BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.200 of 2015
Date of institution: 05.05.2015
Date of Decision: 27.01.2016
Ms. Nisha Gautam wife of Alok Gautam resident of House No.3194/2, Sector 44-D, Chandigarh.
……..Complainant
Versus
M/s. Shivalik Site Plainer Pvt. Ltd., SCO No.510, Sector 70, SAS Nagar, 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 Sandeep Bhardwaj, counsel for the complainant.
None for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following directions to the Opposite Party (for short ‘the OP’) to:
(a) refund Rs.5,18,000/- deposited with the OP with interest thereon @ 18% per annum from the date of deposit till realisation.
(b) pay interest @ 18% on Rs.1,50,000/- and Rs.50,000/- from the date of receipt till payment.
(c) pay her Rs.5.00 lacs for mental agony, financial loss and physical harassment.
(d) pay her Rs.50,000/- as litigation charges.
The case of the complainant is that she agreed to purchase two bed room flat from the OP at a cost of Rs.28.00 lacs plus taxes. The complainant deposited Rs.7,18,000/- with the OP vide receipts Ex.C-1/1 to C-1/6. The complainant was allotted Flat No.C-12, D Block, IInd Floor. The complainant visited the site on 16.11.2011 and found that there was no new construction as per the lay out plan. On enquiry it was known that the project has been sold and there was no D block as the entire plan has been changed. The project is now owned by Mona Greens and that company is demanding more amount from the complainant. The complainant asked the OP to show her the permissions and approvals required for obtaining money from her but the OP failed to show such documents to her. One Mr. Daljit and Mr. Heera of the OP told her to accept the refund alongwith interest to which the complainant agreed. Out of the total deposited amount of Rs.7,18,000/-, the OP has refunded Rs.2.00 lacs to the complainant and the remaining amount of Rs.5,18,000/- has not been refunded. Even out of the refunded amount of Rs.2.00 lacs, Rs.1.50 lac was refunded through demand draft and Rs.50,000/- through cash on 02.01.2015. Thereafter the complainant sent many messages to the OP to refund the amount but OP has not done anything. With these allegations the complainant has filed the present complaint.
2. The OP in its reply has pleaded in the preliminary objections that at the time of taking refund of Rs.2.00 lacs the complainant was given option for alternative flat at Paradise Apartment or Shivalik Tower. Neither the complainant submitted her option nor made payment towards the flat. Thereafter the complainant never visited or appr0oached the OP to intimate final decision. The complainant had booked the flat for commercial purpose and when it appeared to the complainant that there is slump in the real estate, the complainant changed her mind and adopted dilatory tactics and stopped making payment. The dispute, if any, is regarding recovery of money which is of civil nature and present complaint under Consumer Protection Act is not maintainable. On merits, it has pleaded that the OP has got all necessary permissions and approvals for the project and after construction of the flats has delivered possession to the allottees who are presently residing comfortably. The complainant after making part payment did not execute the agreement. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. To succeed in the complaint, the complainant tendered in evidence affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-6.
4. After closure of evidence by the complainant on 23.09.2015, the case was adjourned to 19.10.2015 for evidence of the OP. On 19.10.2015 Shri Parveen Kumar, representative of the OP requested that the counsel is in some personal difficulty and sought adjournment for the evidence. Accordingly the case was adjourned to 05.11.2015 for evidence of the OP. On 05.11.2015 proxy counsel appeared for counsel for the OP and sought adjournment on the ground that the counsel is unwell and sought adjournment. The case was then adjourned to 01.12.2015 for evidence of the OP. Then on 01.12.2015 none appeared for the OP and the case was adjourned to 17.12.2015 for evidence of the OP subject to payment of cost of Rs.500/- to be paid to the complainant. On 17.12.2015 neither the cost was paid nor did anybody appear for the OP. The complaint was adjourned to 13.01.2016 for arguments. On 13.01.2016 none appeared for the OP and arguments of counsel for the complainant heard.
5. We have heard learned counsel for the complainant and have also gone through the written arguments submitted by him.
6. The booking and allotment of 2 bed room flat No.C-12 D Block, 2nd Floor for a total sale consideration of Rs.28.00 lacs plus taxes by the complainant in the project of the OP is not disputed. Further the deposit of Rs.7,18,000/- vide receipts Ex.C-1/1 to C-1/6 from 06.05.2011 to 09.12.2011 is not disputed. As per the complainant when she found no construction activity at the site, even the OP has changed the entire layout plan showing no D Block, disbelieving the intention of the OP, the complainant sought refund of the deposited amount and OP has refunded Rs.2.00 lacs i.e. Rs.1.50 lac by demand and Rs.50,000/- by cash on 02.01.2015 as bank pass book Ex.C-2 and have illegally retained the balance amount of Rs.5,18,000/-. Therefore the complainant has filed the present complaint.
7. In reply to the complaint the OP has admitted having refunded Rs.2.00 lacs but denied illegal retention of the balance amount because as per the Op it has offered the complainant an alternative flat. Neither the complainant has submitted her option for alternative flat or has made any further payment.
8. Thus, it is ample clear that Rs.5,18,000/- has been retained by the OP till date, depriving the complainant of its use and benefit, thus causing her financial loss and damage. Even if it is believed that the OP has offered the complainant alternative flat, but once that option has not been exercised by the complainant, as the OP has itself admitted in its written reply then under the circumstances, the OP is in no manner entitled to retain the amount of Rs.5,18,000/- without rendering any services and justifiable reasons. The act of the OP in not giving refund of the amount is an act of unfair trade practice and deficiency in service.
9. Hence the complaint is allowed with the following directions to the OP to:
(a) to refund to the complainant Rs.5,18,000/- (Rs.Five lacs eighteen thousand only) with interest thereon @ 12% per annum from the respective dates of deposit till actual refund.
(b) pay a lump sum compensation of Rs.20,000/- (Rs. Twenty 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.
January 27, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
