DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:545 of 2010] Date of Institution : 27.08.2010 Date of Decision : 16.01.2012 ----------------------------------------------- Dr. Fatehbir Singh son of Sh. Kartar Singh resident of House No.5, Khalsa College Avenue, Post Office Khalsa College, Amritsar. ---Complainant. V E R S U S M/s. Shalimar Estates (P) Ltd., Corp. Office: SCO No.110-111, Sector 8, Chandigarh-160008 through its Managing Director. ---Opposite Party. BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT SMT. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. S. K. Mahajan,Advocate for the complainant. Sh. Arun Kumar, Advocate for the OP. PER LAKSHMAN SHARMA, PRESIDENT 1. Dr. Fatehbir Singh has filed this complaint under Section 12 of the Consumer Protection Act, 1986 praying therein that the opposite party be directed to :- i) Refund an amount of Rs.1,69,566/- paid to the opposite party along with interest @15% per annum from the date of respective deposits; ii) pay a sum of Rs.5,00,000/- as compensation for mental pain and agony; iii) pay a sum of Rs.10,000/- as litigation expenses. iv) award any other relief, which the Forum deems fit. 2. The case of complainant is that in response to an advertisement made by the opposite party, he applied for allotment of a plot measuring 150 Sq. Yards i.e.6 Marlas in Phase-I of Shalimar Estates. The said application was accepted by the opposite party and it allotted Plot No.298 measuring 150 Sq. Yards i.e.6 Marlas in Phase-I at the proposed Shalimar Estates in Village Naggal Alipur Naggal, Hadbast No.237 and 238. An agreement (Annexure C-1) was executed between the parties on 18.4.2002 regarding the sale of the said plot. As per the terms of the said agreement, opposite party agreed to sell the above said plot to the complainant for a sum of Rs.1,21,500/-. A sum of Rs.30,375/- was paid as earnest money at the time of execution of the agreement whereas the remaining amount of Rs.91,125/- was to be paid in six installments of Rs.15,187/- each along with interest as per the details given in Para No.3 of the agreement. According to the complainant, he paid the said installments regularly and thereby paid a sum of Rs.1,42,988/- (copies of receipts are Annexures C-2 to C-8 respectively). The complainant has alleged that he paid the total amount of Rs.1,69,566/- to the opposite party against the sale price of the plot in question. As per the agreement, the last date fixed for registration was 19.1.2008 and the possession of the plot was to be given within five years of the date of allotment. It has further been pleaded by the complainant that despite the fact that he has already paid the entire sale consideration of the said plot and the period of more than five years has expired from the date of allotment, neither the opposite party has executed the Sale Deed in favour of the complainant nor the possession of the said plot has been handed over to him. The opposite party was approached many times for seeking possession, and transfer of the plot in his favour but to no effect. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. In the written statement filed by opposite party, the facts regarding execution of the agreement for the sale of Plot No.298 measuring 150 Sq. yards i.e.6 Marlas in Phase-I at the proposed Shalimar Estates at Village Naggal-Alipur, Hadbast No.237 and 238 for Rs.1,21,500/- has been admitted. It has also been admitted that the complainant has already paid a sum of Rs.1,69,566/- . According to the OP, the Government of Haryana has wrongly lodged criminal proceedings against the opposite party for developing Shalimar Estates. The OP has challenged the said act of the Government by way of Civil Writ Petition No.2437 of 2003 in case titled ‘Shalimar Estates Pvt. Ltd. Vs. State of Haryana and others’. On 13.2.2003, a Division Bench consisting Hon’ble Mr. Justice J. S. Khehar and Hon’ble Mr. Justice Satish Kumar Mittal stayed the demolition and dispossession. Later on, the said writ petition was admitted for hearing and it was ordered that the stay shall continue. According to the opposite party, the matter is still subjudice and the writ petition has not been decided so far. In these circumstances, according to the opposite party, the possession could not be delivered in time. Thus, according to the opposite party, non delivery of possession is for the reasons beyond its control. In these circumstances, according to the opposite party, there is no deficiency in service on its part and the complaint deserves dismissal. 4. We have heard the learned counsel for the parties and have perused the record. 5. It is the admitted case of the parties that the OP had agreed to sell Plot No.298 measuring 150 Sq. Yards i.e. 6 Marlas in Phase-I at the proposed Shalimar Estates at Village Alipur Naggal, Hadbast No.237 and 238 for a consideration of Rs.1,21,500/- and the complainant has already paid the sale consideration of the plot. It is also admitted case of the parties that as per the terms and conditions of the agreement, the possession was to be delivered within five years from the date of allotment and the possession has not been delivered so far and even the internal development work has also not been completed. 