Punjab

Ludhiana

CC/15/440

Prem Lal - Complainant(s)

Versus

Nature Heights Infra Limited - Opp.Party(s)

V.K.Gupta Adv.

18 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 440 of 21.07.2015

Date of Decision            :   18.11.2016

 

Prem Lal son of Sh.Piara Lal resident of 70-A, Akash Nagar, Near Holydale Public School, Jalandhar Bye-Pass, Ludhiana.

 

….. Complainant

                                                         Versus

1.Nature Heights Infra Limited Head Office: 9, Sunder Nagar, Opp.Children Park, Hanumangarh Road, Abohar-152116 (Punjab), through its Chief Managing Director Sh.Neeraj Thathai.

2.Nature Heights Infra Limited having its branch office at 237, Industrial Area-A, Opposite Post Office, Vijay Nagar, Cheema Chowk, Ludhiana, through its Branch Manager.

 

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.V.K.Gupta, Advocate

For OPs                         :        Ex-parte

 

PER G.K.DHIR, PRESIDENT

 

1.           Complainant allured by impressive advertisement of Ops, deposited cash amount of Rs.1,20,000/- on 3.10.2011 in the office of OP2 and thereafter, paid Rs.4,87,500/- through cheque bearing No.032528 drawn on Central Bank of India, Goraya Branch for booking of one flat on third floor measuring 1530 sq.feet. Again complainant paid Rs.6,07,500/- vide cheque No.032531 drawn on Central Bank of India, Goraya Branch, District Jalandhar. These amounts/cheques were deposited by visiting the office of OP2 at Ludhiana. Possession of plat was to be handed          over after completion in 24 months as per the terms of agreement. Further, the said terms provided that in case, OPs failed to handover the possession, then they will pay rent of Rs.12,500/- per month till the date of delivery of possession. Total price of the flat was fixed at Rs.40,50,000/- and agreement dated 29.3.2012 was executed. So, virtually possession was agreed to be handover upto 28.3.2014. However, construction of the flats nowhere is near completion till the filing of compliant. Photographs of the present position of the building snapped on 12.7.2015          shows that Ops not in a position to abide by the terms and conditions of the agreement and as such, by claiming that Ops are rendering deficient services, they are liable to refund the received amount with interest @18% per annum till the realization. Compensation of Rs.1 lac for mental torture and harassment even claimed. On repeated contacts by the complainant to officials of Ops namely Mr.Harpreet, Mr.Ravneet, Mr.Momin and Mr.Mukesh Mangal as well as Chief Managing Director Sh.Neeraj Thathai, assurance was received by the complainant from them for cancelling the agreement and to refund the amount, but despite all this, the same has not been refunded.

2.                Written statement was filed by Ops jointly by claiming that complaint is not maintainable; complainant has no cause of action because there is no deficiency in service on the part of Ops; complaint barred by limitation and this Forum has no territorial jurisdiction to entertain the complaint because all dispute are subject to territorial jurisdiction of Forum/Court at Abohar. Dispute regarding clauses of the agreement relied upon by the complainant is not raised. Rather as per one of these clauses, the purchaser would be at liberty to pay such sum in easy installments, but as per payment chart. Total price to be paid was fixed at Rs.40,05,000/-, out of which, Rs.20,000/- to be paid as booking amount. However, Rs.1 lac was to be paid at the time of winning the draw and the remaining amount was to be paid by the complainant in 9 quarterly installments of 15% or 10% of total agreed amount. However, after paying the initial amount of Rs.1,20,000/- on 3.10.2011, the complainant paid Rs.4,87,500/- on 22.11.201, but Rs.6,07,500/- more on 3.4.2012. Despite these unscheduled payments, complainant has not paid any other amount in 24 months for rendering him eligible for execution of the sale deed. Further, as per payment schedule, complainant has rendered himself disabled for lodging the claim against the company. There was no mis-representation made by the Ops and nor Ops rendered any deficient services and as such, by refutting the other allegations of the complaint, prayer made for dismissal of the complaint.

3.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C17 and even tendered additional affidavit Ex.CB of Sh.Shiv Kumar Arora and then closed the evidence.

4.                None appeared for Ops on the subsequent   adjourned dates and as  such, Ops were proceeded against ex-parte.

5.                Written arguments not submitted by the complainant or his counsel, so oral arguments heard and records gone through carefully.

