DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.373 of 2016
Date of institution: 21.06.2016 Date of decision : 07.03.2018
1. Bhaeo Kirpal Singh aged about 30 years son of Shri Gurcharan Singh.
2. Gurcharan Singh aged about 74 years son of Shri Saudagar Singh
Both residents of village Satiewala, P.O. Shaheed Bhagat Singh Engineering College, District Ferozepur.
…….Complainants
Vs
1. M/s. K. Soni Builders & Promoters Pvt. Ltd., registered under the Companies Act, 1956 having its Corporate Office at SCO No.250 (Top Floor), Sector 44-C, Chandigarh & registered office at SCF No.13-14, Chajju Majra Road, Sector 126, Greater Mohali, Kharar (Punjab) through its Director Sh. Kuldeep Soni.
2. Sh. Kuldeep Soni, Director, M/s. K. Soni Builders & Promoters Pvt. Ltd., registered under the Companies Act, 1956 having its Corporate Office at SCO No.250 (Top Floor), Sector 44-C, Chandigarh & registered office at SCF No.13-14, Chajju Majra Road, Sector 126, Greater Mohali, Kharar (Punjab)
3. Sh. Ved Parkash Sharma, M/s. K. Soni Builders & Promoters Pvt. Ltd., registered under the Companies Act, 1956 having its Corporate Office at SCO No.250 (Top Floor), Sector 44-C, Chandigarh & registered office at SCF No.13-14, Chajju Majra Road, Sector 126, Greater Mohali, Kharar (Punjab)
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Shri Pushpinder Kaushal, counsel for the complainants.
OPs ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complaint under Section 12 of the Consumer Protection Act filed by complainants by claiming that on assurances and promises of OPs, they were allured to purchase one 2BHK (ground floor) Flat No.50 consisting of two bed rooms, drawing-dinning, two bathrooms, store, kitchen with super area of 1165 sq. ft. approximately at KSB Greens-II, Kharar-Landran Road, Sector 127, Mohali. OPs assured that approvals from Governmental Authorities are under way. The said flat was booked on 05.11.2013 by paying an amount of Rs.5,40,000/-. Rs.2.00 lakhs were paid as booking amount vide cheque No.065624 dated 05.11.2013 drawn on State Bank of Patiala, but Rs.3,40,000/- was paid in cash. Total cost of the flat was Rs.27.00 lakhs. Balance amount was payable in installments. Agreement of sale dated 05.11.2013 was duly executed between complainants and OPs through OP No.2. Possession of the flat was to be delivered in November, 2014. Though period of more than two years has elapsed, but despite that not even a single brick has been laid on the site. OPs have collected crores of rupees from innocent persons like complainants. As no development work was carried on the site and as such complainants have not paid further installments. Status construction report was sought from OPs on 19.06.2014 and 27.10.2014 by sending letters through registered post, but no information provided to complainants. Complainants again visited office of OPs about 6 months prior to filing of complaint with request to OPs to refund the amount with interest because OPs failed to deliver possession within stipulated period and have not developed the site, but no response again received. No offer letter of possession ever sent by OPs till date. Rather OPs are not in a position to deliver possession. As various attempts of complainants to get possession or receive back the amount remained futile and that is why this complaint for seeking refund of Rs.5,40,000/- with compounded interest @ 12% P.A. from the date of making of payments till actual realisation. Compensation for mental harassment and agony of Rs.7.00 lakhs and litigation expenses of Rs.35,000/- more claimed.
2. Registered notice sent to OPs were received with report that they have left without addresses. Latest correct addresses of OPs even was furnished on 16.02.2017 by filing application and thereafter registered notices sent on those addresses also, but those were received with the report as if no OP No.1 firm exists at the given address, but OP No.2 has closed the office and OP No.3 left without address. So service of OPs got effected through substituted service by way of publication of notice in Daily Chardi Kala, Patiala, but none appeared for OPs despite publication and as such OPs were proceeded against ex-parte.
3. Counsel for complainants tendered in evidence affidavit Ex.CW-1/1 of complainant Gurcharan Singh alongwith documents Ex.C-1 to C-3 and thereafter closed evidence.
4. Written arguments not submitted, but oral arguments of counsel for complainant heard and records gone through.
5. Complainants through affidavit Ex.CW-1/1 as well as through agreement of sale Ex.C-1 have been able to prove that they purchased Flat No.50 referred above from OPs by paying booking amount of Rs.5,40,000/-. As acknowledgment of receipt of this amount of Rs.5,40,000/- made by OPs through agreement of sale Ex.C-1 itself, and as such certainly complainants able to prove that they have paid Rs.5,40,000/- to OPs. After paying of this booking amount of Rs.5,40,000/-, three installments of Rs.6,75,000/- each were payable by complainants in February, May and August 2014. Balance amount of Rs.1,35,000/- was payable on possession in November, 2014 as per schedule worked out in the agreement itself. Complainants admit that after paying amount of Rs.5,40,000/- on 05.11.2013, they have not paid any other amount. So it is obvious that amount of installments of Rs.6,75,000/- each not paid in February, 2014 and again in May, 2014 and in August, 2014. So certainly complainants themselves committed default in not abiding by terms and conditions of the contract, qua payment of second to 4th installments. It is vehemently contended by counsel for complainants that these installments not paid because no development works were carried on the spot. Virtually project in question has been abnormally delayed or is abandoned by OP No.1 and 2. So complaint deserves to be allowed against them only.
