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

                                  Consumer Complaint No.  73 of 2015

                                 Date of institution:          20.02.2015

                                                   Date of Decision:            18.09.2015

1.    Khushwinder Kaur d/o Harvinder Singh and w/o Jagmeet Singh Bedi.

2.    Jagmeet Singh Bedi son of Rupinder Singh Bedi,

       Residents of H.No.2814, Sector 37-C, Chandigarh.

                                     ……..Complainants              Versus

1.     RKM Housing Ltd., SCO No.1-2-3-4, behind Chandigarh Engineering College, Sector 112, Landran, SAS Nagar, Mohali through its Managing Director/Chairman.

2.     Sherwood Officer’s Society (Registered), Sherwood Estate, Opposite Gate CP-3, Ghanupur Kale Via Chheharta Byepass, Amritsar 143105 through its Chairman/Managing Director.

                                                                ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Mrs. R.K. Aulakh, Member.

Present:    Shri Parminder Singh, counsel for the complainants.

Shri Manpreet Singh, counsel for OP No.1.

Shri Ashok Verma, counsel for OP No.2.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainants have filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

(a)    refund them Rs.7,96,000/- alongwith interest @ 10% from dates of deposit i.e. 25.11.2011 and 14.12.2011 till payment.

(b)    pay them compensation of Rs.1,00,000/- for mental agony and  harassment.

(c)    pay them Rs.35,000/- as litigation expenses.

                The case of the complainants is that OP No.1 is a developer/colonizer and taken over the project in Sherwood Estate Sector 113, Mohali from OP No.2 who handed over the project to OP No.1 in 2014. The complainants agreed to became members of Sherwood Estate at Sector 113, Mohali the project of OP No.2. At that time the OP No.2 informed the complainants that all necessary clearances like CLU etc. were already there and the project is ready to go and would be completed in a year or so.  Vide application form  dated 12.11.2011 Ex.C-1 the complainants applied for 200 sq. yard plot by paying Rs.21,000/- as booking amount. After that in lieu of the payment schedule issued by OP No.2, the complainant paid further sum of Rs.7.75 lacs vide receipt dated 14.12.2011. The total cost of the 200 sq. yard plot @ Rs.15,500/- per sq. yard was settled at Rs.31.00 lacs. Allotment letter was issued by OP No.2 on 26.12.2011. OP No.2 vide letter dated 07.12.2012 demanded from the complainant the next installment as it has been given CLU on 03.02.2012 failing which the booking would be cancelled or penal interest would be levied. However, at the time of booking the complainants were informed by the OP No.2 that all clearances were already taken by it. The complainants vide letter dated 24.12.2012 informed to the OP No.2 that they were not in a position to make payment on their own and require loan from the bank/financer.  The complainants visited Bank of Maharashtra and they were informed that OP No.2 has only got application license number and it has not been given even CLU certificate nor the project is cleared by Govt. (GMADA) so the loan cannot be passed.  The complainants requested the OPs not to cancel their booking and impose penal interest and help them to get back loan for making payment, otherwise return the amount with interest. Thereafter, the complainants have not heard anything from OP No.2. On 15.03.2014 OP No.2 after 1½ years asked the complainants to deposit CLU share to the tune of Rs.3.00 lacs.  The complainants vide letter dated 27.03.2014 asked the complainants that more than 2 years had gone since the initial booking and because of this delay they are no longer interested in the project and sought refund of the amount of Rs.7,96,000/- alongwith 10% interest within 15 days.  After about 4 months OP No.2 vide letter dated 18.07.2014 informed the complainants that due to some internal matter, the project in question is being handed over to OP No.1 and completion of the project will now take another 20 months from MOU dated 29.06.2014.  The complainants vide letter dated 25.11.2014 requested OP No.1 that as per their earlier request to OP No.2, their amount of Rs.7,96,000/- be refunded to them alongwith interest @ 10% to which OP No.1 refused. Rather the complainants received a letter dated 21.01.2015 from OP No.1 vide which the pending amount against the complainants was demanded and sought 20 months more  for getting the project completed. The complainants had been demanding the refund of the amount from the OPs since 27.03.2014 and 24.12.2012 but till date they have not refunded a single penny. Thus with these allegations the complainants have filed the present complaint against the OPs.

2.             Upon notice the OPs appeared and filed separate written statements. OP No.1 in its reply has pleaded that OP No.2 never informed the complainants that CLU and other necessary permissions have already been taken by the company. Rather the complainants were informed that CLU and other permissions have been applied and will be obtained in near future.  The OP No.2 is a society and complainants became its members and wanted to get allotment of a plot measuring 200 sq. yards with the view that they would sell the same at a higher price to earn profit. As there is a slump in the real estate market and down trend in the prices of the plots and due to that the complainants wants to blame OP No.2.   Thus, denying any deficiency in service on its part, OP No.1 has sought dismissal of the complaint.

