District Consumer Dispute Redressal Forum,
SAS Nagar, mohali
Complaint No. 42 of 2017
Dated of institute 18.01.2017
Decided On 25.04.2018
Mr.Neeraj Thakur S/o Sh.Puran Singh Thakur through his Special Power of Attorney Holder Sh. Suresh Kumar Rana S/O Sh. Khazan Singh R/o Flat No. 8, Mansa Devi Complex, Sector 5, Panchkula.
Complainant………
Vs
- M/s RKM Housing Limited having office at SCO No. 1,2,3,4, behind Chandigarh Engineering College, Sector 112, Landran, SAS Nagar ( Mohali).
- Mr. Kamaljit Singh Ahluwalia , Authorized Signatory M/s RKM Housing Limited Resident of House No. 1568, Sector 34-B, Chandigarh.
Opposite Parties…..
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member
Present:- Sh.Rajat Chopra, cl for the complainant
Sh.S.K Garg, cl for the OPs
Order by :- Sh. G.K. Dhir, President.
Order
Complainant in June, 2009 purchased plot measuring 100 Sq.Yards from Mohali Tenant Welfare Cooperative House Building Society Limited, after representation of officials of Society that land was supposed to be in Sector 112 behind the Landran College, Mohali. Cost of the plot was Rs. 6400 per Sq.Yards and as such the same was of amount of Rs. 6,40,000/-. On the allurement of the representative or the officials of the OP Society, the plot was booked by depositing an amount of Rs.1,60,000/- through cheque dated 01.06.2009 drawn at the ICICI Bank. Rs.5110/- was deposited as membership fee and administration charges. Complainant on asking of officials of the OPs deposited Rs. 3,00,000/- more as development charges on 14.08.2010. After deposit of the 50% of the development charges, the complainant was disclosed as if the location of the plot has been shifted from Mohali Tenant Welfare Cooperative Housing Building Society Limited to RKM Housing Limited. It was disclosed that location is shifted from Sector 112 to Sector 111, due to which the complainant will have to make the payments in favour of RKM Housing Limited instead of Mohali Tenant Welfare Cooperative House Building Society Limited. The OPs assured that in case the project is abandoned or the OPs do not remain in a position to reserve the plot within a period of 18 months, then the entire paid amount will be refunded with interest @ 10%. Piece of land, on which the plots were to be carved out were not shown to the complainant until that time. However on 15.05.2011 a memorandum of understanding was signed by authorized representative of the OPs. Basic sale price of the plot therein was mentioned as Rs. 6,40,000/-. Possession was assured to be delivered with complete development works within 2 years from the date of signing of the MOU. Standard plot buyer’s agreement was to be executed as per clause 6 of MOU, but no such agreement had been executed till date. Provisional allotment of the plot bearing no 716 measuring 100 Sq. Yards in Sector 112, SAS Nagar , Mohali was granted in favour of the complainant, but later on location of the same arbitrarily changed to plot no. 14 measuring 106 Sq.Yards, Sector 112. Mohali. The complainant had been paying installments as per demand of the OPs, but the OPs failed to deliver the possession of the plot within stipulated time. Till October 2013, an amount of Rs. 11,08,000/- except 50% of the development charges have been deposited. Balance amount to be paid only on showing of the plot by the OPs to the complainant. On inquiry made by the complainant, officials of the OPs disclosed as if the plot of size of 106 Sq.Yards has been carved out, due to which the complainant will have to pay extra price for extra 6 yards of area @ Rs.15,000/- Sq. Yard. This cost was much higher than that of the initially fixed one at Rs. 6400/- per sq. yard and as such the complainant under compelling circumstances made payment of the same in hope that he will get the plot soon. However when the complainant visited the project site in 2014, then he was shocked to see that there was no development carried on the site. On contacting the officials of the OPs they disclosed as if efforts are being made for delivering the possession, but after completion of the development work of roads. Possession certificate dated 11.04.2014 was issued by the OPs in favour of the complainant but that was a paper transaction only. No development works even were found there on the site, when the complainant visited in 2015. The site in question lacks basic amenities and facilities because there is no boundary wall or green belt developed on the spot .Even no proper arrangement for water supply, sewerage and electricity has been made. No connectivity to the GMADA line/project approvals from GMADA has been obtained. Thereafter the complainant sent letter dated 25.11.2015 to the OPs for requesting them to refund the received amount. An amount of Rs. 1,00,000/- was refunded through net banking transaction in Punjab National Bank account of the complainant on 24.02.2016. Promise for refund of the rest of the amount within one month was made but no further refund made by the OPs. Despite issue of legal notice the balance amount has not been refunded and as such this complaint filed for seeking refund of the total amount of Rs.10,08,000/- with interest @ 15 % per annum, from the actual date of deposit. Compensation for mental agony and harassment of Rs. 3,00,000/- and litigation expenses of Rs. 50,000/- more claimed by pleading deficiency in service on the part of the OPs.
