DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.545 of 2016 Date of institution: 05.09.2016 Date of decision : 09.11.2017
Jagar Nath son of Prithvi Dass, A-96, Village Kambali, Post Office, Manauli, SAS Nagar (Mohali) 162500.
……..Complainant
Versus
1. M/s. Yellowstone Builders Private Limited, Site Office at Yellowstone Land Mark Infocity, Sector 66-A, SAS Nagar, Mohali Punjab through its Managing Director Tejinder Singh.
2. M/s. Sukhm Infrastructures Private Limited, Office at SCO No.123-124, 3rd Floor, Sector 17-C, Chandigarh through its Managing Director Tejinder Singh.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum
Shri Ajit Pal Singh Rajput, President
Mrs. Natasha Chopra, Member.
Present: Shri Vivek Mohan Sharma, cl. for the complainant.
OPs ex-parte
ORDER
By Ajit Pal Singh Rajput, President
Complainant Jagar Nath has filed the present complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant is employee of M/s. Philips India Limited and being member of the Employees Union, he booked a residential apartment with the OP by paying Rs.20,000/- alongwith booking application form. On the demand of the OPs, the complainant deposited cheque dated 28.04.2012 for Rs.1,55,000/- with the OPs vide receipt dated 01.05.2012. The OPs vide letter dated 25.07.2012 confirmed about the registration of one No’s 400 (EWS) at Yellowstone Residencies in the IT Integrated Township (Philips Tower) “Yellowstone Landmark Infocity” in Sector 66-A, SAS Nagar (Mohali) in the name of the complainant. Thereafter on further demand of the OPs, the complainant deposited a sum of Rs.87,500/- with the OPs vide cheque dated 14.03.2013 receipt whereof was issued by the OPs on 22.03.2013. As per the terms of buyer’s agreement dated 17.05.2012 entered into between the OPs and the Philips India Private Limited Employees Union, the OPs were under contractual obligation to complete the construction work within tentative period of 18 months from the date of agreement with extended tenure of 6 months. However, the OPs failed to start the construction work upto December 2014, and ultimately the complainant requested the OPs to refund the entire deposited amount of Rs.2,62,500/-. On this demand, Tejinder Singh as authorised signatory of OP No.1 issued cheque of Rs.1,00,000/- bearing No.000273 dated 04.04.2016 and assured the complainant that the OPs will compensate each and every applicant/member of the aforesaid Union. On this assurance the complainant accepted the cheque of Rs.1.00 lakh but the cheque when presented for encashment got dishonoured vide bank memo dated 02.07.2016. The complainant approached the OPs and requested to refund the entire deposited amount alongwith interest and the charges paid by him to the bank on account of dishonouring of the cheque. However, the OPs flatly refused to pay the same and told the complainant to file a complaint under Section 138 of Negotiable Instruments Act. The OPs with dishonest intention received hard earned money of the complainant with the pretext of selling residential apartment at very affordable rates which act of the OPs shows that they have indulged in unfair trade and committed deficiency in service. Hence, this complaint for giving directions to the OPs to refund Rs.2,62,500/- alongwith interest @ 18% per annum; to pay him the bank charges on account of dishonour of cheque of the OPs; to pay him Rs.1,00,000/- on account of harassment, humiliation, mental agony besides financial loss and Rs.22,000/- as costs of litigation.
3. Registered notice sent to the OPs by this Forum received back with the report of postal authorities that the OPs have refused to accept the notice. Thus, as per provisions of Section 28 A (3) of the Consumer Protection Act, the Ops were proceeded against ex-parte vide order dated 17.02.2017.
4. In order to prove the case, the complainant tendered in evidence his affidavit Ex.CW-1/1; copies of booking application Ex.C-1; receipt dated 02.05.2012 Ex.C-2; copy of letter dated 25.07.2012 Ex.C-3; receipt dated 22.03.2013 Ex.C-4; buyers agreement dated 17.05.2012 Ex.C-5; cheque Ex.C-6 and dishonouring memo Ex.C-7.
5. The learned counsel for the complainant has argued that the complainant booked residential apartment in the project of the OPs at Sector 66-A, SAS Nagar vide Ex.C-1 and paid Rs. 2,62,500/- vide receipts Ex.C-2 and C-4. Learned counsel has submitted that as the OPs as per condition No.6 (a) of buyers agreement Ex.C-5 the development of the apartment was likely to be completed within a tentative period of construction 18 months from the date of agreement with extended tenure of six months. However, as there was no development at the site the complainant sought refund of the amount and the OPs in discharge of their liability issued cheque of Rs.1.00 lakh to the complainant which too was dishonoured. Learned counsel has thus prayed for allowing the complaint.
6. After hearing the learned counsel for the complainant and going through the pleadings, evidence and the written as well as oral submissions, it is established that the complainant booked the residential apartment in the project of the OPs at Sector 66-A, SAS Nagar vide application form Ex.C-1 and the OPs vide letter dated 01.05.2012 Ex.C-2 confirmed booking of residential apartment in the name of complainant and also receipt of Rs.1,75,000/-. The basic sale price of the apartment is Rs.8,75,000/- and the complainant had opted for Construction Linked Plan. The complainant further paid Rs.87,500/- to the OPs vide receipt dated 22.03.2013 Ex.C-4. As per Clause 6 (a) of Buyers Agreement Ex.C-5 the development of the apartment was likely to be completed within a tentative period of construction 18 months from the date of agreement with extended tenure of six months. However, the OPs failed to start the construction and ultimately the complainant requested the OPs for refund of the amount. The OPs in discharge of their liability, issued cheque dated 04.04.2016 Ex.C-6 for Rs.1.00 lakh to the complainant and assured to make refund of the balance amount. However, the cheque Ex.C-6 when presented by the complainant for encashment was dishonoured vide memo Ex.C-7 due to insufficient funds. The OPs refused to accept the notice sent by this Forum. The whole purpose of pleadings is to give fair notice to each party of what the opponent’s case is and to ascertain with precision the point(s) on which the parties argue and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. As such, the evidence adduced by the complainant remains unrebutted. The OPs cannot withhold the amount deposited by the complainant and are liable to refund the same along with interest. The Hon’ble State Consumer Disputes Redressal Commission in Ms. Sneh Sood Vs. M/s. Bajwa Developers Ltd. in Consumer Complaint No.240 of 2016 decided on 23.02.2017 has ordered refund of the deposited amount of the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund.
7. Accordingly, in view of our aforesaid discussion, we direct the OPs to refund the deposited amount of Rs.2,62,500/- (Rs. Two Lakhs Sixty Two Thousand Five Hundred only) to the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund. We also find that complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony due to the negligent act of the OPs and litigation cost of Rs.10,000/- (Rs. Ten thousand only). The present complaint stands allowed accordingly.
The OPs are further directed to comply with the order of this Forum within 30 days from the date of receipt of this order, failing which the amount of compensation awarded shall carry interest at the rate of 12% per annum from the date of this order till realisation.
The arguments on the complaint were heard and the order was reserved. Now the order be communicated to the parties. The complaints could not be decided within the stipulated timeframe, due to heavy pendency of cases. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 09.11.2017
(A.P.S.Rajput)
President
(Mrs. Natasha Chopra)
Member
