112, SAS Nagar (Mohali) and decided to develop it into a residential colony township and decided to sell plots of various sizes to the public at large.  In this regard the OPs have floated advertisement in the newspapers and after seeing the advertisement and the attractive layout plan shown in the advertisement, the complainant have booked a plot of 200 sq. yard @ Rs.17,000/- per sq. yard at a price of Rs.34.00 lacs excluding external development charges. Once the plot has been booked, the complainants have paid two amounts i.e. Rs.7,00,000/-  vide duly acknowledged receipt No.3283 dated 07.11.2012 and another amount of Rs.8,50,000/-  vide receipts dated 07.11.2012 total amount being Rs.15,50,000/-. On the same date i.e. 07.11.2012 the complainants have signed memorandum of understanding with the OP.  Since it was a booking of a plot for the future project, no plot number has been mentioned in the Memorandum of understanding. As per Memorandum of Understanding the process of allotment of plot was to start after proper sanction, permission, licenses granted by the competent authorities to the OP.  However, in case the future project is abandoned or is not undertaken due to any unwanted or statutory objection or the OP is not in a position to reserve the developed plot, within 12 months from the date of signing of Memorandum of Understanding, the complainants are entitled to seek refund of the amount deposited with a simple rate of interest @ 10% per annum.  The case of the complainants is that since the signing of Memorandum of Understanding on 07.11.2012 after the expiry of one year, the OP has not developed the area and neither given them any allotment letter. Therefore, after waiting for a couple of years thereafter the complainants vide their letter dated 02.09.2014 requested the OP to refund the deposited amount alongwith agreed rate of interest @ 10% per annum as per terms of Memorandum of Understanding.  The OP has not refunded the deposited amount so far. Therefore, the complainant has raised a consumer dispute in the present complaint.

2.             After the admission of the complaint, the notice was issued to the OP, who put in its appearance before the Forum through its counsel.  Written reply is filed.  The OP took a preliminary objection that the complainants are not consumer as the plot of 200 sq. yards was booked by one Smt. Davinderjit Kaur  as per their record and the complainants have purchased the booking from the original prospective buyers Smt. Davinderjit Kaur and, therefore, the complainants are not consumers.  The OP has otherwise admitted having received Rs.7.00 lacs from Smt. Davinderjit Kaur and the same having been transferred in the account of the complainant and has further admitted having received Rs.8,50,000/- from the complainants and execution of MOU dated 07.11.2012 with the complainants. The plea of the OP that the land could not be developed within 12 months from the date of signing of MOU as the complainants have failed to pay the balance payment upto 07.04.2013.  The another plea raised by the OP that the complainants wanted to change the location of the plot in front of commercial pocket on 100’ wide road and the request of the complainants was not accepted by the OP and, therefore, the complainants have raised false plea of non development of the area for seeking refund of the deposited amount.  The complainants are yet to make payment of Rs.22,50,000/- and in fact the OP has already shown its willingness to handover the possession to the complainant within 15 days provided the complainants make the balance payment. In this regard the OP has already written a letter dated 12.12.2014 to the complainants.

3.             To succeed in the complaint, the complainant No.2 proved on record her affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-5.

4.             To rebut the allegations of the complainants, the OP tendered the affidavit of Kanwaljit Singh Ahluwalia, its Managing Director Ex.OP-1/1 and tendered in evidence documents Ex.OP-1 to OP-16.

5.             We have heard learned counsel for the parties and have also carefully gone through the evidence and written arguments produced by them.

6.             It was submitted by learned counsel for the complainant that the OP has adopted unfair trade practice by preparing the scheme and inviting applications for allotment of plots in that scheme knowingly fully well that it was not in a position to demarcate and allot the plots within 12 months from the date of signing of MOU dated 07.11.2012 Ex.C-3 as it will not be able to procure proper sanctions and licenses from the competent authorities for development of the site and plots.  As per application dated 05.03.2011 Ex.OP-3 by the original applicant Smt. Davinderjit Kaur and subsequent application dated 07.11.2012 Ex.OP-4 signed by the husband of complainant No.2, the OP has taken an obligation on itself regarding the location of number of plots/flats/commercial sites through the draw of lots. As per the complainants the draw of lots has never been held. However, the obligation of allotment of plot after holding the draw of lots on the part of the OP as per Clause-4 of terms and conditions of Ex.OP-4, the complainants became the consumers of the OP and non holding of draw of lots as well as non refund of the deposited amount alongwith agreed rate of 10% interest amounts to deficiency in service and unfair trade practice on the part of the OPs. On account of that deficiency in service, the complainants have suffered loss and injury, as a result of rise in inflation resulting into high cost of construction material and depletion of value of their money lying deposited with the OP.  In all these circumstances, the complainants are not only entitled to refund of the amount deposited by them alongwith compensation and also litigation cost as prayed by them.

