DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.328 of 2017
Date of institution: 03.05.2017 Date of decision : 10.05.2018
Ankush Chandel son of Hira Lal, resident of Village Kotla, P.O. Thachi, Via Dhami, Tehsil Suni, District Shimla, HP.
…….Complainant
Vs
1. The Sky Rock City Welfare Society, Site Office 111-112, Near CGC College, Landran, SAS Nagar, Mohali through its President Navjeet Singh.
2. Navjeet Singh, President, The Sky Rock City Welfare Society, Site Office 111-112, Near CGC College, Landran, SAS Nagar, Mohali
3. Parminder Kaur daughter of Lachhman Singh, General Secretary, the Sky Rock City Welfare Society, Site Office 111-112, Near CGCCollege, Landran, SAS Nagar, Mohali. (Name of OP No.3 deleted vide order dated 17.11.2017).
……..Opposite Parties
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: Ms. Mandeep Kaur, counsel for complainant.
OPs No.1 and 2 ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
As through advertisements tall claims were made by OPs and as such complainant on being allured by those claims, paid sum of Rs.10,000/- on 21.10.2011 for becoming member of OP Society. Complainant agreed to purchase 150 sq. yards plot @ Rs.9,000/- per sq. yard i.e. at total cost of Rs.13,50,000/-. Following terms and conditions were settled:
1. Membership fee is to be deposited of Rs. Only. If due to any reason project not viable 50% of the membership fee may be refundable to the applicant.
2. Balance 50% amount of the registration amount will be adjusted in lieu of the membership of the Skyrock City Welfare Society.
3. If the applicant does not want to continue even after paying some installment, he/they will be refunded the entire amount with 8% interest P.A. after three years from the date of registration.
4. The plot will be handed over physically not later than three years of the registration/requisition.
6. The Map copy of location of website www.gamada.org (GAMADA Mohali) of Sector.
7. Plot Development cost will be charged as per PUDA/GMADA approved rate (EDC) and M/s. Skyrock City Welfare Society (Act XXI of 1860) will not be enhance any further expansion cost Rs.1000/- sq. yards.
8. Society membership will be cancelled on non realisation of cheque due to any reason.
9. If the payment of installment is not made as per schedule (on quarterly basis), society can cancel membership and plot booking.
An amount of Rs.3,37,500/- was paid on 28.07.2012 through receipt and thereafter another amount of Rs.3,37,500/- more deposited vide receipt dated 12.11.2012 on demand of this amount. Though possession was to be handed over within three years from the date of registration namely 21.10.2011, but same has not been handed over till date. It has come to the notice of complainant that OPs booked large number of plots than the actual number of available plots, and as such it is claimed that unfair trade practice has been adopted by OPs. Despite service of legal notice dated 05.05.2016 seeking refund of the amount, same has not been done. After withdrawal of earlier Consumer Complaint No.37 of 2016 from this Forum, Consumer Complaint No.162 of 2017 was filed before the Hon’ble State Consumer Disputes Redressal Commission, Punjab. That complaint also was withdrawn with liberty to file fresh complaint before this Forum. By pleading deficiency in service on part of OPs, prayer made for refund of the paid amount of Rs.6,85,000/- with interest @ 18% per annum till realisation. Compensation for mental agony and harassment of Rs.2.00 lakhs and litigation expenses of Rs.55,000/- more claimed.
2. OP No.1 and 2 were proceeded against ex-parte vide orders dated 16.10.2017, but name of OP No.3 stood deleted from arrays of OPs vide orders dated 17.11.2017.
3. Complainant in exparte evidence has tendered his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-8 and Mark-A and thereafter counsel for complainant closed evidence.
4. Written arguments not submitted, but oral arguments addressed and those were heard. Records gone through.
5. Perusal of receipt Ex.C-1 reveals that complainant after paying Rs.10,000/- as membership fee became member of OP No.1 society on 21.10.2011. Application form for such membership Ex.C-2 was submitted by complainant and thereafter complainant deposited amount of Rs.3,37,500/- through receipt Ex.C-3 and another amount of Rs.3,37,500/- more through receipt Ex.C-5, but after receipt of demand/intimation letter Ex.C-4. So certainly it is made out that complainant has deposited Rs.6,85,000/- in all including membership fee with OPs.
6. After going through Clause-4 endorsed on receipts Ex.C-1, C-3 and C-5 each, it is made out that physical possession of the plot will be handed over to complainant not later than three years of registration/requisition. That registration took place on 21.10.2011 and as such certainly submission advanced by counsel for complainant has force that possession was to be delivered by 21.10.2014. However, that possession has not been delivered till date and as such certainly deficiency in service on part of OPs is there because they retained the money of complainant illegally, but without carrying the desired constructions for development of the project.
7. After going through receipts Ex.C-1, Ex.C-3 and Ex.C-5, it is made out that complainant was supposed to pay the total cost of the plot in six installments in all upto receipt of possession. However, complainant has deposited two installments alone through receipts Ex.C-3 and Ex.C-5 and as such it is obvious that complainant himself remained at fault in not abiding by terms and conditions of payment schedule.
8. 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 defaulter/wrong doer, 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. So certainly complainant is not entitled for interest until he put forth the demand for the first time for refund of the deposited amount. That request put forth for the first time on issue of legal notice Ex.C-7 dated 05.05.2016 and as such interest @ 12% per annum allowed with effect from this date. Copy of the postal receipt Ex.C-8 also produced on record by complainant to establish that the legal notice was sent to the OPs through registered post. Mark-A is copy of the order showing as if the complaint earlier filed by complainant before Hon’ble State Commission was dismissed as withdrawn with liberty to file fresh complaint before this Forum. Complainant has not been handed over physical possession of the plot because development activity alleged to be not carried on the spot and as such complainant suffered mental agony and harassment also. So reasonable amount of compensation for mental harassment and agony, and of litigation expenses needs be allowed.
9. As a sequel of above discussion, complaint allowed with direction to OP No.1 and 2 to refund the received amount of Rs.6,85,000/- with interest @ 12% per annum with effect from 05.05.2016 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 No.1 and 2. 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 10, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