6. In case of Ruhi Seth versus IREO Grace Realtech Pvt. Ltd, bearing Consumer Case No.1464 of 2017 decided on 13.11.2017 by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi it has been held that if in case of purchase of plot/flat, the consumer complaint is filed for refund of the already paid amount only, then virtually the party do not want to go ahead and conclude the agreement for sale of goods, due to which the value of the deposited amount plus claimed compensation alone should be taken into consideration. By applying the ratio of this case to the facts of the present case, it is obvious that this Forum has pecuniary jurisdiction.
7. As per Clause-3 of agreement of sale Ex.C-1, if for any reason the whole or part of the project is abandoned or abnormally delayed, then no claim will be preferred except that allottee’s money will be refunded with simple saving bank interest rate. As progress of the project work in question not achieved because no construction work carried on the spot and as such complainants sought refund of the paid amount with interest by filing this complaint. Before this complainants filed applications Ex.C-2 and Ex.C-3 with OP No.1 and 2 for claiming as if the project is abnormally delayed and seems to be abandoned and as such refund of the paid amount may be done. Through Ex.C-2 and Ex.C-3 of dates 19.06.2014 and 27.10.2014, the complainants claimed that no construction work is carried on the spot and that is why installments not to be paid by them. So for the first time complainants claimed for non payment of installments because of non start of construction work on 19.06.2014. However, second and third installments of Rs.6,75,000/- each were payable in February 2014 and May, 2014 and complainants have not claimed anything qua non payment of these 2nd and 3rd installments through applications Ex.C-2 and Ex.C-3 and as such virtually fault also lays with complainants in not abiding by terms and conditions of contract of sale. However, OPs have not carried any construction work on the spot and as such they have virtually cheated the complainants by not starting the project work on the spot. In view of this, certainly OPs liable to refund the received amount with interest. Though in Clause-3 of Ex.C-1 it is mentioned that refund will be with simple saving bank interest rate, but that condition is certainly harsh and oppressive in view of the fact that it is stipulated at Page-2 of agreement Ex.C-1 itself that in case installments not paid by due dates by the allottees, then interest chargeable by OPs will be at the rate of 18%. If OPs themselves seek charging of interest @ 18% per annum on the delayed paid installments amount, then it is certainly inequitable that interest payable by them due to abandonment of the project will be at the saving bank interest rate. However, by sticking to condition No.3 of Ex.C-1 it has to be held that complainants are entitled for refund of paid amount with simple interest @ 12% per annum because the same rate of interest usually is granted in such like cases. As refund of the amount is sought by complainants under compelling circumstances due to non start of construction work by OPs for long, and as such certainly complainants suffered lot of mental tension, agony and harassment, due to which they are entitled for compensation under this head alongwith litigation expenses, but of reasonable amount, more so when they themselves committed default in not abiding by schedule of payment contemplated through agreement Ex.C-1 itself. That interest @ 12% per annum should be allowed from the date of filing of complaint namely 21.06.2016 till payment because complainants themselves were disclosed at the time of booking that sanctions/approvals from the competent authorities yet to be got as claimed in the complaint itself. So virtually complainants themselves took risk of availing services of OPs knowing fully well that approvals may not be granted by the authorities concerned. Though condition No.15 (i) of Ex.C-1 provides that the allottee shall be refunded the amount without interest as per discretion of OPs but that condition also is harsh and oppressive because when OPs have accepted the amount for allotment of specific flat, then it was the duty of OPs to take steps for developing the project, but they failed to do so and as such keeping in view the fact that both the parties have committed default by way of breach of terms and conditions of agreement, it is fit and appropriate to order refund of the received amount by OPs with interest @ 12% per annum from the date of filing of complaint till payment.
8. As a sequel of above discussion, the complaint allowed against OP No.1 and 2 with direction to refund the received amount of Rs.5,40,000/- with interest @ 12% per annum w.e.f. the date of filing of the complaint namely 21.06.2016 till payment. Compensation for mental agony and harassment of Rs. 20,000/- and litigation expenses of Rs. 5,000/- more allowed in favour of the complainant and against OP No.1 and 2. Complaint against OP No.3 is dismissed. Payment of these amounts of compensation and litigation cost be made within 30 days from receipt of certified copy of order. Certified copies of the order be supplied to the parties free of costs. File be indexed and consigned to record room.
Announced
March 07, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