3.             OP No.2 in is written statement has pleaded that the complainants became members of the Sherwood Estate at Sector 113, Mohali. They have not made payments on due date to the OP No.2 as per schedule due to this it could not obtain CLU.  It has already obtained letter of intent of CLU to deposit required fee from GMADA. Due to wrongful acts of the members, the society went in loss and earlier the legal fee for obtaining CLU was Rs.1,29,00,000/- but now the same has been increased to Rs.2,40,00,000/-.  The complainants have paid Rs.7,75,000/- as  booking amount and have not paid the next amount of Rs.11,62,500/- due on 25.02.2012. It has never informed the complainants that CLU and other necessary permissions have already been taken by the company. Thus, denying any deficiency in service on its part, OP No.2 has sought dismissal of the complaint.

4.             To succeed in the complaint, the complainants tendered in evidence their affidavits Ex.CW-1/1and Ex.CW-2/1 and copies of documents Ex.C-1 to C-16.

5.             Evidence of OP No.1 consists of affidavit of Kamaljit Singh Ahluwalia, its MD Ex.OP-1/1 and copies of documents Ex.OP-1/1 to Ex.OP-1/10.

6.             Evidence of OP No.2 consists of affidavit Virinder Singh its legal representative Ex.OP-2/1 and copies of documents Ex.OP-2/2 to Ex.OP-2/3.

7.             We have heard learned counsel for the parties and have also gone through written arguments filed by them.

8.             Admittedly the complainants are members of OP No.2 Society vide application form dated 12.11.2011 Ex.C-1 for allotment of 200 sq. Yards in the proposed Sherwood Estate, Sector 113, Mohali. The complainants had paid Rs.21,000/- as membership fee. Thereafter, the complainants were allotted 200 sq. yard plot vide Ex. C-4 dated 26.12.2011 alongwith payment schedule Ex.C-2 wherein the price of the plot has been shown @ Rs.15,500/- per sq. yard, total Rs.31.00 lacs and date of booking as 25.11.2011, amount paid at the time of booking Rs.7,75,000/-, amount to be paid by 25.02.2012 Rs.11,62,500/-, amount to be paid by 25.06.2012 Rs.11,62,500/-; amount to be paid within 12 months from the date of booking, EDC, IDC will be charged as per actual expenses. As per the allotment letter Clause-3, the delay in making payment will attract 15% penal interest per annum and sustained default will lead to cancellation of allotment. As per Clause-9 of the allotment letter, the possession was to be handed over to the allottee within a period of one and a half year from the date of grant of CLU after all the dues have been cleared by the allottee. As per the complainants, they have paid the membership fee and first installment worth Rs.7,75,000/- and the same has been admitted by the OP No.2. For making rest of the payment, the complainants require bank support and, therefore, wanted to arrange loan from the bank. The OP No.2 was asked to provide all necessary sanctions/approvals in its favour to enable the complainants to get loan from the bank. Upon receiving a demand notice dated 07.12.2012 Ex.C-5 wherein the OP No.2 has claimed to eceived the CLU, raised the demand of payment of next installment from the complainants. The complainants in order to verify regarding the grant of CLU in favour of OP No.2 approached the office of GMADA Mohali and found that the society still has not applied for the license which is mandatory and only on the basis of such license the banks extend the loans for that project. Therefore, disbelieving the commitment made by the OP No.2, the complainants sought to withdraw from the membership and requested OP No.2 to refund the entire amount with due interest as per request letter dated 24.12.2012 sent to OP No.2 by registered post as is evident from Ex.C-6.  Without considering the request of the complainants, OP No.2 again issued a demand notice of Rs.3.00 lacs to the complainants vide Ex.C-7 dated 15.03.2014. In response to the said demand notice, the complainants again reiterated their request to refund the entire amount alongwith interest @ 10% per annum within 15 days vide request letter dated 27.03.2014 Ex.C-8. Still the request of the complainants was not considered by the OP No.2 and without the consent of the complainants, being the members of the society, OP No.2 has decided to handover the affairs and management of society to one R.K.M. Housing i.e. OP No.1 on as is where is basis and signed a MOU with OP No.1 and informed about the said change of guards of the society to the complainants vide letter dated 18.07.2014 Ex.C-9. As per Ex.C-9 the management of the society was now handed over to OP No.1 with all assets and liabilities of the society. The complainants did not approve the act of OP No.2 of handing over the affairs of society to OP No.1 and, therefore, made a direct correspondence with OP No.1 vide letter dated 25.11.2014 Ex.C-10 and requested to refund the deposited amount. OP No.1 thereafter responded to the complainant vide Ex.C-11 dated 21.01.2015 wherein no reference is made regarding request of refund of the complainants, rather OP No.1 has admitted that the CLU has not been granted in their favour and it will take another 20 months to develop the project and handover the plot to the complainants. The complainants, as is evident from various exchange of letters between the complainants and the OPs have lost faith in the promises made by both the OPs and reiterated their request which has not been considered by the OPs and not answered or responded to.

