DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.381 of 2017

                                             Date of institution:  31.05.2017

                                             Date of decision   :  10.05.2018

Baljit Kaur wife of Shri Gurmail Singh resident of 3463, Sector 40-D, Chandigarh.

…….Complainant

Versus

M/s. The Sky Rock Welfare Society, SCO No.672, First Floor, Sector 70, SAS Nagar 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 Mohan Singh Bedi, cl. for the complainant.

                OP Ex-parte.

Order by :-  Shri G.K. Dhir, President.

Order

               After getting knowledge regarding development of new township named as Sky Rock City in SAS Nagar through advertisements published in different newspapers, complainant applied for 100 sq. yards plot. Complainant deposited membership fee of Rs.5,000/- alongwith prescribed application on 10.06.2011. Rs.2,50,000/- more  was deposited on 10.06.2011 and thereafter amounts of Rs.50,000/-; Rs.2,00,000/-; Rs.2,00,000/-; Rs.75,000/-; Rs.45,000/-; Rs.1,55,000/-; Rs.75,000/- and Rs.1,00,000/- were deposited on 25.11.2011; 25.02.2012; 12.08.2012; 12.06.2012; 13.09.2012; 23.05.2015; 11.01.2016 and 04.04.2016 respectively. Receipts of these deposits were given to complainant. Plot No. 118M in Sector 110-111-112, Mohali of 200 sq. yards was allotted to complainant. Physical possession of the plot was required to be handed over not later than two years of agreement. Complainant has deposited Rs.11,55,000/- on above referred different dates with OP. Though request for handing over physical possession of the allotted plot was submitted, but said possession not handed over. Complainant issued legal notice through counsel dated 31.03.2017 for getting physical possession of the plot within 15 days on receipt of notice or in the alternative for refund of Rs.11,55,000/- with interest @ 24% with quarterly rests. By pleading deficiency in service on part of OP, this complaint filed for seeking remedy of getting physical possession of the allotted plot or in the alternative for refund of the deposited amount with interest @ 24% on quarterly rest. Compensation for mental agony and harassment of Rs.2.00 lakhs, but of deficiency in services of Rs.2.00 lakhs more claimed. Litigation expenses of Rs.50,000/- also claimed.

2.             OP is ex-parte in this case.

3.             Complainant through counsel tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to C-14 and thereafter closed evidence.

4.             Written arguments submitted by complainant. Oral arguments of counsel for complainant also heard and records gone through.

5.             Complainant has produced on record receipts Ex.C-3 to Ex.C-11 for establishing that she had deposited Rs.11.50 lakhs on different dates mentioned in Para No.2 of her affidavit Ex.CW-1/1. These amounts were deposited by complainant after becoming member of OP society on deposit of Rs.5,000/- as membership fee through receipt Ex.C-1. It was after deposit of membership fee that share certificate Ex.C-2 was issued in favour of complainant. So certainly submissions advanced by counsel for complainant has force that deposit of above referred different amounts took place in lieu of allotment of plot No.118M measuring 100 sq. yards in favour of complainant. Copy of provisional allotment letter Ex.C-12 also produced on record in this respect. It is vehemently contended by counsel for complainant that despite deposit of above referred amounts, complainant has not been delivered possession and as such there is deficiency in service on part of OP. Even though such deficiency in service on part of OP may be there, but despite that deficiency or fault on part of complainant is also there because she is not shown to have executed plot allotment agreement, albeit the same is a term of provisional allotment letter Ex.C-12. As complainant, through Ex.C-12, was specifically made aware that the provisional allotment made subject to acceptance and signing plot allotment agreement and as such it was the duty of complainant to call upon OP to execute the plot allotment agreement. No request for execution of plot allotment agreement shown to be submitted by complainant.

6.             Receipts Ex.C-1 and Ex.C-3 to Ex.C-11 cannot be considered to be complete receipts because in almost all other cases of OP society, terms and conditions of deposit of refund or of handing over of physical possession are printed underneath such receipts. However, those terms and conditions are not there on any of these receipts and as such virtually complainant herself has withheld the entire available material with her for gaining undue benefit by way of suppression of material facts.

7.             In legal notice Ex.C-13 it is specifically mentioned in Para No.4 that as per terms of the agreement, physical possession of the plot required to be given not later than two years to complainant, but terms of that agreement have deliberately not been produced and as such complainant virtually seeking relief through this complaint by concealing material facts regarding terms of the agreement. So complainant also is a wrong doer, and virtually by filing this complaint endeavouring to abuse the process of law by concealing material facts  

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 particularly when complainant herself has concealed the material facts by not disclosing the terms of agreement and proving that she adhered to installment payment plan. So certainly complainant is not entitled for interest until she 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-13 dated 03.04.2017 and as such interest @ 12% per annum allowed with effect from this date. 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 to refund the received amount of Rs.11,55,000/- with interest @ 12% per annum with effect from 03.04.2017 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 10, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                                (Amrinder Singh Sidhu)                                                                    Member

(Mrs. Natasha Chopra)

Member