2. In reply submitted by the OPs, it is pleaded inter-alia as if the complaint is not maintainable in the present form; complainant has not approached this Forum with clean hands because of suppressing of true facts; no cause of action alleged to have accrued in favour of the complainant and moreover the complainant is alleged to be having no locus standi . The complainant has already surrendered his plot to the OPs vide request letter dated 25.11.2015 and as such question of delay in handing over the possession of the plot to the complainant against his contribution does not arise. The complainant is contributor of the OPs project and not a customer. Membership of the complainant has been cancelled vide letter dated 31.03.2011. The complainant is alleged to be not a consumer of the OPs. As per clause no. 7 of the MOU, if the OPs did not remain in position to reserve the developed plot for any other reason within 18 months, then the complainant will be entitled to get the refund of the deposited amount with simple interest @ 10% P.A. No commitment was made for delivery of the possession within two years. The complainant invested his amount in plot measuring 100 Sq.Yards in RKM Housing as an investor So long as buyer agreement was not executed, the complainant to remain as an investor. It was on request of the complainant that he was given plot measuring 106 Sq. Yards in Sector 111 Mohali after cancellation of plot no. 716 in Sector 112, Mohali. That plot was reserved by the OPs for the complainant in view of contribution to the fund by him. The complainant failed to comply with the terms and conditions of MOU and as such there is no deficiency in service on the part of the OPs. Plot was reserved subject to other necessary sanctions and permissions of the competent authority to be got by the OPs. It is claimed that the plot has been developed and there is no delay on the part of the OPs. Rather it is claimed that the complainant failed to pay the remaining contribution fund including the development charges as per demand of the OPs in time. Due to recession in the property business, now the complainant does not want to continue with his investment qua purchase of property for business purposes. The complainant disclosed the OPs many times about the suffering of loss in his investment due to recession in the market and as such now the complainant cannot get benefit of his own wrong. Basic amenities like that of sewerage, water pipes and electricity lines have already been provided and development of the sector is in full swing. Works are carried out as per GMADA norms. The complainant has harassed the OPs. Admittedly the OPs have returned amount of Rs. 1 lac to the complainant after surrender of plot by him in favour of the OPs. Rather the complainant called upon the OPs to sell out his plot to any other buyer. Amount of Rs. 1 lac was refunded to the complainant on his request due to some urgency only. Other facts of the complaint denied by claiming that false and baseless allegations are leveled in the complaint.
3. Complainant to prove his case tendered in evidence affidavit of Sh.Suresh Kumar Rana, Special Power of Attorney Ex CW1/1 along with documents Ex C-1 to Ex C-11 and thereafter counsel for the complainant closed the evidence.
4. On the other hand counsel for the OPs tendered in evidence affidavit Ex OP1/1 of Sh. Kamaljit Singh Ahluwalia, Managing Director of RKM Housing along with documents Ex C-1 to Ex C-8 and thereafter closed the evidence.
5. Written arguments not filed by any of the parties. Oral arguments heard and records gone through.
6. From the pleadings of the parties, submitted affidavits as well as produced evidence, there remains no doubt that the complainant after becoming the member of the Mohali Tenant Welfare Cooperative House Building Society Limited, deposited Rs. 5110/- with President of that Society through receipt no. 420 dated 01.06.2009. It was after becoming of complainant as member that he deposited amount of Rs.1,60,000/- on 01.06.2009 through receipt Ex C-2 but further amounts of Rs. 5,30,000/-; 1,60,000/- and Rs. 2,58,000/- through receipts dated 14.08.2010, 12.09.2009 and 29.10.2013. So this documentary evidence produced on record undoubtedly establishes that the complainant has deposited an amount of Rs. 11,08,000/- in all, besides membership fee of Rs. 5110/- for becoming member of the Mohali Tenant Welfare Cooperative House Building Society Limited. However, amount of Rs. 2,58,000/- through receipt dated 29.10.2013 was deposited with RKM Society and as such submission advanced by counsel for the complainant has force that though initially the complainant became member of the Mohali Tenant Welfare Cooperative House Building Society Limited on submission of application form Ex C-3 and deposit of membership fee of Rs. 5110/-, but in view of non availability of any plot or on account of non development of any project by the said society, the complainant was shifted to RKM Housing Limited. It was on account of this that provisional allotment letter with respect to plot no. 716 measuring 100 Sq.Yards in Sector 112, SAS Mohali was issued by the OPs in favour of the complainant.