6. The case of the OP is that the Government of Haryana has lodged criminal proceedings against the OP for developing the said Shalimar Estate and the OP has challenged the said action of the Government of Haryana by filing Civil Writ Petition No.2437 of 2003 in case titled ‘Shalimar Estates Pvt. Ltd. Vs. State of Haryana and others’. In view of the fact that the stay has been granted in favour of OP in the said writ petition, the argument advanced by the learned counsel for the OP that because of pendency of the writ petition, the area could not be developed, has no force. 7. The complainant has placed on record a copy of affidavit dated 16.9.2008, which he gave to the opposite party in advance. The complainant has deposed in this affidavit that he has surrendered all his rights in the said plot to the opposite party with his own will without any undue pressure and received refund of full and final amount paid by him to the opposite party for the plot allotted to him. He further deposed that he has no objection if the said plot is allotted to some other person at any stage. Though, the complainant has deposed all this in his affidavit dated 16.9.2008 yet he has not received a single penny out of the amount paid by him to the opposite party for the plot in question. This fact has also been admitted by the opposite party in their written statement. Even the receipt printed on the back of the affidavit dated 16.9.2008 is blank, which also corroborate the fact that nothing has been refunded to the complainant by the opposite party. 8. Admittedly, the OP is not in position to deliver the possession of the plot in question because of pendency of the litigation and the fact that the area has not been developed so far. The complainant cannot be made to wait indefinitely for delivery of the possession of the plot and for execution of the transfer deed. In these circumstances, to our mind, the complainant is entitled to the refund of the entire amount paid by him as sale consideration along with interest. 9. For the sake of argument, even if it is admitted that the opposite party did not want to invest money for development of the land due to the pendency of the writ petition, even then the complainant is entitled to the return of the amount paid by him in view of the undertaking/ public notice given by the opposite party itself vide advertisement in “The Tribune” dated 17.1.2007. The said advertisement reads as under:- “This is for the information of general public, all concerned and particularly for our esteemed intending allottees that tentatively the possession of plots for schemes of the company launched in year 2002 at Shalimar Estates Naggal-Alipur is to be given in this year since the matter is subjudice before the Hon’ble Punjab & Haryana High court on some technical issues as such possession of the plots may be delayed till the decision of the Hon’ble Court in case any regular intending allottees is not interested to wait till that time he/she is free to withdraw his application from the Scheme and can apply for refund of his deposited amount. However, the intending allottees who will continue with the Scheme will get the possession of plots after the decision of the Hon’ble Court. In case of any adverse decision by the Hon’ble Court due to which the Company will be forced to scrap the whole scheme then they will be entitled for full refund of their deposited amount till that time after the decision of the Hon’ble Court.” 10. From the bare reading of above said advertisement, it is apparent that the opposite party had given an undertaking to refund the amount to the persons who are not interested to wait till the decision of the writ petition. So, at this stage, the opposite party cannot turn round and say that the opposite party is not liable to refund the amount on the ground that the demand has been made at a late stage. There is nothing in the advertisement that a demand for refund should be made within a specific period. 11. In these circumstances, keeping in view the fact that the possession has not been delivered so far despite the fact that it was to be delivered in the month of March 2007 as per the terms and conditions, and the fact that vide advertisement reproduced above, the opposite party had agreed to refund the amount to the persons who are not interested to wait till the decision of the writ petition, to our mind, the complainant is entitled for the refund of the amount along with the interest. So, failure to get the said plot registered and further refusal to refund the amount to the complainant amounts to deficiency in service on the part of the opposite party. 12. In view of the above findings, this complaint is allowed with the following direction to the opposite party: - (i) to refund an amount of Rs.1,69,566/- to the complainant along with interest 9% per annum from the date of respective deposits till actual payment. (ii) to pay a sum of Rs.7,000/- to the complainant as costs of litigation. 13. This order be complied with by the opposite party within 30 days from the date of receipt of its certified copy, failing which the opposite party shall be liable to refund Rs.1,69,566/- to the complainant along with penal interest @18% p.a. from the date of respective deposits till its realization besides payment of Rs.7,000/- as costs of litigation. 14. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced. 16th January, 2012 Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER Ad/-
C.C.No.545 of 2010 Present: None. --- The case was reserved on 11.01.2012. As per the detailed order of even date recorded separately, this complaint has been allowed. After compliance file be consigned. Announced. 16.01.2012 Member President Member
| MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | |