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

Consumer Complaint No.723 of 2016

                                             Date of institution:  21.10.2016

                                             Date of decision   :  11.05.2018

1.     Meenu Bhatia wife of Sandeep Kumar.

2.     Sandeep Kumar son of Shri Mohtber Rai.

        Both residents of # 287-A, Sector 30-A, Chandigarh.

…….Complainants

Versus

The Sky Rock City Welfare Society, Mohali, Banur Road, Back Side C.G.C. College, Landran, Sector 111-112, Mohali through its Director.

……..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:     Complainants in person with counsel                  Shri S.K.Khurcha.

                OP Ex-parte.

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

Order

               Complainants paid Rs.10,000/- to OP on 01.08.2011 as per its demand. As per assurance, physical possession of the plot was to be given after receiving 90% cost of the plot amounting to Rs.13,50,000/- and Rs.1,12,500/- as 50% of EDC charges. Besides another amount of Rs.10,000/- was payable and as such Rs.14,72,500/- was paid.  Physical possession of the plot was agreed to be handed over within two years after registration of plot. Despite that said physical possession has not been handed over till date. It is claimed that OP has violated terms and conditions of allotment of plot as printed on the registration slip.  Provisional allotment letter dated 20.01.2016 was issued. OP himself guided the complainants with intent to cheat them, for earning undue benefit. Location of the plot is not mentioned in Sector 111-112 and OP has numbered the plot in air. In fact plot does not exist because no development carried on the spot. Representations were received by OP on 04.02.2016 for delivery of physical possession of the plot and subsequently on many occasions, but to no effect. Even the paid amount, despite request has not been returned for humiliating and harassing complainants and as such this complaint for seeking refund of Rs.14,72,500/- with interest @ 24% per annum alongwith legal expenses of Rs.55,000/- and compensation for mental agony and harassment of Rs.3.00 lakhs.

2.             In reply submitted by OP, it is pleaded inter alia as if complainants have not approached the Forum with clean hands; complaint filed for abusing process of law for blackmailing and harassing the OP; complainants have no locus standi and that terms and conditions of the agreement have not been disclosed. It is claimed that in earlier cases titled as Pankaj Mahajan Vs. The Sky Rock City bearing first Appeal No.147 of 2015 decided on 03.08.2015 by Principal Bench of Hon’ble Punjab State Consumer Disputes Redressal Commission, it has been held that persons like complainants can seek refund of their payments made to the society alongwith interest of 8% per annum after expiry of three years from the date of requisition as per Clause-4 of terms and conditions accepted by the members. Revision preferred against those orders even has been dismissed by Hon’ble National Consumer Disputes Redressal Commission on 03.08.2015 as revealed by orders passed in Revision Petition No.3049 of 2015. In view of this, it is claimed that refund of the amount paid by members can be made only after expiry of three years from the date of requisition i.e. written request made by members. Similar view alleged to be taken in First Appeal No.560 of 2015 titled as Romesh Garg Vs. M/s. Sky Rock City and others decided on 15.09.2016 by Hon’ble National Consumer Disputes Redressal Commission and also in case titled as M/s. Sky Rock City Welfare Society Vs. Kanta Devi bearing First Appeal No.985 of 2015 decided on 15.09.2016. Moreover, Hon’ble Supreme Court of India in Civil Appeal No.331 of 2007 titled as Ganeshlal Vs. Shyam has held that where sale of land simplicities, then the dispute will not be a consumer dispute. It is claimed that complainants are bound by terms and conditions of the agreement and as such they at the most are entitled for refund of money with 8% interest after expiry of period of three years from the date of requisition. In this case, no requisition alleged to be submitted. In letter dated 06.05.2014 issued by GMADA to OP society, construction work has been directed to be completed on or before 05.05.2017.  So it is claimed that complainants have no right to claim possession of the plot. Moreover, three years from the date of requisition has not been completed and as such present complaint prayed to be dismissed. Rather as per license issued under Section 5 of the Act, GMADA authorities vide letter dated 06.05.2014 has called upon OP to handover possession within 3 years i.e. on or before 05.05.2017. So the present complaint alleged to be premature. OP applied for change of land use and GMADA authorities granted permission on 14.09.2011. Thereafter OP got deposited CLU payments as well as other dues/fees with GMADA from time to time. Even application for passing of lay out plan with GMADA authorities has been filed. That has been approved on 09.01.2012. No objection certificate with regard to 25 acres of land of OP was granted in favour of society by departments like Forest, Pollution Control Board, Electricity Board, Indian Air Force, Municipal Council Kharar etc. Letter of intent dated 23.09.2013 was issued by GMADA for setting up residential colony in village Behrampur, H.B. No.38, Sector 111-112, District SAS Nagar under Rule 11 (3) of PAPRA Rules. OP has furnished a bank guarantee by submitting guarantee bond under the bank guarantee scheme on 08.10.2013 for an amount of Rs.1,50,25,000/- equal to 25% of the estimated cost of development works of society. Department of Forest & Wild Life Protection vide letter dated 30.09.2013 issued no objection certificate and likewise Drainage Department also issued letter dated 01.10.2013 for no objection certificate. GMADA vide letter dated 06.05.2014 issued license for developing colony. Complaint filed by complainants alleged to be containing misleading and inaccurate statements. Clause-17 of the memorandum of society provides for arbitration and as such present complaint alleged to be not maintainable. Society runs on no profit no loss basis. Frivolous and vexatious complaint prayed to be dismissed by invoking Section 26 of the Consumer Protection Act. Other averments of the complaint denied.

