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

Consumer Complaint No.557 of 2016

                                             Date of institution:  07.09.2016

                                             Date of decision   :  21.03.2018

Anurag Pathania son of Late Shri Dhani Ram Pathania, # 3338, Sector 23-D, Chandigarh.

…….Complainant

Versus

1.     M/s. Sky Rock City Welfare Society, SCO 672, Sector 70, Mohali.

2.     Mr. Navjeet Singh, President, M/s. Sky Rock City Welfare Society, SCO 672, Sector 70, Mohali.

……..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 D.S. Soundh, counsel for the complainant.

                OPs Ex-parte.

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

Order

               On promoting the scheme for residential plots by OP No.1 society, complainant became member of it by depositing membership fee of Rs.5,000/-. Assurance was given to the effect that colony is Govt. approved and licence for development of colony has already been obtained alongwith other requisite licenses. 200 sq. yard plot @ Rs.9,500/- per sq. yard including CLU charges, membership fee, EDC and cost of the land was settled and that is why complainant initially paid Rs.1,90,000/- as booking amount. Application in June 2011 was submitted and thereafter on different intervals complainant paid a total sum of Rs.15,80,000/-. As per public notice issued by OPs, they were also offering plots in Shiwalik Estate, Sector 116, SAS Nagar through release of promotional vouchers. No plot can be offered for sale was also disclosed through this public notice. Though it was proclaimed through public notice that requisite licences have been obtained from PUDA/GMADA but actually the same was misrepresentation. OPs indulged in unfair trade practice and have provided deficient services because physical possession of the plot never handed over. Prayer made for directing OPs to refund the received amount of Rs.15,80,000/- alongwith interest from the date of respective deposits till the date of refund. Rs.1.00 lakh sought for mental harassment and agony, but Rs.22,000/- as litigation expenses.

2.             OPs filed joint written statement by claiming that complaint is misconceived and pre-mature. It is claimed that complainant applied for refund by submitting requisition on 01.07.2016 as per his own case, but as per condition No.4 of terms and conditions of agreement, refund can be claimed only after period of three years from the date of requisition. However, by invoking condition No.9 of terms and conditions, if an allottee failed to make scheduled payments, then the membership can be cancelled. It is claimed that through judgment delivered in First Appeal No.560 of 2015 in case titled as Romesh Garg Vs. Sky Rock and others. Hon’ble National Commission in similar circumstances has found the claim to be pre-mature. Admittedly the requisition for refund was received from complainant on 01.07.2016. It is claimed that in case the complainant deposits 90% of the amount, then he will be allotted the site as promised, but as per terms and conditions and specifications agreed between both the parties. In view of submitted requisition, cause of action has accrued to the complainant w.e.f. 01.07.2019 only for claiming refund, but complaint being filed prior thereto, is premature.

3.             Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-8 and thereafter closed evidence.  However, evidence of OPs was closed by order dated 11.07.2017.

4.             Written arguments submitted by complainant were taken on record, but none appeared for OPs and as such OPs were proceeded against ex-parte. Oral arguments heard and record gone through.

5.             Ex.C-1 is application submitted by complainant for membership of OP No.1 society and thereafter he deposited different amounts through receipts Ex.C-2 and Ex.C-4. Provisional allotment letter Ex.C-5 also was issued in favour of complainant. Perusal of photo   stat copies of receipts numbering 7 reveals that amount of Rs.15,80,000/- in fact has been deposited by complainant with OPs on different intervals ranging from 10.06.2011 to 21.07.2012. So certainly complainant able to establish that he on deposit of membership fee of Rs.5,000/- on 08.06.2011, became member of OP No.1 society and that is why provisional allotment letter Ex.C-5 was issued to him.

6.             In the note appended at Page-3 of Ex.C-5 it is specifically mentioned that possession will be handed over only on payment of entire sale consideration alongwith other dues. Total payable sale consideration is Rs.19.00 lakhs for 200 sq. yards of plot No.E-54 allotted to complainant in Sector 111-112 of SAS Nagar (Mohali), is a fact borne from contents of Ex.C-5. As the total sale consideration amount has not been deposited by complainant, and as such in view of above pointed note, certainly complainant not entitled to possession because he has not paid the entire sale consideration alongwith other dues.

7.             Clause-2 of Ex.C-5 provides that if for any reason the whole or part of the project is abandoned or execution of same becomes impossible by operation of any law or by any action of any authority, then no claim will be entertained except for refund of deposited money by the member without interest.  That execution of the project as per contention of complainant has become impossible because development work has not been started and that is why complainant approached OPs for refund of the deposited amount by sending letters Ex.C-8 dated 18.06.2014; Ex.C-7 dated 17.04.2014 and Ex.C-6 dated 13.07.2016. So it is not a case in which complainant sought the refund of the paid amount w.e.f. 01.07.2016, but it is a case in which refund of the paid amount sought for the first time on 17.04.2014 through Ex.C-6. As OPs themselves failed to deliver possession of the plot and are not in a position to deliver the same and as such certainly request sent by complainant for refund of the amount is quite appropriate. However, refund to take place after three years from the submission of request as per claim of  OPs, but that claim not acceptable  because such a condition is not found anywhere in Ex.C-5 copy of provisional allotment letter. However, as per condition No.13 of Ex.C-5 the society will endeavor to give possession of the apartment/plot to the member within 36 months from the date of allotment, but subject to force majure circumstances and reasons beyond control of builder. That allotment was done in favour of complainant on 05.12.2012 through provisional allotment letter Ex.C-5 and as such possession was required to be handed over by OPs to complainant by 04.12.2015. That possession has not been handed over and as such complaint being filed on 07.09.2016 is certainly within limitation and same is not pre-mature at all. As Clause-2 of Ex.C-5 itself provides that in case the project is abandoned or execution of the same becomes impossible, then refund of the deposited amount to take place and as such certainly complainant entitled for refund of the deposited amount of Rs.15,80,000/-. Specific amount of interest not claimed in the complaint and as such in view of the fact that complainant himself applied for refund, it is fit and appropriate to allow interest @ 8% per annum, more so when same payable by OP in the event of seeking refund of the amount by allottee as per terms printed on issued receipts produced in other cases of OP society. It looks that complainant deliberately has produced photostat copies of two receipts on single pages so as to conceal the terms printed on those receipts. In view of this entitlement of complainant for  interest will be @8% per annum with effect from the date of filing of complaint namely 07.09.2016 till payment. As complainant stood mentally harassed, as such he is entitled for compensation for mental harassment and agony and also to litigation expenses.

8.             As a sequel of above discussion, complaint allowed with directions to OPs to refund the received amount of Rs.15,80,000/- with interest @ 8% per annum with effect from the date of filing of complaint namely 07.09.2016 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, whose liability is held as joint and several. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order.  Certified copies be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

March 21, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                            (Amrinder Singh Sidhu)                                                                      Member

(Mrs. Natasha Chopra)

Member