DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.337 of 2016
Date of institution: 06.06.2016
Date of decision : 01.03.2018
Narayan Kumar son of Shri Kameshwar Tati resident of House No.1029, Dhanas, U.T. Chandigarh.
…….Complainant
Versus
1. Sky Rock City Welfare Society (Regd.), (No.2831/10, Sec.111/112, PUDA Approved, SCO No.672, Sector 70, Mohali, Punjab.
2. Mr. Navjeet Singh, President Sky Rock City Welfare Society (Regd.), R/o Site Office, Sector 111-112, Near Chandigarh Group of Colleges Landran, SAS Nagar, Punjab, India.
……..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: Complainant in person.
OPs Ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant got himself enrolled as share holder with OP society on 11.11.2013 and share certificate under signatures of OP No.2 as President of society was issued. On showing of certificate of registration as promoter by OP No.2 and on his claiming that letter of intent for carving out residential colony has been issued by GMADA, complainant paid Rs.8,57,500/- to OPs vide receipts. Even complainant was informed as if 25 acres of land at village Bairampur, Sector 111-112, District SAS Nagar has been cleared. Complainant was made to understand as if plot of 100 sq. yard will be provided to him. Rs.10,000/- was deposited as membership fee, but Rs. 7,72,500/- as 75% of the total cost of the plot alongwith Rs.75,000/- as EDC charges. Complainant requested OP No.2 to handover possession of the plot with ownership, but he kept on making excuses and that is why under compelling circumstances, letter dated 08.08.2015 to Ms. Anjali, an employee of the OPs was issued by the complainant. OP No.2 subsequently refused to refund the received amount and even did not bother to hand over possession of the plot despite service of legal notice and as such this complaint filed for seeking refund of amount of Rs.8,57,500/- with interest of 18%, which is quantified at Rs.54,022/-. Compensation for mental harassment and agony of Rs.5,00,000/- and litigation expenses of Rs.2.00 lakhs more claimed.
2. OPs failed to submit written reply within period of 45 days and as such right of OPs to file written version was struck of vide orders dated 03.10.2016.
3. Complainant after tendering in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to C-8 closed his evidence. However, OPs failed to produce any evidence and as such in view of grant of number of opportunities, evidence of OPs was closed vide orders dated 04.09.2017.
4. None was appearing on behalf of OPs since from 13.07.2017 and as such OPs were proceeded against exparte vide orders dated 28.02.2018.
5. Written arguments and oral arguments submitted by complainant and record gone through.
6. Contents of affidavit Ex.CW-1/1 of complainant alongwith share certificate Ex.C-1 establishes that complainant became member of OP No.1 society w.e.f. 11.11.2013. Copy of certificate of registration as promoter Ex.C-2 establishes as if OP No.1 society was given certification for operation in the State of Punjab for developing colony except in the area declared as Controlled Area under Punjab New Capital (Periphery) Control Act, 1952. Further this granted permission can be cancelled or withdrawn as per terms contained in Ex.C-2 itself. Notice Ex.C-3 was issued by GMADA to OP No.1 society for calling upon it to comply certain conditions mentioned in Ex.C-3 and in case it failed to comply with the conditions, then LOI may be deemed to be cancelled. It is on basis of Ex.C-2 and Ex.C-3 that complainant got knowledge as if certificate of operation has been obtained and LOI may be obtained by OP No.1 society. Deposits of amounts of Rs.10,000/-; Rs.1,03,000/-; Rs.1,65,100/-; Rs.2,46,900/-; Rs.1,50,000/- and Rs.1,82,500/- by complainant with OP No.1 society established by photocopies of receipts produced on record as Ex.C-4 in this case. So deposit of Rs.8,57,500/- in all including membership fee by complainant with OP No.1 society is established. However, despite assurance plot was not given to complainant within stipulated time of two years from the date of registration and as such complainant through written request Ex.C-5 sent to OP No.2 as President of OP No.1 claimed as if he has no interest in continuing to be a member of the society. Refund of paid amount of Rs.8,57,500/- with interest claimed through Ex.C-5. Ex.C-6 is postal registered envelope and Ex.C-7 is postal receipt, whereas Ex.C-8 is legal notice sent by complainant through counsel for calling upon OPs to hand over physical possession of the plot to complainant failing which legal proceedings will be initiated. It is the case of complainant put forth through affidavit Ex.CW-1/1 that possession of the plot has not been handed over till date despite assurance to hand over the same and as such virtually recurring cause of action accrued in favour of complainant. In cases titled as Dream Land Promoters & Consultants Vs. Pramod Kumar, 2013 (1) CPC 357 (SC); Emaar MGF Land Ltd. and another Vs. Karnail Singh, 2014 (3) CPC 49 (NC); Rajubhai Tank, Director of Odhav Hari Developers Pvt. Ltd. & Ors. Vs. Bindraben Bharatkumar Mavani (Minor) through her Natual Guardian, 2014(1) CPC 624(NC); Pushpak Infrastructure Pvt. Ltd. Vs. Santanu Mukherjee 2014(3) CPC 336(NC) and Ram Niwas Garg Vs. Nagar Nigam, Kanpur & Anr. 2015(2) CLT 96 (NC), it has been held that if possession cannot be handed over to an allottee for any reason, then allottee entitled to refund of paid amount with interest. However, in case allottee paid the full sale consideration amount, then direction for execution of sale deed even can be issued. The total sale consideration amount in this case has not been paid and complainant claiming that OP No.1 society actually has not obtained the requisite sanctions or LOI license and as such virtually OPs unable to handover possession of the plot to complainant, despite his becoming member of OP No.1 society. As allurement to complainant was given with malafide intention without performing its part of allotting plot and as such certainly complainant entitled for refund of the entire paid amount of Rs.8,57,500/- inclusive of membership fee and other charges with interest @ 8% per annum with effect from the date of filing of complaint namely 06.06.2016 till payment. Complainant has not produced on record the terms of allotment, but the same available in other cases decided by this Forum. One of the condition in those terms and conditions is that if allottee does not want to continue as member after payment of few installments, then he is entitled for refund of the paid amount with interest @ 8% per annum and that condition is given effect to, more so when the request for refund made for the first time through Ex.C-5 and the refund sought through filing of this complaint only on 06.06.2016 virtually, but not through legal notice Ex.C-8. Rather through legal notice Ex.C-8 claim was staked for initiating legal action only for getting physical possession of the plot or of getting sale deed executed. Complainant has been dragged in this litigation due to fault of OPs and as such he is entitled for compensation for mental agony and harassment of amount of Rs.20,000/- with costs of litigation of Rs.5,000/-.
7. As a sequel of above discussion, complaint allowed with direction to OPs to refund the received amount of Rs.8,57,500/- with interest @ 8% per annum with effect from the date of filing of complaint namely 06.06.2016 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 OPs, whose liability is adjudged as 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
March 01, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
