Complainant Satinder Pal Singh through his power of attorney Sh.Ajit Singh filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that the opposite parties be directed to refund the Earnest money and amount of installment i.e. Rs.1,54,635/- to him alongwith interest @ 18%. Opposite parties be further directed to pay Rs.25,000/- as compensation for mental agony, harassment caused to him and Rs.25,000/- as litigation expenses, in the interest of justice.
2. The case of the complainant in brief is that he booked a Flat bearing No.C-312 GF with Phoenic Infrastracture Pvt.Ltd. in their project “Kelwin Floors” in Alpha International City Amritsar through opposite party no.3 for Rs.37,75,000/-. The opposite party no.3 personally visited his house after telephonic appointment for meeting on 2.03.2015 and took a cheque bearing No.110013 drawn on S.B.I. Gurdaspur in favor of “Phoenix Infra Pvt.Ltd” which was debited from the account of Sh.Ajit Singh, his father. The opposite party no.3 and another official of opposite party no.1 obtained signatures of his father on some papers in State Bank of India, Branch Tibri Road, Gurdaspur on 04.03.2015 and an amount of Rs.1,44,635/- had been debited from the Saving Bank Account No.11077399219 been maintained by his father NEFT System which was credited in favour of Phoenix Infra Pvt.Ltd. He further pleaded that the project “Kelwin Floors” was a sublet of opposite party no.2 entered into contract for development with opposite party no.1. The offers and promises were made by the opposite party no.1 on behalf of opposite party no.2 but due reasons best known to both of them, the project could not be started on the stipulated time. On hearing the news of project failure, he submitted an application with opposite party no.1 and surrendered his Flat booked in “Kelwin Floors” by cancellation of the same. After a few months the opposite party no.1 withdrew themselves from the project and they surrendered the offered plots/land to the opposite party no.2. He demanded his earnest money and installment amount back that is Rs.1,54,635/- from the opposite party no.1 but they did not return the same. In the month of June, 2016 he received a letter from opposite party no.2 whereby they informed him that they have terminated their contract with Phoenix Infra Pvt.Ltd and shall develop the floors themselves. The opposite party no.2 also invited him to visit the site and asked to make all future payments directly to opposite party no.2 if he want to continue with the project and want to retain the flat, if he remains stick to his decision of cancellation of booking of Flat/apartment, then he may contact opposite part5y no.1 for his refund. He did not accept the offer of opposite party no.2 ad remained stick with his decision for cancellation of Flt and requested the opposite party no.1 and 2 to refund his money, but no one has refunded his money so far. The act and conduct of the opposite parties no.1 and 2 is arbitrary, monopolistic, against the terms of booking agreement and against the law which amounts to clear cut deficiency of services on the part of the opposite parties no.1 to 3. Hence this complaint.
3. Upon notice, the opposite party no.4 appeared through its counsel and filed the written reply. It was submitted that an amount of Rs.1,44,635/- has been transferred through cheque from the account No.11077399219 on 04.03.2015. The complaint against the opposite party is without any merit and moreover the same is not maintainable and lastly prayed that the complaint may be dismissed with costs.
4. Notice issued to the opposite parties no.1 and 3 had been served. Case called several times but none had come present on their behalf. Therefore, they were proceeded against exparte vide order dated 20.9.2016.
5. Notice issued to the opposite party no.2 served through publication, but none had come present on behalf of it, therefore, it was proceeded against exparte vide order dated 27.2.2017.
6. Ajit Singh son of Sh.Nand Singh Special Power of Attorney holder of complainant tendered into evidence his own affidavit Ex.C1 alongwith other documents Ex.C2 to Ex.C9 and closed the evidence.
7. Counsel for the opposite parties tendered into evidence affidavit of Gurdeep Singh Branch Manager Ex.OP-1 alongwith other document Ex.OP-2 and closed the evidence.
8. We have intently perused and examined the pleadings/averments, documents/evidence as per the complainant and the OP4 SBI Bank along with the conduct of the OP1, OP2 and OP3 who somehow have preferred to suffer ex-parte proceedings to an otherwise orderly participation giving rise to the judicial presumption that they do not have any defence to plead before the forum; of course in the back-drop of arguments supported by the superior court judgments as put forth by the learned counsel for the complainant. We observe that the OP4 Bank has been placed on the array of defendants simply to prove payment transaction through it and execution of booking agreement for the Flat # C-312 at Gurdaspur and that in turn establishes the arising of a part of cause of action at Gurdaspur bestowing territorial jurisdiction to the forum at Gurdaspur.
9. However, we find that the complainant has presently sought Refund/Repayment of his deposited earnest money (along with cost, compensation and interest) as the one and the only relief at the face of delay, non-completion and alleged separation-in-business by the titled (first three) opposite parties. Incidentally, the receipt of the alleged deposit of earnest money has been neither disputed nor contested but its refund/repayment has been indirectly refused and none of the three opposite parties who have jointly & consentedly received the amount has been accepting its responsibility/liability of return etc.
10. We have carefully examined all the documents/evidence produced on record in the light of the incidental scope of adverse inference for of some of the evidentiary documents that have been somehow ignored to be produced along with the scope of adverse inference that may be discretionarily/judicially drawn on account of the intentional non-participation/ex-parte proceedings by all the titled opposite parties despite the proven service/publication of summons; of course, in the very back-drop of the judicious discretionary liberty to draw an adverse ‘judicial inference’ by virtue of a plethora of superior courts judgments that the ex-parte respondents have no defense to prosecute and thus they instead preferred to go ‘ex-parte’. The above legal proposition holds true since more than a century old legal history of Indian law and its collateral jurisprudence. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardees’ and/or to cast undue excessive ‘distresses’ to the delinquent parties.
11. We understand that the complainant has been in urgent need of funds for his own business etc but that does not entitle him to an out of the way Refund of the earnest money deposited for the purchase of the flat. However, he is entitled to the opted refund/repayment since the OPs could not deliver him possession of the flat, in time, may be due to reasons beyond their control and comprehension.
12. Thus, in the light of the all above, we partly allow the present complaint and thus ORDER the titled opposite parties # 01 to 03 to refund/repay the receipted amount sans any penalty/deduction etc to the complainant besides to pay him Rs.10,000/- as cost and compensation within a period of 30 days from the receipt of the copy of these orders otherwise the awarded amount shall attract interest @ 9% PA from the date of the deposit till actual repayment/refund etc.
13. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
February 16, 2018 Member.
*MK*