3.             Counsel for complainants tendered in evidence affidavit Ex.CW-1/1 of complainant No.1 alongwith documents Ex.C-1 to C-6 and Mark-A and thereafter closed evidence.  No evidence produced by OP and nor anybody appeared and as such evidence of OP was closed vide order dated 04.12.2017. Even subsequent thereto none appeared for OP till 07.03.2018. On 07.03.2018 Shri Jagseer S. Jassi, Advocate filed memo of appearance through clerk. Thereafter none turned up for OP. OP was proceeded against ex-parte vide order dated 22.04.2018 before that and said order to prevail.

4.             Written arguments submitted by complainants but not by OP. Oral arguments of counsel for complainant heard and records gone through.

5.             Ex.C-1 is receipt showing as if complainants deposited Rs.10,000/- as membership fee for becoming members of OP society. After becoming members, complainants deposited Rs.4,50,000/- vide receipt Ex.C-2 on 31.12.2011; Rs.4,00,000/- vide receipt Ex.C-3 on 16.09.2015; Rs.6,12,500/- vide receipt Ex.C-4 dated 30.11.2015 and as such certainly complainants able to establish as if they have deposited Rs.14,72,500/- in all including membership fee until 30.11.2015. Demand for claiming EDC, IDC charges with respect to Plot No.113 of Sector 110-111-112, Mohali was put forth by OP from complainants through letter Ex.C-5 dated 20.01.2016. This amount of EDC and IDC charges is not shown to be deposited after receipt of this requisition. So it is obvious that complainants committed default in not paying the demanded EDC and IDC charges. Even the total worth of the plot is not mentioned and nor the rate of the same mentioned in the complaint or in the submitted affidavit. So complaint virtually filed by not disclosing the complete particulars regarding payable sale consideration amount.  Even if OP has not led any evidence, despite that complainants are bound by terms and conditions endorsed on back of receipt Ex.C-1. After going through Ex.C-1, it is not made out as to what is the size of the plot or as to what is the cost of plot per sq. yard or in aggregate. However, in the table of these terms and conditions, it is mentioned that the amount will be payable in 5 installments and balance amount of 10% will be payable at the time of delivery of possession. Each installment has to be paid after three months. Complainants have become member of OP society on 01.08.2011 by depositing membership fee of Rs.10,000/- through receipt Ex.C-1, deposited amount of Rs.4,50,000/- for the first time on 31.12.2011, but thereafter deposited Rs.4,00,000/- on 16.09.2015 and as such virtually complainants did not deposit any more amount for period of 3 years and 8 months despite the fact that installments were payable after every three months. So virtually complainants have not adhered to the schedule of payment. Fault in this respect lays on part of complainants and as such they are not entitled to interest.

