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

Consumer Complaint No.739 of 2016

                                                  Date of institution:  28.10.2016                                                  Date of decision   :  06.07.2018

Harkanwaljeet Singh son of Paramjit Singh, resident of House No.966, Second Floor, Sector 17, Panchkula presently residing at # 1001, First Floor, Sector 17, Panchkula (Haryana).

…….Complainant

Versus

1.     Sky Rock City, SCO 2, First Floor, Phase-2, Mohali through its Managing Director/Authorised Officer.

2.     Navjeet Singh, President, The Sky Rock City Welfare Society, SCO 672, Sector 70, Mohali.

3.     Parminder Kaur, Authorised Person wife of Navjeet Singh, President, The Sky Rock City Welfare Society, SCO 672, Sector 70, Mohali.

4.     Navjeet Singh, President, The Sky Rock City Welfare Society, resident of House No.67, Sector 69, Mohali (Punjab).

                                                           ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Lovedeep Sareen, counsel for the complainant.

                OPs ex-parte.

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

Order

               Complainant, being allured by false promise of OPs agreed to purchase a plot in the upcoming project of New Chandigarh known as Mullanpur. Possession of the plot was assured to be delivered within period of three years from the date of booking, but after doing necessary development of providing civic amenities. Complainant booked the plot in the said project of the OPs by making initial payment of Rs.10,000/- through cheque regarding which receipt No.758 dated 20.10.2011 was issued. Complainant further made payment of Rs.1,68,000/- to OPs on their demand on 24.11.2011 through cheque regarding which receipt No.1198 was issued. In July, 2012 complainant paid   Rs.2,52,000/-, out of which Rs.1,82,000/- were paid through cheque dated 25.08.2012, but Rs.50,000/- were paid through another cheque of ICICI Bank. Balance amount of Rs.20,000/- were paid in cash. Receipt No.1486 dated 28.07.2012 was issued by the OPs. After making these payments, complainant visited office of OPs many times for knowing about the status of development, but till date no development work carried on the spot. Even demarcation of the plot and work of construction of metalled roads etc. has not been done though possession was to be delivered as per terms within 3 years w.e.f. 24.07.2011. Despite that development work not carried on the spot. Complainant claims to have paid Rs.4,30,000/- in all. In June, 2016 complainant contacted representative of OPs for asking as to when development work will be carried out. However, on visit by complainant to the site, he was shocked to see that no development carried out on the spot at all. Rather crops were standing at the site and there were no work of roads, sewerage or lighting etc. done on the spot After not receiving satisfactory explanation qua the date as to when the possession will be handed over to complainant, he sought refund of the paid amount. By claiming that OPs adopted unfair trade practice, prayer made for refund of the received amount of Rs.4,30,000/- with interest @ 12% per annum till disposal of the case. Compensation for mental harassment and agony of Rs.2.00 lakhs more claimed. Interest @ 12% per annum before the date of filing of complaint even claimed by mentioning the figure of total reimbursable amount of Rs.6,63,408/-.

2.             In reply filed by OP No.1 to 4 together it is claimed that complainant has not approached this Forum with clean hands because he intentionally has suppressed the material facts regarding the agreement. Besides it is claimed that complaint has been filed for abusing process of law for blackmailing the OPs. Even it is claimed that complainant has no locus standi. Complaint also alleged to be premature because before submitting written request regarding refund, no cause of action has arisen in favour of the complainant. This complaint is filed for seeking refund of the paid amount and as such it is claimed that as per terms and conditions of agreement, interest @ 8% per annum from the date of requisition alone can be allowed. That requisition was made on 10.03.2015 only. As per condition No.4 of terms and conditions of agreement, refund can be sought after period of three years from the date of requisition. It is claimed that complainant has failed to make payment as per payment schedule and as such in view of condition No.9 of terms and conditions of agreement, membership liable to be cancelled. Society is run on “no profit no loss basis”. Complainant is alleged to be not a consumer of OPs. OP society is governed by rules of the society and it is not a builder. No assurance was given by OPs to complainant. Possession of the plot in question was to be delivered, if complainant deposited 90% of the payable amount. Other averments of the complaint denied.

3.             Complainant tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to C-5 and thereafter closed evidence. OPs have not led any evidence and as such their evidence was closed by order, but thereafter they were proceeded against ex-parte.

4.             Written arguments not submitted. Oral arguments heard and records gone through.

5.             Complaint against OP No.3 is not maintainable because it is not mentioned as to in what way OP No.3 is authorised person. None of the payments received by OP No.3 and nor she signed the allotment letter or any other document produced on record and as such complaint against OP No.3 is not maintainable, albeit the same is maintainable against remaining OPs.

6.             Unrebutted evidence produced by complainant in the shape of his affidavit Ex.CW-1/1 alongwith those of receipts Ex.C-1 to Ex.C-3 establishes that an amount of Rs.4,30,000/- has been paid by complainant to OPs and the same received by the OPs. Complainant became member of OP No.1 society for getting the residential plot, but development on the site has not been carried out and that is why complainant sought refund of the paid amount of Rs.4,20,000/- + Rs.10,000/- membership fee, by sending application Ex.C-4 to OP No.2. So it is obvious that first ever requisition for refund of amount was submitted by complainant to OPs on 10.03.2015 through Ex.C-4. Despite this requisition, complainant has not been reimbursed back the paid amount.

7.             Contents of affidavit Ex.CW-1/1 of complainant alongwith that of application Ex.C-4 shows that no development work on the spot has been carried out. Rather the land on the spot is still agricultural land. No work of sewerage or of roads or of lights carried on the spot and as such it is obvious that OP society has no intention virtually to develop the site in question. Complainant deposited the amounts during period from 20.10.2011 to 28.07.2012 with hope that possession will be delivered to him within three years of booking of plot by him. However, finding that no construction activity carried on the spot, this complaint filed on 28.10.2016 i.e. after more than 5 years after becoming of member by complainant. As development activity not carried on the spot for more than 4 years after the last payment of Rs.2,52,000/- on 28.07.2012 and as such certainly complainant and other customers bound to get disillusioned for having sense as if they have been cheated by OPs. Being so, request for refund submitted by complainant is on account of compelling circumstances generated by OPs. OPs cannot be allowed to retain the hard earned money of complainant for long, particularly when they have failed to abide by their obligation of developing the site for carving out the residential plot on the site.  In such circumstances, the complaint is not pre-mature.

8.             As per condition No.3 of terms and conditions endorsed on receipts Ex.C-2 and Ex.C-3 each, the applicant, if does not want to continue even after paying some installments, then he will be entitled for refund of the entire paid amount with interest @ 8% per annum, but after three years from the date of registration. Question of getting the sale deed executed and registered does not arise in this case, more so when OPs have not carried on any development activity on the spot for converting the agricultural land into residential blocks. In view of the fact that refund of the amount sought after more than three years of complainant becoming member of OP society by submitting application Ex.C-4, it is found that complainant is entitled for refund of the entire paid amount of Rs.4,30,000/- with interest @ 12% per annum from the date of first demand namely 10.03.2015 (put forth through Ex.C-4)  till payment. Equitable considerations demand allowing of interest at above referred rate. As complainant suffered mental harassment and agony and was dragged to litigation, due to inaction of OPs in not developing the site and as such complainant entitled to compensation for mental harassment and agony of Rs.20,000/- but to litigation expenses of Rs.5,000/- more.

8.             As a sequel of above discussion, complaint allowed with direction to OP No.1, 2 and 4 to refund the received amount of Rs.4,30,000/- with interest @ 12% per annum with effect from the date of first demand namely 10.03.2015, put forth through Ex.C-4, 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, 2 and 4.  Complaint against OP No.3 is, however, dismissed. Liability of paying the amount of compensation and litigation cost, of OP No.1, 2 and 4, will be joint and several. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order.  Certified copies be supplied to the parties as per rules.        File be indexed and consigned to record room.

Announced

July 06, 2018.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member