DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.755 of 2016
Date of institution: 04.11.2016
Date of decision : 04.05.2018
Ajay Jain son of Rajinder Kumar Jain, resident of House No.5552, Sector 38W, Chandigarh.
…….Complainant
Versus
The Sky Rock City Co-operative House Building Society Ltd., The Sky Rock City Welfare Society, Mohali, SCO No.26, First Floor, Phase-2, Mohali through its President.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri Maninder Singh Saini, cl. for the complainant.
OP Ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, after getting information from the OP that it has requisite licenses alongwith necessary approvals and clearances from the concerned authorities qua promoting and developing the residential accommodation project in Mullanpur, became member of the OP society by depositing membership fee of Rs.5,000/- through receipt dated 10.07.2011. After his enrollment as member, complainant booked the plot measuring 200 sq. yards with OP after making payment of Rs.1,40,000/- vide cheque dated 01.08.2011 drawn on Punjab National Bank. Thereafter another payment of Rs.2,80,000/- was made through another cheque drawn on Punjab National Bank. As per Clause-5 of terms and conditions settled between the parties, OP was to handover possession of the plot to complainant within a period of 2 years from the date of registration, but despite that said possession has not been handed over within the stipulated period of 2 years from the date of booking. Despite repeated visits to office of OP and submitting numerous representations, the matter is kept on lingering. Further complainant claims to have got information as if the project has been declared illegal and GMADA has cancelled the developers and promoters license of OP. Even complainant got information about the fraudulent activities of the OP through various news items. OP even refused to refund the paid amount despite demand and as such by claiming that the OP has adopted unfair trade practice, prayer made for refund of the paid amount of Rs.4,25,000/- including Rs.5,000/- as membership fee. Interest @ 18% per annum sought. Compensation for mental harassment and agony of Rs.1,00,000/-; compensation for providing deficient services of Rs.1,00,000/- and litigation expenses of Rs.50,000/- more claimed.
2. OP failed to submit reply and as such vide orders dated 10.03.2017 it was debarred from filing written reply.
3. Complainant tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to C-4 and Mark-A and thereafter closed evidence.
4. Evidence of OP was closed by order on 26.09.2017 because of repeated non appearance by OP and tender of evidence. As OP has not appeared since 10.03.2017 till date and as such OP treated as ex-parte vide order dated 15.02.2018.
5. Oral arguments of counsel for complainant heard and records gone through.
6. Complainant has produced on record Ex.C-1 to show that he deposited Rs.5,000/- as membership fee on 10.07.2011. Receipt Ex.C-2 is also produced on record to show that complainant deposited Rs.1,40,000/- with OP on 15.07.2011 as land cost. Moreover, by way of additional evidence complainant able to prove through copy of statement of account Ex.C-4 as if he paid Rs.2,80,000/- more to OP through instrument No.623924 dated 11.07.2012. As Ex.C-4 is copy of statement of account of complainant maintained with bank and as such by placing reliance on Ex.C-4 and Ex.C-2, there is no escape from the conclusion that complainant actually deposited Rs.4,20,000/- with OP. Refund of this paid amount of Rs.4,20,000/- is sought alongwith membership fee of Rs.5,000/- and complainant certainly is entitled to refund of this amount because OP failed to complete the project.
7. It is vehemently contended by counsel for the complainant that initial act of enrolling complainant as member itself was unfair trade practice because OP society never obtained the requisite licenses or permissions for developing colony before announcing publically about the initiation of project, in which site was to be provided to complainant. It is the case of complainant that GMADA and other authorities have cancelled the licenses granted to OP for initiating the project in question and as such certainly there is no utility for the complainant to remain member of OP society. It is not a case in which complainant expressed desire for discontinuance as a member of society nor it is a case in which complainant expressed desire to not remain interested in seeking the plot. Being so, Clause-4 of terms and conditions Ex.C-3 not applicable to the facts of the present case.
8. After going through Ex.C-3, it is made out that 10% of amount of cost of plot was payable as first installment; 15% as 2nd installment; 25% as 3rd installment; 25% as 4th installment, 15% as 5th installment and balance 10% payable at the time of getting possession. So it is obvious that complainant was bound to pay 5 installments before getting possession of the plot in question. Those 5 installments not shown to be paid by complainant and as such fault also lays with complainant in not paying amount as per schedule mentioned in Ex.C-3. As per law laid down in Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC), if the purchaser remained defaulter in not adhering to the installment payment plan, then he is not entitled for any interest, even though the builder had not developed the site, due to which he is not in a position to deliver possession. It is so because he who seeks equity must do equity. In case the equity seeker himself is deficient, then he is not entitled for any interest, is the crux of ratio of above said case. Ratio of this case is fully applicable to the facts of the present case, particularly when complainant shown to have deposited two installments alone, but has not deposited the remaining installments as per schedule of payments worked out in Ex.C-3. So complainant will be entitled to interest with effect from the date of filing of complaint when he sought refund of the deposited amount for the first time.
9. Clause-5 of Ex.C-3 provides that possession of plot will be handed over physically not later than two years of registration/requisition. The dates on which requests submitted by complainant not disclosed and nor dates of numerous visits by complainant to OP for seeking possession of the plot or for seeking refund of entire amount disclosed in the complaint. The date on which complainant got information regarding cancellation of developers and promoters license of OP even not specified. So the particulars are vague as to when complainant got intimation about the alleged illegal act of OP of seeking deposits. Request for refund in writing even never shown to be submitted to OP by complainant in time and as such in view of these circumstances, it is fit and appropriate to order refund of amount deposited by complainant in toto with interest @ 12% per annum w.e.f. the date of filing of complaint namely 04.11.2016 till payment. It is so because on vague and general allegations, relief cannot be granted. As date of seeking of refund not disclosed and as such allegations regarding seeking of refund by complainant from OP remains vague and general one. However, complainant suffered lot of mental tension and agony because he remained unable to get possession within stipulated period of two years and as such complainant entitled to compensation for mental harassment and agony alongwith litigation expenses. Mitigating circumstances in this case remains that OP has not contested the claim virtually and that is why he did not file reply and nor adduced evidence and nor anyone appeared on its behalf for many dates. So quantum of litigation expenses assessed at Rs.5,000/- in such circumstances.
10. As a sequel of above discussion, complaint allowed with direction to OP to refund the received amount of Rs.4,25,000/- with interest @ 12% per annum with effect from the date of filing of complaint namely 04.11.2016 till payment. Compensation for mental harassment and agony of Rs.20,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against the OP. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. File be indexed and consigned to record room.
Announced
May 04, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