6.             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, 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, in view of above discussion.

7.             In terms and conditions bearing Clause No.3 endorsed on back of Ex.C-1, it is mentioned that membership fee is of Rs.5,000/- only. If that be the position then why Rs.10,000/- as membership fee accepted from complainants through receipt Ex.C-1, qua that no explanation coming forth and as such fault also lays with OP in not abiding by terms and conditions.

8.             As per Clause-4, if the applicant does not want to continue even after paying some installments, then he will be refunded the entire amount with prevailing interest per annum after one year from the date of registration. So this Clause-4 is in distinct words than that of the words of refund of the amount with interest @ 8% per annum after three years of requisition and as such benefit from ratio of cited case of Pankaj Mahajan Vs. The Sky Rock City; of case titled as Romesh Garg Vs. M/s. Sky Rock City and others or of case titled as M/s. Sky Rock City Welfare Society Vs. Kanta Devi referred in the written statement, cannot be availed by OP because in the reported cases clause-4 was specifically providing for allowing of interest @ 8% per annum after three years from the date of requisition, but in this case refund claimable with prevailing rate of interest after one year from the date of registration. That registration virtually took place in this case on complainants becoming member of OP society or by paying the above referred amounts upto 30.11.2015. However, complainants did not respond to demand of EDC and IDC charges put forth through letter Ex.C-5 dated 20.01.2016 and as such virtually major fault remained on part of complainants in not abiding by terms and conditions endorsed on back of Ex.C-1. As per Clause-7, the plot development cost will be charged as per PUDA/GMADA approved rates. In fact this clause mentions to EDC charges, but those have not been paid by complainants despite requisition through Ex.C-5 and as such also complainants not entitled for interest due to non compliance of terms and conditions deliberately committed by them.

9.             Even notice Ex.C-6 dated 02.09.2016 issued by complainants for calling upon OP to handover the physical possession of Plot No.113 within one month only. Through Ex.C-6, complainants claimed compliance of Clause-5 of terms and conditions of the agreement. That Clause-5 endorsed on back of Ex.C-1 provides that physical possession of the plot will be handed over not later than two years of registration/requisition. So virtually complainants sought physical possession of plot by issue of notice Ex.C-6 instead of seeking refund.  Vide Ex.C-6 complainants undertook to pay balance amount to OP society on getting possession, but now complainants have filed this complaint for seeking refund of the paid amount with interest alongwith compensation for mental harassment and agony and litigation expenses only. So it is obvious that now complainants by filing this complaint, even not seeking relief of physical possession sought through notice Ex.C-6 dated 02.09.2016. Complainants have changed their stand of seeking physical possession within one month of issue of notice by way of filing of this complaint and as such it is obvious that complainants themselves are not seeking physical possession by way of enforcement of agreement. This wavering mind of complainants further disentitles them from claiming interest prior to filing of this complaint. However, development activity has not been carried on the spot and that is why complainants have no option except to seek for refund and as such refund deserves to be allowed with interest @ 12% per annum from the date of complaint till payment. As complainants suffered mental agony and harassment due to inability of OP in not developing the site despite accepting deposits and as such complainants entitled for compensation for mental agony and harassment and also to litigation expenses.

10.            As a sequel of above discussion, complaint allowed with direction to OP to refund the received amount of Rs.14,72,500/- with interest @ 12% per annum with effect from the date of filing of complaint namely 21.10.2016 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 11, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                                (Amrinder Singh Sidhu)                                                                    Member

(Mrs. Natasha Chopra)

Member