DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.1064 of 2017
Date of institution: 14.12.2017 Date of decision : 05.07.2018
Ram Singh son of Diwan Singh, resident of village Mubarikpur, Tehsil Derabassi, Punjab.
…….Complainant
Versus
1. M/s. Vrindavan Gardens at Peermuchhalla, NAC Zirakpur, District Mohali, Punjab through its Representative/ Owners/Authorised Person/Director.
2. Shri Mukesh Goel, Director of M/s. Vrindavan Gardens at Peermuchhalla NAC, Zirakpur, District Mohali.
3. Shri Rakesh Goel, MD of M/s. Vrindavan Gardens at Peermuchhalla NAC, Zirakpur, District Mohali.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu,
Mrs. Natasha Chopra, Member.
Present: Shri Harsh Nagra, counsel for the complainant.
OPs ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, after meeting OPs on 17.11.2014 entered into buyer agreement with OPs for purchase of flat under EWS scheme category in Peermuchhalla, NAC Zirakpur area of Mohali District. Possession was to be handed over within 18 or 21 months from the date of signing of agreement. So virtually this possession was to be handed over on or before 17.08.2016. Amount of Rs.3.00 lakhs was paid in cash by complainant for booking of flat on 5th floor in Block EWS in Vrindavan Gardens. Complainant after visiting site on regular intervals found that no construction work of the project was going on. Such visit was also made in December, 2015 and as such complainant claims that physical possession will not be handed over to him as per terms and conditions of agreement. So complainant called upon OPs to refund the received amount. Action of not starting work despite assurance to allottees is unfair trade practice and as such this complaint filed for seeking direction to OPs to refund the received amount of Rs.3.00 lakhs with interest @ 18% per annum from the date of deposit. Compensation for mental harassment and agony of Rs.3.00 lakhs and litigation expenses of Rs.31,000/- more claimed. Interest @ 15% from the date of filing of complaint uptill date of actual realisation even claimed.
2. OPs are ex-parte in this case.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document Ex.C-1 and thereafter his counsel closed evidence.
4. Written arguments not submitted. Oral arguments heard and records gone through.
5. After going through affidavit Ex.CW-1/1 of complainant alongwith agreement of sale Ex.C-1, it is made out that complainant paid Rs.3.00 lakhs in cash, as booking amount on 17.11.2014 and thereafter agreement was executed between representative of OPs and complainant. Total price of the flat mentioned in agreement Ex.C-1 is Rs.12,50,000/-. As per Claus-2 of Ex.C-1 payment of price of the flat to be made as per schedule of payment of installments. These installments to be paid either by way of cash or local cheque/demand draft in favour of Vrindavan Gardens, payable at Chandigarh/Panchkula is also a term of Ex.C-1. After going through Clause-3 (c) of Ex.C-1, it is made out that due date of time set out in the schedule of payment to be automatically taken as installment call notice. So notice may or may not be issued in writing is also envisaged by Clause-3 (c) of agreement Ex.C-1. Possession of plot was to be handed over within 18 to 21 months from the date of booking but subject to timely payment of installments by complainant as per Clause-6 of Ex.C-1. In case payment of any installment is delayed beyond the due date, then complainant will have to pay interest on the due amount @ 18% per annum is also envisaged by Clause 3 (d) of agreement Ex.C-1. Despite all these clauses of payment of due amount of installments without notice, complainant has not paid any of the due installment amount after depositing the booking amount of Rs.3.00 lakhs in cash on 17.11.2014. So fault also lays with complainant in not sticking to the payment plan schedule. In view of non sticking to this payment plan schedule, complainant himself is defaulter because of non abiding by terms and conditions of agreement Ex.C-1 regarding making of payment of due installments in time. Delayed payment of installments is to attract penalty of interest @ 18% per annum payable by complainant to OPs, and as such, if OPs failed to start construction of the project, then certainly OPs also equally are at fault in not constructing the flat as well as handing over of possession within stipulated period.
6. As per law laid down in Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC), if the purchaser remained defaulter in not adhering to the installment payment plan, then he is not entitled for any interest, even though the builder had not developed the site, due to which he is not in a position to deliver possession. It is so because he who seeks equity must do equity. In case the equity seeker himself is defaulter, then he is not entitled for any interest, is the crux of ratio of above said case. Ratio of this case is fully applicable to the facts of the present case particularly when complainant not paid the due installments in time, despite the fact that payment of installments in time is a condition precedent for getting possession of the flat. So in view of this, complainant will be entitled to interest @ 12% per annum from the date of first demand put forth by him by way of filing of this complaint on 14.12.2017 till payment. Earlier interest in favour of complainant cannot be allowed in view of ratio of above cited case because of complainant himself being defaulter in not abiding by terms of agreement to pay installments in time. No notice shown to be issued by complainant to OPs for seeking refund of amount and dates on which refund sought even not mentioned and as such allegations regarding seeking of refund on earlier occasions, being vague allegations cannot be accepted as correct. In view of that also it has to be taken that first ever demand for refund put forth by complainant by way of filing of this complaint on 14.12.2017 only. The complainant suffered mental tension and agony because of non starting of construction work of the project by OPs and as such in view of his being dragged in this litigation, he is entitled to compensation for mental agony and harassment as well as to litigation expenses, but of reasonable amount.
7. As a sequel of above discussion, complaint allowed with direction to OPs to refund the received amount of Rs.3,00,000/- with interest @ 12% per annum with effect from the date of filing of complaint namely 14.12.2017 till payment. Compensation for mental harassment and agony of Rs.20,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against the OPs. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. File be indexed and consigned to record room.
Announced
July 05, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
