MRS. NEENA SANDHU, MEMBER

1.       This is an appeal filed by the appellant/complainant against order, dated 8.7.2009 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as District Forum only), vide which, it dismissed the complaint in limine.

2.         Briefly stated, the facts of the case are, that the complainant had booked a flat in Silver City Themes at Village Bhankarpur, M.C. Dera Bassi, Patiala, now SAS Nagar, Mohali (Punjab) with the OPs and he paid a sum of Rs.1,89,500/- through cheque bearing No.964451 dated 28.3.2006 drawn on ICICI Bank as booking amount. The Ops had acknowledging the same vide receipt No.1191 dated 28.3.2006. The complainant was allotted apartment No.135-C, CAT B-I, IIIrd Floor, having covered area measuring 1121.47 sq.ft. approximately, with parking, club membership and power backup. It was stated that an agreement of sale was entered into between the parties on 28.3.2006.  It was further stated that the total cost of the flat was Rs.18,19,200/- to be paid in three installments, as per the agreement.  It was further stated that the complainant with the permission of OPs mortgaged the said flat and took a loan of Rs.15 lacs from the Bank of Baroda, Sector 22-B, Chandigarh to pay the 2^nd installment to them. The complainant after taking a loan of Rs.15 lacs from the Bank of Baroda, Sector 22-B, Chandigarh further paid an amount of Rs.15 lacs to the Ops. As per the condition No.3 of the agreement of sale, the Ops were to complete the construction of the apartments by 31.7.2007 i.e. at the time of payment of the 3^rd installment of 5% but it came to the notice of the complainant that the Ops had stopped the construction of the project, in which a flat was allotted to him, despite all the installments having been paid in time by him. It was further stated that the Ops kept silent over the progress of construction of the flat. Thus gave wrong information about the progress of construction made by them to the complainant. Thereafter the complainant made a request for the withdrawal of membership and refund of the amount deposited with interest at bank rate, to the OPs.  The OPs failed to promptly act on his request for refund of money and, ultimately, sent a cheque of Rs.1,89,500/- without interest that too on 20.12.2008.  The OPs again kept silent till May, 2009 when they gave the complainant four post dated cheques of Rs.3,75,000/- each but no interest was paid despite making several requests to the OPs whereas the complainant had to pay interest, on the loan amount, to the bank. The abovesaid act of the Ops amounted to deficiency, in service, and indulgence into unfair trade practice. Hence, the complaint was filed.

3.       The complainant led evidence, in support of his case.

4.       The learned District Forum dismissed the complaint in limine, in the manner, referred to, in the opening para of the judgment.  

5.          Aggrieved by the order passed by the learned District Forum, the complainant filed an appeal. 

6.       We have heard Sh.H.P.S.Kochhar, Advocate for the appellant, Sh.Surinder Gera, Law Officer on behalf of respondents/OPs, have gone through the written arguments, and record of the case, carefully.

7.       The learned Counsel for the appellant submitted that the OPs sent a cheque of Rs.1,89,500/- without interest that too on 20.12.2008.  The OPs again kept silent till May, 2009, when they gave the complainant four post dated cheques of Rs.3,75,000/- each, but no interest was paid despite making several requests to them. It was further submitted that no prudent person shall invest his amount for such a long time and then simply ask for the refund of the same, without any interest on it. He further submitted that the OPs were liable to pay interest especially when they had the knowledge that the complainant had taken the loan, for the purchase of the flat, aforesaid. They had themselves granted the permission to mortgage the said flat and had also signed the agreement between the bank, them and the complainant.  He further submitted that the learned District Forum failed to appreciate the law point that even  if the complainant had taken his amount back, he did not cease to be a consumer for any deficiency in service by the Ops qua him. He further submitted that the learned District Forum had failed to appreciate that the complainant had taken the amount, under protest.

8.          Sh.Surinder Gera, Law Officer, on behalf of OPs argued that the learned District Forum dismissed the complaint because the amount deposited had already been received by the complainant. He further submitted that there was no agreement for payment of interest on the deposited amount in case of withdrawal of the same by the member. It was further submitted that the refund of the amount was sought  vide letter dated 5.6.2008 without interest. It was further submitted that having accepted for refund, from the OPs, without any condition the complainant had no right to agitate the matter regarding payment. He further submitted that there was no deficiency, in service, on the part of OPs.

9.       After giving our thoughtful consideration to the rival contentions, we are of the considered opinion that the OPs were certainly deficient in rendering service. Admittedly, the amount, aforesaid, was deposited by the complainant with the OPs, for the purchase of a flat, after raising the loan from the bank. The OPs failed to deliver the possession of the flat to the complainant even beyond the stipulated period. They used the huge amount deposited by the complainant, for a sufficient longer period. However, the complainant was paying interest, on this amount to the bank. The OPs, thus, withheld the amount deposited by the complainant, illegally, without adhering to the commitment made by them, regarding the delivery of possession of the flat within the stipulated time, and even long after the expiry thereof. Letter dated 29.12.2007, at page 49 of the District Forum record was written by the complainant to the OPs for the refund of amount with interest. If, in the subsequent letter, he inadvertently failed to claim interest that hardly mattered. Mere payment of the deposited amount, without interest, by the OPs to the complainant did not absolve them of their liability. Since, the amount deposited by the complainant was illegality withheld by the OPs, for a sufficient longer time, without fulfilling their commitment, and the complainant, on the other hand had, to pay interest regularly to the bank, on the loan amount for the payment of the price of the said flat, he was certainly entitled to interest on the refund of amount at a reasonable rate. Not only this, the complainant had also to undergo a lot of mental agony and physical harassment for a number of years, on account of the aforesaid acts of the OPs. The observation of the District Forum that the complainant was not entitled to interest as he did not demand the same is belied from the letter dated 29.12.2007 referred to above. The OPs were certainly deficient in rendering service to the complainant. The learned District Forum was wrong in dismissing the complaint.

10.     For the reasons recorded above, the appeal filed by the complainant is allowed and the order passed by the learned District Forum is set aside. We direct the OPs to pay interest @ 18% p.a., from the respective dates of deposit of the amount by the complainant, till the payment thereof. This award of amount of interest @ 18% p.a. shall also take care of the mental agony and the physical harassment, suffered by the complainant, at the hands of the OPs. The OPs shall also pay costs of the litigation to the tune of Rs.5,000/-.  The OPs are directed to comply with the aforesaid order, within 30 days from the date of receipt of a copy of this order, failing which, they shall pay interest @ 9% on the amount referred to above, excluding the litigation expenses of Rs.5,000/-.

11.          Copies of this order be sent to the parties, free of charge. 

Pronounced.                                                                        

2^nd May, 2011.