7. Even MOU Ex C-5 dated 15.05.2011 was entered between the complainant and the OPs through which it was admitted by the OPs as if Rs. 6,40,000/- has been contributed by the complainant for purchase of plot measuring 100 Sq. Yards @ Rs. 6400/- per Sq.Yard. In clause No. 4 of Ex C-5 itself it is admitted by the OPs as if the complainant alone contributed a sum of Rs. 1,50,000/- towards 50% of the development charges. This acknowledgment of liability by the OPs through Ex C-5 fortifies the claim of the complainant that he has deposited the amount of Rs. 11,08,000/- actually and that is why receipts in his favour issued by the OPs and its Predecessor.
8. Contents of Ex C-9 further establishes as if OP No.1 allotted plot no. 41 measuring 106 Sq.Yards to the complainant in RKM Housing Limited at Sector 111 SAS Nagar Mohali in view of the MOU Ex C-5. So certainly submission advanced by counsel for the complainant has force that though earlier he was allotted plot no. 716 measuring 100 Sq.Yards in Sector 112 of Mohali by the OPs but later on location of the same changed to plot no. 41 in Sector 111, Mohali. This contention gets support from these referred documents. However, development work not carried on the spot is a fact borne from the photographic depiction placed as Ex C-7 ( 3 in number) on the record. It was on account of non providing of the basic amenities like that of constructed roads, lights, sewerage and water facilities that the complainant applied for refund of the deposited amount by submitting application Ex C-8 dated 25.11.2015 with the OPs. Admittedly after filling of this application, an amount of Rs. 1 lac has been refunded to the complainant through his savings account with Punjab National Bank on 24.02.2016 regarding which reflection made in statement of account, copy of which is produced on record as Ex C-10. Even the Ops in their written statement and in affidavit Ex OP1/1 of Shri Kamaljit Singh, Managing Director admitted about the refund of this amount of Rs. 1 lac to the complainant. Question of refund of this amount of Rs. 1 lac to the complainant by the OPs arises only, if the OPs acquiesced in the act of complainant in surrendering the plot by him. It was on account of the surrender of the plot by the complainant that refund of Rs. 1,00,000/- made by the OPs to the complainant. That certainly was made by keeping in view the terms and conditions of MOU Ex C-5 = Ex OP/1 and also by keeping in view the terms and conditions produced on record Ex OP/3. After going through clause 6 of Ex C-5 = Ex OP/1 as well as clause 6 of Ex OP/3, it is made out that if for any reason the development of the project is delayed, then allottee will have to either wait till the approvals for the project from the competent authorities received or he can seek refund of the amount paid up-to-date with simple interest @ 10% P.A. . As refund of the deposited amount sought by the complainant by filing application Ex C-8 and part of the same was made on 24.02.2016 as reflected in Ex C-10 by the OPs themselves and as such now the Ops in view of clause 6 Ex C-5 = Ex OP/3 cannot claim that they will not refund the balance amount. As the OPs themselves refunded an amount of Rs. 1,00,000/- to the complainant by accepting written request Ex C-8 of the complainant and as such refund must be of the entire paid amount and not of the part of the paid amount, because of clause 6 of Ex C-5 and OP/3 referred above. The refund of balance amount of Rs. 10,08,000/- has not been made and as such the complainant by keeping in view the terms of MOU and Ex C-5 = Ex OP/1 and Ex C-3 entitled for the refund of the entire balance paid amount of Rs.10,08,000/- with interest @ 10% P.A from the date, on which the refund made for the first time of part of the amount on 24.02.2016 till realization. As development activities not carried on the spot by the OPs and as such they cannot blame the complainant for non-payment of the due amounts. Rather the evidence discussed above establishes that paper possession through Ex C-9 alone was delivered to the complainant, despite the fact that he has paid the entire basic price along with other charges. It is on account of the fault of the OPs that the complainant had to suffer and filed this complaint, and as such the complainant is entitled for compensation of mental agony and harassment along with litigation expenses of reasonable amount.
9. Counsel for the Ops has placed reliance on ratio of case Randhir Singh and Anr vesus Omaxe Chandigarh Extension Developers Pvt Ltd, 2015 (1)CPJ 414 (NC) for arguing that the complainant is not entitled to any interest amount because of the fault of the complainant in not paying the installments or dues in time. Ratio of that case not applicable to the facts of the present complaint because present is a case in which despite deposit of the due amounts by the complainant, the Ops failed to develop the project and hand over the possession. There was not fault on the part of the complainant in paying any of the installments amount and as such facts of the reported case are quite distinct than those of the case before us. So interest has to be allowed as per clause 6 of Ex C-5 or Ex Op/3 and Ex OP/1.
10. As a sequel of the above discussion, the complaint allowed in terms that the OPs will refund the balance amount f Rs.10,08,000/- to the complainant with interest @ 10% P.M w.e.f 24.02.2016 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 the OPs. Payment of these amounts of compensation and litigation cost be made within 30 days from receipt of certified copy of order. Liability of both the OPs will be joint and several. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
April 25, 2018
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
