BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.415 of 2015
Date of institution: 19.08.2015
Date of Decision: 10.03.2016
Kirti Sharma son of Varinder Kumar Sharma, resident of Kothi No.101, 2nd Floor, Phase-4, Mohali.
……..Complainant
Versus
1. M/s. K. Soni Builders & Promoters Pvt. Ltd., a registered Company under the Companies Act 1956, having its Registered Office at SCF 13-14, Chhajju Majra Road, Sector 126, Greater Mohali, Kharar (Pb.) through its Managing Director Shri Kuldeep Soni.
2. Sh. Kuldeep Soni, Managing Director M/s. K. Soni Builders & Promoters Pvt. Ltd., a registered Company under the Companies Act 1956, having its Registered Office at SCF 13-14, Chhajju Majra Road, Sector 126, Greater Mohali, Kharar (Pb.).
………. 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: Shri Harish Chhabra, counsel for complainant.
OPs ex-parte.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
- Refund him the amount of Rs.6,00,000/- alongwith interest @ 18% per annum from the date of payment till realisation.
- pay him Rs.15,000/- as compensation on account of delay in handing over the possession (i.e. for 5 months @ Rs.3/- per sq. ft. per month of the super area of the flat).
- pay him Rs.36,000/- on account of rent for five months @ Rs.7,200/- per month.
(d) to pay him Rs.5,938/- on account of interest on limit.
(e) to pay him Rs.1.00 lac on account of mental tension, agony and harassment.
(f) to pay him Rs.51,000/- as costs of litigation.
The complainant who is Engineer by profession, was allured by the OPs to buy a residential flat from them. The complainant booked a flat/Floor No.143 (First Floor) 2BHK consisting of Two Bedrooms, Drawing-Dinning, Two Bathrooms, Store and kitchen, measuring super area of 1000 sq. ft. at KSB Greens II, Kharar Landra Road, Sector 127, Mohali. An agreement to sell was executed on 30.06.2014. The total sale consideration of the flat was Rs.24,00,000/- and the complainant at the time of booking paid Rs.6,00,000/- as part sale consideration of the flat. As per Para 8 of the agreement to sell, the possession of the flat was to be given to the complainant on or before 31.03.2015. It was also agreed that if the OPs failed to offer the possession by the stipulated date, they would pay to the complainant compensation @ Rs.3/- per sq. ft. per month of the super area till the offer of possession. The complainant had been taking up the issue of construction and possession of the flat with the OPs from time to time but all in vain. The complainant visited the proposed site and found that there has been no construction activity and there are thick bushes all around. As per the complainant, it appears that the project has been abandoned by the OPs leaving the complainant in lurch. The complainant had paid the booking amount of Rs.6.00 lacs by arranging a loan of Rs.2,60,000/- from his father who in turn has taken loan/limit against his Fixed Deposit to the tune of Rs.1,50,000/- and has been paying its interest @ 9.5% per annum in the complainant’s account. The complainant has been living in rented accommodation and paying monthly rent of Rs.7,200/- per month. The complainant has also learnt that the project of the OPs is not approved by the competent/local authorities. The complainant sent a legal notice dated 31.07.2015 to the OPs but till date nothing has been heard from the OPs. Thus, with these allegations the complainant has filed the present complaint
2. As per the India Post Tracking Report, the notices sent to the OPs were delivered on 08.12.2015. Inspite of this none appeared for them and the OPs were thus proceeded against exparte vide order dated 15.01.2016.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-9.
4. We have heard learned counsel for the complainant and have also gone through the written arguments filed by him.
5. The main grievance in the complaint against the OPs is that despite having allotted flat/Floor No.143 (First Floor) 2BHK consisting of Two Bedrooms, Drawing-Dinning, Two Bathrooms, Store and kitchen, measuring super area of 1000 sq. ft. at KSB Greens II, Kharar Landra Road, Sector 127, Mohali and executing agreement to sell dated 30.06.2014 Ex.C-2, having received Rs.6.00 lacs as booking against the agreed sale consideration of Rs.24.00 lacs, the OPs have taken no steps in furtherance of the agreement i.e. no construction, no development, no offer of possession etc. All the non compliance of the terms of agreement by the OPs, as per the complainant is an act of deficiency in service and unfair trade practice, therefore, the complainant has sought refund of the deposited amount alongwith interest which till date has not been responded to by the OPs.
6. In order to prove the allotment of flat in question the complainant has relied on the agreement to sell Ex.C-2 duly executed between the parties. The agreement to sell contains all the terms and conditions which are binding on the parties. As per agreement to sell, the total sale consideration of the flat was Rs.24.00 lacs, out of which Rs.6.00 lacs has been paid as booking amount and the said amount has been duly received and acknowledged by the OPs as is evident from Page-2 of agreement Ex.C-2. The remaining amount of Rs.18.00 lacs was to be paid by the complainant on possession. As per Clause 8 of the agreement the possession of the flat was to be given to the complainant on or before 31.03.2015. There is nothing on record to show on the part of the OPs that they have issued offer of possession letter to the complainant on or before 31.03.2015. As per agreement to sell the remaining amount was to be paid by the complainant only on offer of possession. Therefore, in the absence of any document showing offer of possession of flat, the complainant cannot be termed to be a defaulter in making the balance payment of the agreed sale consideration. The complainant on the other hand pleaded that there is no growth and development at site as the OPs have not raised any construction on the site and this fact has been duly corroborated by the complainant through his sworn affidavit. There is no rebuttal evidence from the side of the OPs as they have chosen not to participate in the present proceedings despite proper and effective service. Thus, the complainant has successfully proved his case of deficiency in service and unfair trade practice on the part of the OPs.
7. The act of the OP being an act of unfair trade practice and deficiency in service i.e. withholding the amount of Rs.6,00,000/- has certainly caused financial loss and mental agony to the complainant. Therefore, the complainant deserves to receive back his deposited amount alongwith interest @ 12% per annum with effect from the date of deposit till realisation. The grant of said rate of interest on the deposited amount is in consonance with the orders passed by the Hon’ble Punjab state Consumer Disputes Redressal Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others, 2014(2) CLT 401.
8. The complaint, therefore, is allowed with the following directions to the OPs:
(a) to refund to the complainant the deposited amount of Rs.6,00,000/- (Rs. Six lacs only) with interest thereon @ 12% per annum from the date of deposit till actual realisation.
(b) to pay to the complainant lump sum compensation of Rs.25,000/- (Rs. Twenty five 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 10, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
