BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.140 of 2015
Date of institution: 01.04.2015
Date of Decision: 20.07.2015
1. Rajnessh Sharma son of Prakash Chand, resident of B-3B/50C, 2nd Floor, Green Valley Apt., Janakpuri, New Delhi.
2. Vinita Sharma w/o Rajneesh Sharma, resident of B-3B/50C, 2nd Floor, Green Valley Apt., Janakpuri, New Delhi.
……..Complainants
Versus
1. M/s. Skylark Urban Development Pvt. Ltd., 1-4 Commercial Complex, Skylark Enclave, Kharar- Banur-Ambala Highway, Sector 115, Mohali, Punjab, 140307 through its Managing Director.
2. Managing Director, M/s. Skylark Urban Development Pvt. Ltd., 1-4 Commercial Complex, Skylark Enclave, Kharar- Banur-Ambala Highway, Sector 115, Mohali, Punjab, 140307.
………. Opposite Parties
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 Vijay Dahiya, counsel for the complainants.
Opposite Parties 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:
(a) refund Rs.8,35,030/- with interest @ 24% paid by them to the OPs
(b) to pay them the difference between the booking price and the market price of the plot.
The case of the complainants is that they booked a residential floor in the project of the OPs on 17.03.2012. They were allotted Second Floor Flat No.5552 in Venice Block measuring 1705 sq. ft. The total consideration of the plot was Rs.42,90,000/- plus service tax. As per the agreement/allotment letter Ex.C-1 the OPs promised to deliver the possession in June, 2014. In pursuance of the agreement the complainants made payment of first installment of 10% of the BSP plus service tax by three cheques of Rs.4,04,429/-, Rs.11,000/- and Rs.2,086/- vide receipts Ex.C-2/A to C-2/C. The second installment of 10% for Rs.4,05,000/- plus service tax of Rs.12,515/- was paid vide cheque dated 21.08.2012 receipt Ex.C-3 whereof was issued by the OPs. However, the OPs had not started any construction at the site and even after second installment the OPs have not asked for further payment from the complainants. As the OPs failed to start construction and handover the possession to the complainant, they vide legal notice Ex.C-4 sought refund of the deposited amount which the complainants have not refunded till date. Hence this complaint.
2. After admission of the complaint, notice was sent to the OPs. As per report of India Post, the notices were delivered to the OPs on 12.05.2015 but none appeared for them and thus they were proceeded against exparte on 05.06.2015.
3. To succeed in the complaint, the complainants proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-6.
4. We have heard learned counsel for the complainants and have also carefully gone through the case file and written arguments.
5. The case of the complainants is that they have deposited Rs.8,35,030/- being the part consideration against the total agreed consideration of Rs.42,90,000/- for purchase of plot as per agreement/allotment letter. The perusal of the agreement Ex.C-1 shows that the OPs have promised to hand over the possession of the plot on the payment of entire consideration alongwith other dues. As per the complainant the Ops have admitted having receipt of the part payment as the OPs have issued the receipts Ex.C-2/A to C-2/C and Ex.C-3 totaling Rs.8,35,030/-. Since there was no development as the Ops have failed to start the construction. Thus, alleging deficiency in service and unfair trade practice, complainants have sought the refund of the deposited amount alongwith interest and compensation.
6. Since the complainants have availed the services of the OPs for purchase of fully developed plot measuring 1705 sq. ft and made part payment in pursuance of the buyer’s agreement Ex.C-1, therefore, the complainants are consumers and the OPs are service providers. Since the Ops have failed to even start the construction and further refund the deposited amount to the complainants, therefore, the OPs have indulged into deficiency in rendering proper and effective service to the complainants and have further indulged into unfair trade practice by not refunding the deposited amount to the complainants. The complaint is within limitation as the complainants have deposited various amounts total being Rs.8,35,030/- starting from 25.04.2012 to 21.08.2012 and once found no development and progress despite repeated enquiries, the Ops have failed to raise the construction as the complainants have proved the same from the photographs taken by them from site duly supported by their affidavit. Therefore, the retention of the deposited amount by the Ops without any development and progress at site is a continuous cause of action in favour of the complainants enabling them to institute the present complaint within limitation. The complaint is also within the territorial and pecuniary jurisdiction. Non raising of construction as promised in the buyers allotment letter/agreement Ex.C-1 and further non refund of the deposited amount by the OPs to the complainants is an act of deficiency in service and unfair trade practice which the complainants have proved through cogent evidence on record. Hence, the complaint deserves to be allowed and the complainants deserve to be compensated as the complainants have suffered financial loss and mental agony and have been deprived of the possession of the agreed property due to acts of omission of the OPs.
7. Thus, the complaint is allowed with the following directions to the OPs to:
(a) to refund to the complainants deposited amount of Rs. 8,35,030/- (Rs. Eight lacs thirty five thousand thirty only) with interest thereon @ 12% from the respective dates of deposit i.e. on Rs.4,04,429/- w.e.f. 25.04.2012, on Rs.11,000/- w.e.f. 25.04.2012, Rs.2086/- w.e.f. 14.05.2012 and Rs.4,17,515/- w.e.f. 21.08.2012 till actual payment.
(b) to pay 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.
July 20, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