6.                After going through affidavits Ex.CA and Ex.CB as well as copy of agreement of sale Ex.C2, it is made out that the complainant agreed to purchase the flat in question on payment of easy installments as per payment chart attached with the agreement. As per that payment chart, Rs.20,000/- as primary payment for booking, but Rs.1 lac is payable on winning of draw, whereas, remaining 24 installments payable @15% or @10%. Period of payment of these 15% and 10% of two installments each not disclosed in the chart or in the agreement and as such, submissions advanced by counsel for the complainant has force that amount was payable in easy installments. Further, as per agreement Ex.C2, possession of property was to be delivered after completion of 24 months and if not done, then Ops to pay a rent of Rs.12,500/- per month with rate of interest @2% per annum till the date of possession. That period of 24 months expired on 28.3.2014, but despite that Ops are not in a position to deliver the possession as revealed by contents of affidavits Ex.CA and Ex.CB as well as photographs Ex.C8 to Ex.C10 because the flats still are under construction as on 12.7.2015, the date legible on photographs.

7.                As delivery of possession of flat due to non completion thereof not possible and as such, certainly the complainant has no other alternate except to seek refund of the deposited amount from Ops. It is on account of this that request for refund submitted through SMS, copies of which produced on record as Ex.C12 and Ex.C13. However demand notice Ex.C14 was sent by the Ops to the complainant through counsel on 5.6.2015 for calling upon him to pay the balance installments within 15 days from the date of reminder, failing which, complainant will be liable to pay interest @20% compounded half yearly with grace period of one month from the date of first letter/notice. Such a clause of charging of penal interest is not incorporated in agreement of sale Ex.C2 and as such, this demand put forth in violation of the terms and conditions of the agreement of sale Ex.C2. Only clause contained in agreement of sale Ex.C2 is that in case, purchaser(complainant) failed to perform his part of contract, then the entire earnest money paid to the Vendor(Ops)to stand forfeited and no claim for refund entertain able in court of law. So, putting forth of this demand of charging penal interest through notice Ex.C4 itself reflect that Ops violating the terms and conditions of the agreement of sale Ex.C2. Demand of forfeiture of the earnest money could have been put forth only. However, if after completion  of 24 months, Ops would have not been in a position to put the complainant in possession, then complainant can sue OPs. Now Ops are not in a position put complainant in possession and as such, failure to honour the commitment remained on the part of Ops, due to which, they are liable to refund the admitted received amount of Rs.12,15,000/- through receipts Ex.C3 to Ex.C5 with interest. In holding this view, we are fortified by law laid down in case Arun Mahadev Naik vs. Smt. Shashi Nandkishore Julka and another-I(2003)CPJ-22(N.C.). However, on banking transaction interest now a day charged @8% per annum and as such, complainant entitled for refund of paid amount of Rs.12,15,000/- with interest @8% per annum from the date of complaint namely 21.7.2015 till payment because complainant even did not bother to send reply in response to demand notice Ex.C14 of date 5.6.2015, which was collected by him on 23.6.2015.

8.                Even if there is arbitration clause in agreement, despite that Consumer Fora has jurisdiction to entertain this complaint in respect of transaction to purchase of plot because law laid down in case of M/s Puma Realtors Pvt. Ltd. vs. Union of India and others-2016(1)RCR(Civil)-307(Hon’ble Punjab & Haryana High Court) provides that a party aggrieved due to violation of the terms and conditions of the agreement of purchase of a plot, can approach the Consumer Forum despite arbitration clause in the agreement.

9.                Question of complainant and Ops being unequal does not arise because such question cannot be seen by this Forum in on account of fact that this Fora summary proceedings neither can add nor can subtract to any of the terms and conditions of the contract agreement. As complainant stood mentally harassed due to non delivery of the possession by stipulated date and as such, after payment of huge amount of Rs.12,15,000/-, he was bound to remain under much stress and strain, so compensation for mental harassment of Rs.50,000/- at least should be allowed.

10.              As a sequel of the above discussion, complaint allowed in terms that Ops will refund amount of Rs.12,15,000/- (Rupees Twelve Lac Fifteen Thousand only) with interest @8% per annum from the date of complaint namely 21.07.2015 till payment. Compensation for mental harassment of Rs.50,000/- (Rupees Fifty Thousand only) and litigation expenses of Rs.5,000/- (Rupees Five Thousand only) more allowed in favour of complainant and against Ops. Payment of these amounts be made within 60 days from the date of receipt of copy of this order. Copies of order be supplied to parties free of costs as per rules

11.              File be indexed and consigned to record room.

 

                   (Vinod Bala)                                       (G.K. Dhir)

                                      Member                                                President

Announced in Open Forum                                                          Dated:18.11.2016

Gurpreet Sharma.