DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:227 of 2010] Date of Institution : 16.04.2010 Date of Decision : 08.07.2011 ---------------------------------------------- Pancham Chand Katoch son of Late Sh. Dewan Chand Katoch resident of Flat No.124, Sector 1, Pocket 2, Dwarka, New Delhi. ---Complainant. V E R S U S Shalimar Estates (P) Ltd., having its Administrative Office at SCO No.110-111, Sector 8, Chandigarh through its Managing Director namely Sh. Ram Kumar Aggarwal. ---Opposite Party. BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT SMT. MADHU MUTNEJA MEMBER Argued BySh. Deepak Aggarwal, Advocate for the complainant. Sh. Arun Kumar, Advocate for the OP. PER LAKSHMAN SHARMA, PRESIDENT Sh. Pancham Chand Katoch has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to:- i) handover the possession of the flat allotted to the complainant or in alternative; ii) pay the amount in terms of money equivalent to the market price in the adjacent area or in alternative; iii) to allot any other plot of same size and dimensions in good locality or in alternative; iv) refund the entire amount paid by the complainant to the OP towards the costs of the plot along with interest @24% per annum from the date of respective deposits till actual payment; v) pay a sum of Rs.15 Lakhs as compensation/punitive damages for mental pain and agony. 2. The case of complainants is that he applied for allotment of a plot measuring 10 Marlas in Shalimar Estates, Naggal-Alipur. The said application was accepted by the OP and it allotted Plot No.13 measuring 10 Marlas in Shalimar Estates Naggal-Alipuar at Village Naggal Hadbast No.238. An agreement (Annexure C-5) was executed between the parties on 15.3.2002 regarding the sale of the said plot. As per the terms of the said agreement, OP agreed to sell the above said plot to the complainant for a sum of Rs.2,45,025/-. A sum of Rs.61,256.25Ps was paid as earnest money at the time of execution of the agreement whereas the remaining amount of Rs.1,83,768.25Ps was to be paid in six installments of Rs.30,628.13Ps along with interest as per the details given in Para No.3 of the agreement. 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. According to the complainant, he paid all the said installments regularly and the last payment of Rs.35,223/- was made as full and final payment along with interest on 18.1.2008. It has further been pleaded by the complainant that despite the fact that the complainant has already paid the entire sale consideration of the said plot and the period of more than eight years has expired from the date of allotment, neither OP has executed the Sale Deed in favour of the complainant nor the possession of the said plot has been handed over to him. OP was approached many times for seeking possession and for getting the Sale Deed executed but to no effect. The complainant wrote letters to the OP on 8.1.2008, 6.6.2008, 3.9.2008 10.11.2008, 10.1.2009, 2.4.2009, 1.9.2009, 16.12.2009 and 10.1.2009 requesting it to fix the date for execution of the Sale Deed. However, OP failed to give any response to the said letters. In these circumstances, the present complaint has been filed seeking the reliefs mentioned above. 3. In the written statement filed by OP, the facts regarding execution of the agreement for the sale of Plot No.13 measuring 10 Marlas in Shalimar Estates Naggal-Alipuar at Village Naggal Hadbast for Rs.2,45,025/- has been admitted. It has also been admitted that the complainant has already paid the total sale consideration of the plot in question. According to the OP, the Government of Haryana has wrongly lodged criminal proceedings against the OP 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 OP, the matter is still subjudice and the writ petition has not been decided so far. In these circumstances, according to the OP, the possession could not be delivered in time. Thus, according to the OP, non delivery of possession is for the reasons beyond its control and OP is still ready and willing to deliver the possession after the decision of the writ petition. So, in these circumstances, according to the OP, the complainant is not entitled to the refund of the amount. So, 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.10 measuring 4 Marlas at the proposed Shalimar Estates Naggal-Alipuar at Village Naggal Hadbast for Rs.2,45,025/- and the complainant has already paid the entire sale consideration. 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’. Copy of the stay order has been annexed along with the written statement. From perusal of this document, it is apparent that stay has been granted in favour of OP. So, 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. For the sake of argument, even if it is agreed that the OP did not want to invest money for development 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 given by the OP 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.” 8. From the bare reading of above said advertisement, it is apparent that the OP 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, OP cannot turn round and say that the OP 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. The learned counsel for the complainant has vehemently argued that the complainant is now no more interested in the possession of the plot as it is already late by approximately four years and has prayed for refund of the total amount deposited by him with the OP. The complainant has also specifically made a prayer for refund of the entire amount deposited by him. 9. 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, OP 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/refusal to refund the amount to the complainant amounts to deficiency in service on the part of OP. 10. It is pertinent to mention here that vide deposit receipts (Annexures C-7 to C-12), the complainant had deposited in all an amount of Rs.2,80,437/-, which also includes interest up to 18.1.2008 as against the total consideration price of the plot in question i.e.Rs.2,45,025/-. Thus, in our considered view, the complainant is entitled to the full amount, he has deposited to the tune of Rs.2,80,437/-. 11. In view of the above findings, this complaint is allowed with the following direction to the OP: - (i) to refund an amount of Rs.2,80,437/- 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. 12. This order be complied with by the OP within 30 days from the date of receipt of its certified copy, failing which OP shall be liable to refund Rs.2,80,437/- 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. 13. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 8th July, 2011 Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Ad/-
C.C.No.227 of 2010 Present: None. --- The case was reserved on 07.07.2011. As per the detailed order of even date recorded separately, this complaint has been allowed. After compliance file be consigned. Announced. 08.07.2011 President Member
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