BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 75 of 2017
Date of Institution : 31.3.2017
Date of Decision : 21.12.2017.
Sonia wife of Shri Raj Kumar (daughter of Subhash Kataria) resident of Jail Ground Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Siswan Paradise Pvt. Ltd., SCO 28-29-30, 2nd Floor, Sector 9D, Madhya Marg, Chandigarh-16009 through its authorized signatory.
2. Siswan Paradise Pvt. Ltd., Opposite Axis Bank, Sangwan Chowk, Sirsa, Tehsil and District Sirsa through its authorized person.
3. Emerging Valley Pvt. Ltd., SCO 46-47, 1st Floor, Sector 9D, Near Matka Chowk, Madhya Marg, Chandigarh-160009 through its authorized person.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. Pankaj Singal, Advocate for the complainant.
Opposite parties no.1 and 2 exparte.
Sh. Rajneesh Sharma, Advocate for opposite party no.3.
ORDER
The case of the complainant in brief is that opposite parties are indulged in the business of colonization having their registered offices at the above mentioned addresses and having its branch office at Sirsa. In the year 2012, the authorized agent/ Manager of ops no.1 and 2 approached and allured the father of the complainant to apply for cottage farm house in their scheme/ project “Siswan Paradise” and if the applicant succeeds in the draw, the father of the complainant would be entitled for cottage farm house on nominal price alongwith assured gifts. The father of the complainant believed upon the version of the ops no.1 and 2 and applied for “Cottage Farm House” alongwith earnest / security money and other documents vide application No.69069 and thereafter the ops no.1 and 2 through their branch manager/ authorized person at Sirsa provided an allotment vide certificate bearing Sr. No.01165 in favour of the father of the complainant vide which a cottage farm house of 1210 Sq. yards in the project “Siswan Paradise” has been allotted vide docket No.SSWP-230 and also provided the schedule of the payment. It was buy back offer scheme and entire sale consideration was Rs.10,45,000/- including all charges and taxes, hence as per schedule, payment had been made by the father of the complainant. That there had been a written agreement deed for sale and executed between the parties on 3.5.2014. It is further averred that thereafter ops no.1 and 2 offered the father of the complainant to switch the whole amount in their other project and its sister concern. Hence, he switched in the other project of the ops no.1 and 2 or its sister concerned namely Emerging Valley Pvt. Ltd. i.e. op no.3 and at that time the ops assured that the allottee would be entitled for 1BK independent floor apartment in the same sale price i.e. payment received by the ops no.1 and 2 in project of Siswan Paradise and amount would be adjustcted in this project automatically, as such the allottee Subhash Kataria furnished an affidavit in this regard as per requirement of the ops. He had opted the switch offer. Accordingly the op no.3 confirmed the payment vide letter dated 17.11.2014 and thereafter allotted 1 BK residential floor covered area 380 Sq. feet in the coming project namely one Bed Room apartments located at Emerging Valley Pvt. Ltd., Landran-Bannur Road, Mohali vide provisional allotment No.EV/OBAD/ 3025 dated 27.11.2014 and also got executed an agreement in favour of the allottee. That on 9.12.2015, the allottee Subhash Kataria unfortunately died leaving behind his daughter Sonia complainant who was also nominee of the deceased Subhash Kataria as such the complainant appeared to the ops to get incorporated her name being allottee after the death of her father and op no.3 after due incorporation of the name of complainant issued provisional allotment letter alongwith terms and conditions dated 4.3.2016 in favour of the complainant. It is further averred that about three years have already been lapsed but neither the possession of the allotted property has been offered and delivered to the complainant nor the amount paid was refunded to her with interest. That the complainant a number of times approached the ops and requested them either to hand over the possession of the allotted property to the complainant or in the alternative to refund the amount with interest @18% per annum but the ops are avoiding the genuine requests made by the complainant on one false pretext or the other and now a week ago they have flatly refused to accept her genuine request. That it was the dream of father of the complainant to get allotted the aforesaid property to her daughter i.e. the complainant while being alive but on account of such act and conduct on the part of ops, this dream of the father of complainant could not be fulfilled in his lifetime. That the act and conduct of the ops clearly amounts to deficiency in service and unfair trade practice and they have caused unnecessary harassment and mental tension to the complainant. Hence, this complaint.
2. Opposite parties no.1 and 2 did not appear despite publication and therefore they were proceeded against exparte.
3. Opposite party no.3 appeared and filed written statement taking certain preliminary objections regarding maintainability, cause of action and concealment of true and material facts. It is submitted that dealing of the father of the complainant was with op no.1 and 2 and the answering op has no concern with the same. The father of the complainant as well as complainant has not complied with the terms and conditions of the said agreement and the complainant had stopped to pay the installments. It is pertinent to mention here that if the complainant is ready to comply the terms and conditions and are ready to pay the installments alongwith interest, then the answering op is ready to allot the plot to the complainant. It is further submitted that after the death of the father of the complainant, the complainant has not complied the terms and conditions dated 4.3.2015, hence the complainant is not entitled for the relief claimed. The complainant is not entitled for any possession or amount as alleged. Remaining contents of the complaint are also denied.
4. The complainant produced her affidavit Ex.C1, affidavit of her husband Sh. Raj Kumar Ex.C2 and copies of documents Ex.C3 to Ex.C12. On the other hand, op no.3 produced affidavit of Sh. Harmandeep Singh as Ex.R1.
