BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.637 of 2014
Date of institution: 03.11.2014
Date of Decision: 23.07.2015
1. Amit Kumar son of Sham Lal.
2. Arun Kumar son of Sham Lal
Residents of 274, Phase-7, Mohali.
……..Complainants
Versus
M/s. Taneja Infratech Ltd. (formerly known as TDI Ltd.), SCO 51-52, Sector 118, Chandigarh-Kharar Road (NH-21) Mohali.
………. 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 Baldev Raj, authorised representative of the complainants.
Shri Manoj Vashishtha, 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) pay them Rs.12,30,000/- which includes interest @ 18% per annum from 04.08.2008 to 03.03.2014.
(b) pay them Rs.2,00,000/- for mental stress and agony.
(c) pay them Rs.5,000/- as litigation expenses.
The case of the complainants is that they submitted an application on 28.09.2008 with the OP for allotment of a unit measuring 750 sq. ft. in their project at a basic sale price of Rs.4,000/- per sq. ft. The total cost of the unit was Rs.30,00,000/-. Alongwith the application the complainant also deposited Rs.6.00 lacs through two cheques dated 09.06.2008 which were acknowledged by the OP vide receipt dated 04.08.2008. The complainants were provisionally allotted Unit No.F8-018C on the 8th Floor in the project of the OP. However, on 15.09.2011 it was changed to unit No.F7-203 measuring 678.85 sq. ft. on 7th floor. The complainants sought the reasons for change of the unit vide their letters dated 07.02.2012, 15.04.2012, 24.02.2012, 20.06.2012 as the OP was to give the possession within 2 years. Due to non payment of installments by the complainant, the OP cancelled the registration of the applicants vide letter dated 22.08.2012. Upon this the complainants requested the OP vide their letter dated 30.07.2013 to refund Rs.6.00 lacs with interest. The amount has not been refunded to the complainant despite issuance of various letters and personal visits. The complainants also submitted application to SSP Mohali on 08.05.2014 and enquiry was conducted and as per the report of the police, the OP was ready to make the payment of booking amount of Rs.6.00 lacs but without any interest. With these allegations the complainants have filed the present complaint.
2. After admission of the complaint, notice was sent to the OP. The OP appeared and filed reply. It has pleaded in the preliminary objections that at the time of submission of application the complainants opted for payment Plan-B. As per Clause 8 of the application form the complainants were required to adhere with the payment schedule and upon failure the OP had the right to cancel the allotment. The complainants were duly intimated about change of the unit vide letter dated 15.09.2011 and in this letter demand of Rs.4,29,046/- was made from the complainants towards sale consideration. As the complainants were not having sufficient funds they could not make the payment despite issuance of reminders. Thus the OP cancelled the registration vide letter dated 22.08.2012 and the complainants were asked to surrender the original receipt which they did not. The complaint is also time barred as they deposited the payment on 28.09.2008 and registration was cancelled on 22.08.2012 and the present complaint has been filed on 03.11.2014. The complainants are not consumers as defined under the Consumer Protection Act. On merits also the OP has taken similar stand and denied the averments of the complaint. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
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-15.
4. To rebut the allegations of the complainants, the OP tendered the affidavit of Rohit Gogia, its authorized signatory Ex.OP-1/1 and documents OP-1 to OP-9.
5. We have heard authorized representative of the complainants and learned counsel for the OP and have also gone through their written arguments.
6. Before we go on merits of the case, it will be pertinent to go through the legal objection raised by the OP regarding the limitation of filing the present complaint. As per the OP the complaint is time barred as the complainants deposited the payment on 28.09.2008 and registration was cancelled on 22.08.2012 due to non payment of remaining amount. Therefore, the cause of action if any would have arisen in favour of the complainants from 22.08.2014 i.e. date when the cancellation letter has been communicated to them and as per Consumer Protection Act, the complaint could have been filed within two years i.e. upto 21.08.2014 whereas as the present complaint has been filed on 03.11.2014. Thus, the complaint is time barred.
