BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.189 of 2015
Date of institution: 27.04.2015
Date of Decision: 24.09.2015
Akhil Bhanot, resident of 3727, Sector 46, Chandigarh.
……..Complainant
Versus
1. M/s. UK Homes Pvt. Ltd. through its M.D. at Capital Greens, Zirakpur Patiala Highway VPO Karala, Banur, District Mohali, Punjab.
2nd Address: UK Homes, UK Group, SCO No.68-70, Level 4 Sector 17, Chandigarh.
2. Uday Raj Singh M.D. UK Homes Pvt. Ltd. at Capital Greens, Zirakpur Patiala Highway VPO Karala, Banur, District Mohali, Punjab.
2nd Address: UK Homes, UK Group, SCO No.68-70, Level 4 Sector 17, Chandigarh.
OP No.2 given up from the array of the OPs by the complainant vide statement dated 20.07.2015.
………. 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 Mandeep Singh Saini, counsel for the complainant.
OP No.1 Ex-parte.
OP No.2 already given up.
(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:
(a) pay him Rs.15,93,000/- with interest @ 22% per annum from 27.01.2015 till realisation.
(b) pay him Rs.1,00,000/- for physical and mental harassment.
(c) pay him Rs.25,000/- as litigation expenses.
The case of the complainant is that he signed MOU with the OPs for purchase of a plot. As per Clause 3 of the MOU, the complainant was at liberty to withdraw his amount from the OPPs within 15 months but after 12 months with amount of 18% profit on it in case he do not wish to purchase of allotted plot. The OPs have already issued post dated cheques for the same to the complainant. The complainant presented the cheque for withdrawal of his money but the cheques got bounced. The complainant tried to contact the OPs but of no use and he also sent a demand notice but that too was of no help to the complainant. Non refund of the amount is an act of deficiency in service on the part of the OPs. Hence, the complainant has filed the present complaint.
2. Notice sent to the OP No.1 received back with the report that it has left the given address. Then it was summoned through publication but none appeared for it despite publication, hence OP No.1 was proceeded against exparte on 20.07.2015.
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-6.
4. We have heard learned counsel for the complainant and have also gone through written arguments filed by him.
5. In the present complaint the complainant has booked and was allotted residential plot No.30 measuring 300 sq. yards at the basic price of Rs.9,000/- per sq. yards and total basic consideration being Rs.27.00 lacs with the OPs for their project UK Homes at Zirakpur as per MOU Ex.C-1 dated 02.01.2014 duly signed and executed between the parties. As per MOU dated 02.01.2014 the complainant has deposited Rs.15,93,000/- vide cheque No.000138 as mentioned in Clause-3 of the MOU Ex.C-1. As per clause 3 of MOU, the complainant was given liberty to withdraw the amount on expiry of 12 to execution of this MOU. If the complainant opts to such cancellation then he shall be entitled to refund of his already deposited amount alongwith return of 18% per annum interest from the OP. The complainant exercised his right to withdraw from the scheme and sought refund of the deposited amount and in lieu thereof the OPs have issued cheque dated 02.01.2015 for an amount of Rs.15,93,000/- vide Ex.C-2 which was dishonoured with the remarks ‘funds insufficient’ as per return memo dated 07.01.2015 Ex.C-3. The complainant issued legal notice under Section 138 of the N.I. Act upon the Ops and has instituted the complaint which is pending for adjudication before the court of JMIC, Chandigarh as is evident from Ex.C-4. The perusal of documents produced by the complainant duly supported by affidavit clearly shows that as per MOU Ex.C-1 the complainant has deposited Rs.15,93,000/- with the Ops and further as per MOU he has exercised the option to get cancelled the provisional allotment on expiry of 12 months of the execution of this MOU dated 02.01.2014 and the OPs have issued him cheque dated 02.01.2015. The dishonouring of the cheque upon presentation vide Ex.C-3 is an act of deficiency in service and unfair trade practice which is writ large on the part of the OPs. There is no rebuttal evidence from the Ops as they have chosen to remain absent from the proceedings before this Forum despite proper and effective service. No doubt the complainant has availed the remedy under Section 138 of the N.I. Act as is evident from Ex.C-4 showing pendency of the complaint as the subject matter of the present complaint is also the cheque No.000138 for Rs.15,93,000/- which has been dishonoured due to insufficient funds as per the return memo Ex.C-3. The complaint is maintainable under the Consumer Protection Act as the nature of proceedings under Section 138 of the N.I. Act, are entirely different than the nature of relief sought under the Consumer Protection Act. Hence the complaint is maintainable before this Forum.
6. In fact it was the duty of the drawee of the cheque i.e. OP No.1 to ensure sufficient funds in its bank account at the time of issuance of the disputed cheque No.000138 OP No.1 has failed to discharge its obligation and on presentation of cheque, the same having been returned by the banker as per return memo with the remarks funds insufficient. The act of OP No.1 in issuing the disputed cheque knowing fully well that it would not be honoured by the banker due to insufficient funds, is an act of unfair trade practice and deficiency in service and due to the acts of the OP No.1 the complainant has been deprived of the use and benefits its valuable property of Rs.15,93,000/- causing him financial loss and mental agony. Therefore, the complainant deserves the refund of Rs.15,93,000/- alongwith interest and further for mental harassment and agony the complainant deserves to be compensated. Thus on the basis of material placed before us the complainant has proved his case of deficiency in service and unfair trade practice on the part of the OP No.1 and as per the judgment of Hon’ble National Commission in New India Assurance Co. Ltd. vs. M/s. Kamboj Ultra Sound & Diagnostic Pvt. Ltd., 2014(4) CLT 33 the complainant is entitled to refund of the deposited amount alongwith interest and compensation for harassment and mental agony.
7. Hence the complaint is allowed against OP No.1 with the following direction:
(a) to refund Rs.15,93,000/- (Rs. Fifteen lacs ninety three thousand only) with interest @ 9% per annum w.e.f. 07.01.2015 i.e. date of return memo Ex.C-3.
(b) to pay lump sum compensation of Rs.20,000/- (Rs. Twenty 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.
September 24, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