5. We have heard learned counsel for the complainant as well as learned counsel for opposite party no.3 and have perused the case file carefully.
6. The complainant in order to prove her case has furnished her affidavit wherein she has reiterated all the averments made in the complaint. She has also furnished affidavit of her husband Raj Kumar Ex.C2 in which he has supported the case of the complainant. The complainant has also furnished copy of docket No.SSWP-230 issued by the opposite parties no.1 and 2 vide which father of the complainant namely Subhash Kataria was allotted cottage farm house 1210 Sq. yard in the proposed project of Siswan Paradise of ops no.1 and 2 in the draw of lots held on 14.6.2012 vide application No.69069. Accordingly, the father of the complainant paid an amount of Rs.5,00,000/- to the ops no.1 and 2 and the ops no.1 and 2 have issued cheque receipt of the above said amount on 8.9.2012, the copy of which is placed on file as Ex.C4. The opposite parties no.1 and 2 gave buy back offer vide letter dated 8.9.2012 Ex.C5 mentioning therein that the company offers to Buy Back after three years from the date of purchase i.e. 25th April, 2012 and the buy back amount shall be Rs.12,84,000/- and a relaxation of amount of Rs.2,39,000/- was given vide this letter and as such total price to be paid by the allottee was Rs.10,45,000/- and the father of the complainant had already made payment of Rs.5,00,000/- to the ops no.1 and 2. Thereafter, a sale agreement (full and final) was executed between the Director of ops no.1 and 2 and the father of the complainant Subhash Kataria regarding the plot and father of complainant had paid total amount of Rs.9,00,000/- to the ops no.1 and 2 and agreed to pay the remaining amount to them and the seller assured the purchaser to hand over the physical possession of the plot in question after three years from the date of full payment and in case of default the purchaser shall be entitled to refund of full and final amount paid by him alongwith simple interest at the rate of 10% per annum on proportionate basis from the date of deposit till date of receipt of payment. The complainant has furnished copy of agreement in this regard as Ex.C6 and copy of receipt of amount of Rs.9,00,000/- vide different cheques on various dates as Ex.C7. It is also proved fact on record that thereafter the ops no.1 and 2 offered the father of the complainant to switch the whole amount in their other project of sister concern i.e. op no.3 and at that time the ops assured that the allottee would be entitled for 1 BK independent floor apartment in the same sale price and amount would be adjusted in this project automatically as such father of complainant furnished an affidavit in this regard as per the requirement of the ops. The copy of said affidavit which was duly received by ops on 6.11.2014 is also placed on file as Ex.C8. The opposite party no.3 on 27.11.2014 issued payment confirmation letter to the father of complainant thereby confirming that amount of Rs.9,00,000/- vide application No.69069 from Siswan Paradise has been transferred in OBA-D-3025 as per his request and the opposite party no.3 issued a provisional allotment letter dated 27.11.2014 to the father of the complainant regarding one BK independent floor i.e. one bed room apartment located at Emerging Valley(P) Ltd. Landran-Bannur Road, Mohali. Then after the death of father of complainant, op no.3 issued provisional allotment letter to the complainant on 4.3.2016 regarding one bed room apartment. The pleadings and evidence led by the complainant goes as unchallenged and unrebutted qua ops no.1 and 2 as they have opted to be proceeded against exparte. The opposite party no.3 has simply stated in para no.4 of its written statement that father of the complainant as well as complainant has not complied with the terms and conditions of the agreement and complainant had stopped to pay the installments. It is further replied that if the complainant is ready to comply the terms and conditions and is ready to pay the installments alongwith interest, then the answering op is ready to allot the plot to the complainant. Whereas the op no.3 has taken a contradict stand regarding allotment of the plot from its own
documents wherein it has allotted one bed room apartment initially to the father of the complainant and after his death to the complainant. From the evidence led by the complainant, it is proved that op no.3 is the sister concern of ops no.1 and 2 and the amount of Rs.9,00,000/- paid by the father of the complainant has been transferred to op no.3 by ops no.1 and 2. Moreover, the op no.3 has not totally denied the case of the complainant. It is proved beyond any doubt that the opposite parties have failed to hand over the possession of the floor in question to the complainant so far and it amounts to deficiency in service.
7. In view of the above, we allow the present complaint and direct the opposite parties specially op no.3 to hand over the possession of one Bed room residential floor covering area of 380 square feet as per their provisional allotment No.EV/OBAD/3025 dated 27.11.2014/ 4.3.2016 in the same premises where it has originally been planned i.e. Emerging Valley Pvt. Ltd., Landran-Bannur Road, Mohali and to execute necessary papers in favour of the complainant within a period of three months from the date of receipt of copy of this order. The complainant will have to pay the remaining outstanding amount, if any, to op no.3 with settled interest as per agreement between the parties. It is also made clear that in case the project is not completed due to any reason i.e. for want of necessary permission etc. from the Government, then the opposite parties will refund within one month after the expiry of said three months an amount of Rs.9,00,000/- to the complainant alongwith interest @ 18% per annum from the date 3.5.2014 i.e. date of receipt of the said amount issued by ops till actual payment. We further direct the ops to pay a sum of Rs.10,000/- as compensation to the complainant for harassment and delay. We also direct the ops to further pay a sum of Rs.5000/- as litigation expenses to the complainant. These orders have to be complied with jointly and severally by all the ops. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:21.12.2017. Member District Consumer Disputes
Redressal Forum, Sirsa.
