DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.439 of 2017

                                               Date of institution:  28.06.2017                                             Date of decision   :  07.12.2018

Gagandeep Singh son of Shri Hardev Singh, 5080, Sunny Enclave, Kharar.

…….Complainant

Versus

1.     M/s. N.H. Matcon, through Nitin Bansal (Managing Director), Office at Aero Homes, Village Gazipur, District Mohali.

2.     Nitin Bansal, House No.1704/ Sector 21, Panchkula.

3.     Honey Bansal (Partner), House No.1704/ Sector 21, Panchkula.

4.     Sunny Bansal (Partner), House No.1704/ Sector 21, Panchkula.

                                                        ……..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 Abhishek Gupta, counsel for complainant.

OPs ex-parte.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant purchased EWS flat from OPs for own use by paying Rs.2,75,000/-. Flat No.1 on ground floor in the project known as Aero Homes at village Gazipur in Zirakpur was to be provided and as such complainant paid amount of Rs.1,75,000/- and thereafter allotment letter was issued. Besides Rs.1,00,000/- more paid. Details of these payments are given below:

                Even after paying more than 50% of amount, OPs have not completed construction of the flat and have delayed delivery of possession of the flat by many years. Though promise for delivery of possession of flat by 30.06.2013 was made, but even after lapse of 4 years and issue of letters, said possession has not been delivered and that is why this complaint for seeking direction to OPs to deliver possession of the flat with all fittings and pay interest @ 18%. Compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.50,000/-more claimed.

2.             OPs appeared in this case and filed written reply for claiming inter alia as if complainant has not approached the Forum with clean hands because he has suppressed material facts of not making timely payments, despite existence of Clause-5 in the agreement. That clause-5 provides for forfeiture of amount in case payment not made at regular intervals to the promoter. OP No.3 Honey Bansal is not partner and he has been unnecessarily dragged in litigation. Arbitration clause exists in the agreement and as such this complaint not maintainable. Letter dated 17.04.2017 has been issued by complainant after four years just for bringing the complaint within limitation.  Time is essence of the agreement and as such complainant was required to pay installments in time, but he failed to abide by payment schedule. Outstanding amount due towards complainant is of more than Rs.5.50 lakhs including basic sale price, GST, interest etc. Complainant accepted allotment agreement with free will and consent. Admittedly cost of the flat was Rs.5.00 lakhs and complainant paid Rs.2,75,000/-. Physical possession of the flat was to be handed over upto 30.06.2013 subject to force majeure clause incorporated universally. Other allegations of adoption of unfair trade practice or deficiency in service denied one by one each.

3.             Complainant tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 and Ex.C-2 and thereafter closed evidence.  OPs failed to produce their evidence and even did not appear on many dates and as such OPs were also proceeded against ex-parte vide order dated 26.04.2018.

4.             Written arguments not submitted. Oral arguments heard and records gone through.

5.             Counsel for complainant suffered statement on 01.08.2018 to the effect that complainant prays for refund of deposited amount with interest @ 18% per annum from the dates of deposits. So now relief of complainant remains regarding refund of amount of Rs.2,75,000/- and not of getting possession of the flat.

6.             After going through complaint and the written reply, it is made out that OPs in their written statement itself have admitted as if complainant has deposited Rs.2,75,000/- on different dates. In view of this admission on part of OPs, claim of complainant fully believable that he deposited amount of Rs.2,75,000/- in all with OPs regarding which receipts, allotment letter and copy of statement  of account of complainant are produced as Ex.C-1 and Ex.C-2. Admission binds a party and as such receipt of Rs.2,75,000/- by OP No.1,2, and 4 is established. OP No.2 is Managing Director of OP No.1, but OP No.3 and OP No.4 are alleged to be partners. Managing Directors are always of Company and not of the firm. Description of OP No.3 and 4 as partners of OP No.1 enough to show that OP No.3 and 4 have been unnecessarily dragged in litigation. Amounts from complainant were received in the name of OP No.1 and not by OP No.3 and 4 and even allotment letter issued in name of OP No.1 and as such liability of refund of deposited amount remains of OP No.1 alongwith its Managing Director i.e. of OP No.2 and not of OP No.3 and 4. So complaint against OP No.3 and 4 merits dismissal and same is hereby dismissed.

7.             It is the case of complainant that possession was promised to be delivered by 30.06.2013, but the project has not been completed and that is why OPs not in a position to hand over possession of EWS flat in question with all necessary promised amenities. Certainly after going through allotment letter, it is made out that physical possession to be handed over to the buyer upto 30.06.2013. Force Majeure situation though pleaded, but allegations in that respect are vague because circumstances leading to force majeure situation not at all pleaded even in the written reply. So in view of this vague plea being taken, it has to be held that physical possession of the flat not handed over after about four years upto filing of complaint, despite the fact that assurance through Clause-8 of the allotment letter made for delivery of possession by 30.06.2013. That certainly is unfair trade practice on part of OP No.1 and 2. OP No.1 and 2 illegally retained deposited amount of complainant and as such in view of law laid down by Hon’ble State Consumer Disputes Redressal Commission Punjab in CC No.716, 789, 835 etc. of 2017 titled as Mangal Singh Kondal & others Vs. Bajwa Developer & Another and First Appeal No.318 of 2018 titled as Harpreet Singh vs. M/s. Bajwa Developers Limited & another,  decided on 30.07.2018 complainant is entitled for refund of deposited amount with interest @ 12% per annum from the dates of deposits till payment. Even complainant entitled for compensation for mental harassment and agony and to litigation expenses also.

8.             As a sequel of above discussion, complaint allowed against OP No.1 and 2 only with direction to them to refund the received amount of Rs.2,75,000/- (Rs. Two Lakhs Seventy Five Thousand only) alongwith interest @ 12% per annum from the dates of deposits till payment.  Compensation for mental agony and harassment of Rs.20,000/- (Rs. Twenty thousand only) and litigation expenses of Rs.5,000/- (Rs. Five thousand only) more allowed in favour of complainant and against  OPs.  Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Complaint against OP No.3 and 4 is dismissed. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

December 07, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                       (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member