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

                                  Consumer Complaint No.100 of 2015

                                 Date of institution:            04.03.2015

                                                     Date of Decision:            24.09.2015      

Halinder Singh son of Bachan Singh resident of House No.1364, Guru Teg Bahadur Housing Complex, Sector 70, SAS Nagar, Mohali.

    ……..Complainant

                                        Versus

Sahara City Homes Marketing and Sales Corporation, Command Office, Sahara India Bhawan, 1, Kapurthala Complex, Lucknow 226924, Branch Officer Sahara India Parivar, SCF No.40/41, Phase-5, Mohali.

………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member.

Mrs. R.K. Aulakh, Member.

Present:     Shri J.S. Tiwana, counsel for the complainant.

Shri Ammish Goel, counsel for the OP.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:

(a)    refund him the deposited amount of Rs.2,57,250/- with interest @ 18% per annum from the date of deposit till realisation.

(b)    pay him Rs.2.00 lacs for publishing misleading commitments in the brochure regarding date of possession of the unit.

(c)    pay him Rs.35,000/- as costs of litigation.

                The case of the complainant is that the OP launched a scheme of flats by the name ‘Sahara City Homes’ to be developed in 217 cities of India.  Attracted by the promises and projections in the brochure (Ex.C-1) and advertisements issued by the OP, the complainant booked a flat with the OP by paying Rs.85,750/-  through demand draft on 20.12.2004 which was acknowledged by the OP vide receipt. The flat was consisting of 2 bed rooms Type-B having area of 86.15 sq. mts.  The complainant paid further amount of Rs.1,71,500/- to the OP on 01.12.2005 through bank draft. The OP issued receipt Ex.C-5 to the complainant mentioning the place/unit to be allotted to the complainant at Chandigarh.  The complainant paid a total sum of Rs.2,57,250/- to the OP. The OP had communicated that first phase of process of offer of possession will start in December, 2007 and in mid of 2009 all the cities falling within Phase-1 would become duly operation. Chandigarh is included as one of the city in the list of firs phase issued by the OP. The complainant visited the OP after mid of 2009 numerous times for possession of the flat but the OP told that the project being a large size cannot be completed in time and it will take further two years to be completed.  The complainant then visited the OP, after waiting for two years, in December, 2011  and found that the OP had done nothing on the land purchased by it for the purpose of construction of houses.  In August 2012 the complainant came to know that the OP had abandoned the project and the OP is in process of refunding the amount.  Despite personal requests the OP had not refunded the deposited amount to the complainant.  Thus, on these allegations the complainant has filed the present complaint. 

2.             Upon admission of the complaint, notice was issued to the OP who appeared and filed reply. The OP has taken preliminary objections that the complainant is not consumer as defined under the Consumer Protection Act.  The complaint is barred by limitation as vide letter dated 09.05.2011 the complainant was informed regarding the status of the project and if the complainant wish to cancel the booking the OP was ready to refund the advanced amount with simple interest @ 8% per annum as per terms and conditions of the booking form but the complainant denied taking the same. The present complaint has been filed in March, 2015 after 2.5 years of receipt of letter dated 09.05.2011. The project could not be completed due to pendency of litigation in the Hon’ble Punjab and Haryana High Court. The OP had already acquired over 200 acres of land for the project and CLU has also been procured for 147 acres of land vide order dated 27.09.2005 and LOI was issued on 16.11.2006. In the LOI the competent authority instead of Rs.2.5 lac per acre raised the demand of Rs.15.9 lacs per acre towards External Development Charges which the OP challenged in the Hon’ble High Court vide CWP No.460/2007 and the same  was disposed off by the Hon’ble High Court vide order dated 10.09.2008. However, the litigation is pending and as soon as the same is finally decided the transfer of flats and fresh subscription  can be considered on the price/rate which will be fixed at the time of launching. The OP was always ready to refund the provisional subscription amount as per terms and conditions but the complainant has denied for taking the same. The OP is still ready to refund the same alongwith simple interest @ 8% per annum thereon.  The present complaint is also not maintainable in view of terms of Clause 20 of Terms and Conditions of booking which stipulates that all the disputes were subject to Arbitration. The complaint is premature as no allotment of unit was made in favour of the complainant. The relief claimed by the complainant is beyond the judicature of this Forum.