7.             The evidence produced by the complainants has been rebutted by the OP on the ground that all the necessary sanctions and permissions are available to the OP and it has already developed the area but the complainants have not paid the remaining amount on the ground that they wanted plot of 200 sq. yards on 100’ wide road in front of commercial pocket vide their request dated 03.04.2013 Ex.OP-8.  Since the request could not be conceded to in the light of terms and conditions of the application i.e. the allotment would be as per draw of lots and, therefore, the complainants being defaulter of further payments despite various reminders have not paid the remaining amount of Rs.22,50,000/- are not entitled to the refund of the deposited amount as per agreed and duly signed terms of MOU Ex.OP-2.

8.             Regarding the allegations i.e. regarding non development of the colony and non refund of the deposited amount, the complainants have not been able to prove by documents that there is no development of the area or the OP does not have any necessary permissions and sanctions in their favour except her affidavit Ex.CW-1/1 wherein in Para No.7 the complainant No.2 has reiterated  her allegation of no development work, no demarcation at the site and further stated on oath that the OP is not the owner of the site shown to the complainants. The said fact of disputed ownership of the land, the complainant has tried to prove through Ex.C-5 i.e. jamabandi for the year 2010-2011 for khewat No.128/112, khatauni No.128 village Behrampur H.B. No.38 wherein the owner of the land has been shown as Balwinder Kaur widow of Avtar Singh son of Dilbagh Singh.  We do not find any relevance and relationship of Ex.C-5 with the pleadings in the complaint as no allegation regarding the disputed title of the property of the OP is raised by the complainant. 

9.             In order to rebut the said allegations of non development and non ownership of land, the counsel for the OP has drawn our attention to Ex.OP-16 i.e. a letter written by the Chief Town Planner Punjab, Chandigarh to the OP on the subject i.e. request for grant of change of land user area 45.205 acres in village Manakpur Majra, Bajrampur to show that they are owners in possession of 45.205 acres land for which they have applied to the competent authority for change of land user and after processing its case the department has allowed it to pay Rs.18,08,200/- as land user charges to the Chief Administrator PUDA Mohali. Therefore, as per counsel for the OP the contents of Ex.OP-16 are sufficient to prove the ownership of the land and the process followed by the OP for seeking sanctions and approval from the competent authorities within 12 months from the signing of MOU Ex.C-4/Ex.OP-2 dated 07.11.2012 with the complainant. Therefore, there is no deficiency in service or unfair trade practice on the part of the OPs.

10.           The other allegation of non refund of the deposited amount alongwith 10% interest is concerned, the contention of the OP is that the complainants are not entitled to the said refund with interest as the refund with interest is governed by Clause-7 of Ex.OP-2 only in the event if the project is abandoned or is not undertaken due to any unwanted or statutory objections. In the present complaint both the conditions i.e. abandonment of the project or not undertaken the project is not applicable as the OP has got all the necessary sanctions from the competent authority to carry forward the project.  It is the complainants who are defaulter in making balance payment despite reminder

11.           Admittedly the OP has received Rs.16,50,000/- as booking amount from the complainants as on 07.11.2012 for allotment of 200 sq. yards plot @ Rs.17,000/- per sq. yard. Perusal of the record shows that the OP has not abandoned or not undertaken the project as alleged. Since it is amply evident that the OP has taken steps for seeking change of land user approval from the  competent authority vide Ex.OP-6, therefore, non refund of the deposited amount of Rs.16,50,000/-  alongwith simple interest to the complainants  by the OP in no manner can be termed as an act of deficiency in service or unfair trade practice on its part.

12.           The complainants have failed to prove on record the abandonment or non undertaking of the project by the OP to entitle them to seek refund of the deposited amount with simple interest @ 10% per annum.

13.           Hence the complaint being devoid of any merit is hereby dismissed with no order as to costs. 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 17, 2015.    

                            (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member