9.             OP No.2 in its reply has admitted the booking of the 200 sq. yard plot by the complainants and receipt of Rs.7,75,000/- from the complainants as on 26.12.2011 being the first installment. Thereafter has further admitted the issuance of letter of intent and CLU by GMADA and further admitted not issuance of license due to non deposit Rs.2,40,00,000/- with the GMADA authorities leading to delay in the project. OP No.2 has further admitted having handed over the affairs of the society to OP No.1 with the consent of majority of members of the society. Therefore, OP No.2 has denied any deficiency in service and rather taken a stand that as per MOU dated 15.07.2014 signed between OP No.1 and 2, OP No.1 is to hand over possession to the members of the society within 20 months from the date of signing of MOU.

10.           As per OP No.1 in its reply the CLU was already granted in favour of OP No.2 but the same could not be converted into the license because of non payment of CLU charges. Now OP No.1 will get the CLU extension by depositing the fee for which it has asked the complainants to make the payment and there is no provision of refund. The complainants have not made the payment of demanded amount and, therefore, there is no deficiency in service on its part.

11.           The limited question in the whole controversy in the present complaint is whether the complainants are entitled to seek refund of the deposited amount from OPs particularly when the CLU and other permissions were not granted in favour of OP No.2 at the time of accepting the said deposit and further change of guards of affairs of society OP No.2 in favour of OP No.1 without the consent of the complainants.

12.           Admittedly at the time of accepting deposit of Rs.7,75,000/- as first installment on 26.12.2011, OP No.2 was not having necessary permissions and CLU in its favour as is evident from OP No.2’s own  admission vide Ex.C-5 wherein the date of CLU approval has been mentioned as 03.02.2012. Further the consent of the complainants regarding change of guards of OP No.2 in favour of OP No.1 has not been obtained by OP No.2 as it has failed to show the consent of the complainants in this regard. As per para 10 of the written submissions of OP No.2, it has admitted having received the consent of majority of members of the society for handing over of the project to OP No.1. Even the consent of majority members has not been placed on record to show bonafide act of OP No.2. Thus, on both the accounts OP No.2 has failed to come up to the promised expectations of the complainants and has thus indulged into an act of unfair trade practice and deficiency in service.

13.           Since OP No.1 has not denied the MOU dated 15.07.2014 wherein OP No.1 has taken over the project of OP No.2 on as is where is basis and also undertaken all the liabilities of OP No.2 to be cleared by OP No.1. Therefore, OP No.1 cannot wriggle out of its liability of refund of the demanded amount by the complainants as OP No.1 is well aware about request of the complainants made vide Ex.C-10. Further in order to show no development at the site, the complainants have relied on the photographs Ex.C-12 (colly)  duly supported by their affidavit, showing the only board and office of OP No.1 and no other development in the project which show that the OP No.1 has not developed the project and the promise of handing over the plot within 20 months from the date of MOU is only a paper exercise and not executed on the ground and thus OP No.1 has also proved to deficient in rendering the proper and effective services to the complainants and has indulged into unfair trade practice. Under the facts and circumstances of this case, we hereby are of the opinion that the complainants have proved their case of deficiency in service and unfair trade practice on the part of both the OPs for withholding their deposited amount since 26.12.2011 without having proper sanctions and approvals in their favour and not developed the project as per promise. Thus, the complaint deserves to be allowed and the complainants deserve to be compensated.

14.           In view of above discussion, the complaint is allowed. Both the OPs jointly and severally are liable as under:

(a)    to refund to the complainants their deposited amount of Rs.7,96,000/- (Rs.21,000 towards membership fee and Rs.7,75,000/- towards first installment), with interest thereon @ 12% per annum from the dates of deposit till actual payment.

(b)    to pay to the complainants a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

September 18, 2015.    

                                (Mrs. Madhu P. Singh)

                                                                        President

(Mrs. R.K. Aulakh)

     Member