                On merits, the OP has pleaded that the development of the project is subject to force majeure clauses which include delay in project due to any reasons beyond the control of the OP. As per Clause 18 of terms and conditions, the OP was entitled for a reasonable corresponding extension of time of delivery of possession on account of force majeure circumstance. The complainant never met with the OP. The letter dated 09.05.2011 was issued to all the customers who had applied under the said project in which they were requested to take their refund of subscription amount alongwith 8% interest as per terms and conditions of provisional booking form.  Thus, denying any deficiency in service and unfair trade practice on its part, the OP has sought dismissal of the complaint.

3.             Evidence of the complainant consists of his affidavit Ex.CW1/1 and copies of documents Ex C-1 to C-6.

4.             Evidence of the OP consists of affidavit of Naveen Sharma, its authorised person Ex.OP-1/1 and copy of letter dated 09.05.2011 Ex.OP-1.

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

6.             The booking of the flat by the complainant in the cities falling within phase-1 of the scheme floated by the OP in the year 2009 is not disputed. Payment of Rs.2,57,250/- by the complainant to the OPs as part payment of the sale consideration of the flat is not disputed. The OP itself has admitted that the project could not see the light and, therefore, it is in the process of refunding the deposited amount of the prospective flat buyers. Despite giving the assurance of refund of the amount, till date the OP has not refunded the amount. Therefore, the complainant has alleged deficiency in service and unfair trade practice of trapping the prospective buyers to believe that the construction would be completed and possession would be delivered very soon.

7.             The OP in its written statement has admitted its obligation to refund the deposited amount of Rs.2,57,250/- to the complaint alongwith simple rate of interest @ 8% per annum as per the terms and conditions of the booking form.  The disputed issue is whether the complainant is entitled to refund of deposited amount alongwith interest as per terms and conditions, as admitted by the OP in its written statement.

8.             It will be appropriate to go through the terms and conditions of the allotment letter.  The perusal of Ex.C-3 dated 17.12.2004 and its overleaf containing the terms and conditions governing the relationship between the parties shows that there is no stipulated agreed rate of interest @ 8% on the refund of the deposited amount.  Therefore, the offer of the OP to refund the deposited amount alongwith simple 8% interest per annum from the date of deposit is actually against the terms and conditions as mentioned on the overleaf Ex.C-3. It is well settled proposition of law that the money cannot remain idle and in the normal course of business any money when deposited with the bank earns simple or fixed rate of interest as per the prevalent rates of interest. No doubt the amount deposited by the complainant still remains with the OP and till date it has not refunded the amount.

9.             Therefore, as per the orders passed by the Hon’ble Punjab state Consumer Disputes Redressal Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others, 2014(2) CLT 401 wherein by relying upon the judgment of Hon’ble National Commission in case titled as Sunit Enterprises & Anr. Vs. Mohanlal N. Jogi and Anr. 2013(1) CLT 309 has held that if the money is refunded within 5 years then interest @ 12 to 15% per annum should be sufficient and if after that then the interest @ 18% per annum has to be awarded. In the present complaint admittedly the amount in question is lying with the OP since December, 2004 and till date it has not been refunded by the OP. Therefore, applying the ratio of the order of the Hon’ble State Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others (supra) the complainant is entitled to refund of the amount with interest @ 18% per annum.

8.             In view of the above discussion, the complaint is allowed with the following directions to the OP to:

(a)    refund to the complainant her deposited amount of Rs.2,57,250/- (Rs. Two lacs fifty seven thousand two hundred fifty only) with interest thereon @ 18% per annum from the dates of deposits till actual refund.

(b)    to pay a lump sum of Rs.35,000/- (Rs. Thirty five thousand only) for mental agony, harassment and costs of litigation.

                The OP is directed to comply with these directions within a period of thirty days from the date of receipt of a certified copy of this order.  Certified copies of orders be sent to the parties free of costs and thereafter the file be consigned to the record room.

Pronounced.                           

September 24, 2015.    

                        (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

Member