7. The complainants have filed application for condonation of delay in filing the present complaint and sought indulgence of this Forum on the ground that the delay on their part is not willful or intentional. In fact they have been following the matter with the police authorities seeking refund of the deposited amount since 09.05.2014 and finally on 14.08.2014 the police authorities informed them their inability to look into their grievance and suggested them to approach the appropriate court for redressal of their grievance. Therefore, they have filed the present complaint which otherwise is not time barred as they have filed the complaint within time after receiving the communication from police authorities under RTI Act on 14.10.2014 and thereafter they have filed the present complaint on 03.11.2014. After perusing the record it has been found that the complainants have set out their case for condonation of delay on bonafide ground that they have been pursuing the matter with police authorities and the delay is not due to willful default on the their part. Therefore, there is no delay in filing the present complaint and the application for condonation is considered and we find that the complaint is within limitation and the objection of the OP in this regard is not sustainable.
8. Now on merits, it is admitted fact that the complainants were provisionally allotted Unit No.F8-018C on the 8th Floor in the project of the OP. The agreed sale price of the unit was Rs.30.00 lacs. The complainants have deposited Rs.6.00 lacs on 28.09.2008 being part consideration and the remaining amount was to be paid subsequently as per construction linked plan as opted by the complainants as per terms and conditions laid down in application form. The possession of the unit was to be delivered by the OP within 30 days from the date of final notice issued by the OP. Therefore, the payment of the agreed consideration and adherence to the payment plan opted by the complainants was having direct bearing on the status of delivery of the unit. As per the complainants, the OP had without their consent changed the number and location of the flat from 8th floor to 7th floor and from 750 sq. ft to 678.85 sq. ft. The grievance of the complainants is that without any notice regarding development of the project at site and demand of construction linked amount as opted plan, the OP has cancelled the allotment and forfeited the deposited amount of Rs.6.00 lacs. The act of the OP, therefore, is an act of deficiency in service and unfair trade practice.
9. While denying the deficiency in service and unfair trade practice and justifying its act of cancellation and forfeiture of the amount, the OP has relied upon Ex.OP-3 to OP-8 to show that from time to time reminders for due payments have been issued to the complainants and giving them information of status of the construction work at the site. The complainants have admitted having received the reminders Ex.OP-3 to OP-8. If the complainants were not satisfied with the development of construction at the site after receiving the said reminders they have never raised any issue with the OP ever and also chosen not to make the due payments as per demand. Therefore, the complainants cannot take benefit of their own wrong and the OP is well within its right to cancel the registration due to non payment of due amount as per booking application form.
10. We have not found anything on record from the side of the complainants to show that the progress of work as mentioned in the reminders Ex.OP-3 to Ex. OP -8 was not at the site. Therefore, in the absence of any rebuttal of the OP’s documents Ex.OP-3 to Ex.OP-8, no benefit of non construction at the site and demand of due payment by the OP, is available to the complainants. Thus we do not find anything wrong on the part of the OP for cancellation of registration vide Ex.OP-9.
11. So far the non refund of the deposited amount of Rs.6.00 lacs is concerned, the complainants were asked to surrender the original receipts with the OP vide Ex.OP-9 and there is nothing on record to show that till date the complainants have deposited the original receipts with the OP. Therefore, due to their own omissions, the complainants cannot allege any deficiency in service or unfair trade practice against the OP. So much so even before the police authorities the complainants have sought refund of Rs.6.00 lacs and the OP had agreed to refund the deposited amount as per company rules. The OP has not placed any company rules governing refund of the deposited amount. Therefore, it will be appropriate to direct the OP to refund the deposited amount of the complainants without any deduction alongwith interest at the rate of 15% as the OP has without giving possession of the unit to the complainants utilized their money from 28.09.2008 and the cancelled unit of the complainants still remains the property of the OP and the OP has not been put to any loss. Therefore, the act of the OP for not refunding the deposited amount despite giving undertaking before the police authorities is an act of deficiency in service and unfair trade practice.
12. The OP being the seller of the unit and service provider having withheld the deposited amount and non refund of the same has indulged into unfair trade practice and caused financial loss and mental agony to the complainants being consumer, for which the complainants deserve to be compensated.
13. Hence the complaint is allowed with the following directions to the OP;
(a) to refund Rs.6.00 lacs (Rs. Six lacs only) alongwith interest @ 15% per annum from the date of deposit till realization on deposit of original receipt by the complainants with the OP.
(b) to pay to the complainants a 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.
July 23, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
