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

Consumer Complaint No.575 of 2016

                                                     Date of institution:  09.09.2016

                                                     Date of decision   :  04.05.2018

Subash Chander son of Shri Chajju Ram, resident of House No.1565, Basti Ali Pur, Opposite Street No.2, New Sodhi Nagar, Moga.

…….Complainant

Versus

1.     The Sky Rock City Welfare Society Welfare Corporative House Building Society, SCO 672, Sector 70, First Floor, Mohali, Punjab through its President Shri Navjeet Singh (Chota Brar)/Secretary/Director (First Address).

2.     The Sky Rock City Welfare Society Welfare Corporative House Building Society, SCO 26, First Floor, Phase-2, Mohali, Punjab (Second Address).

3.     Sky Rock City Welfare Corporative House Building Society through its President Shri Navjeet Singh (Chota Brar), Mohali, Sector 111-112, Punjab (Third Address).

……..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:     Shri Puneet Guleria proxy cl. Shri S.K. Guleria, counsel for the complainant.

                OP Ex-parte.

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

Order

               Complainant became member of OP Society by paying membership fee of Rs.10,000/-. Complainant deposited Rs.1,27,500/- with the OPs on 27.11.2012, but Rs.10,000/- on 20.10.2011 against receipts. Plot of size of 6 marlas was to be allotted to complainant. Possession was assured to be delivered within 6 months. Assurances were repeatedly given to complainant regarding allotment of plot, particularly when he contacted OPs and its representatives. However, on enquiry complainant got knowledge as if fraud has been committed with him and other members of the society because no development activity carried on the spot and nor the land is in existence. By claiming that OPs have adopted unfair trade practice, this complaint filed for refund of the received amount of Rs.1,37,500/- with interest @ 18% per annum. Compensation for mental harassment and agony of Rs.5.00 lakhs, but for loss of reputation of Rs.5.00 lakhs more claimed. Litigation expenses of Rs.50,000/- also claimed.

2.             OPs are ex-parte in this case.

3.             Complainant tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to C-11 and thereafter closed evidence.

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

5.             Affidavit Ex.CW-1/1 of complainant alongwith copy of application form for membership Ex.C-1 and receipt Ex.C-3 establishes that complainant became member of OP society on deposit of membership fee of Rs.10,000/- on 20.10.2011. It was after complainant becoming member of OP society that demand/intimation letter Ex.C-2 was issued for calling upon complainant to deposit Rs.2,55,000/- within 15 days of issue of Ex.C-2. Copies of receipts and cheques produced on record as Ex.C-4 to Ex.C-6 establishes that complainant had deposited a sum of Rs.1,37,500/- in all including Rs.10,000/- as membership fee. Virtually complainant became member of OP society for getting a plot allotted. However, as per case of complainant there is no land in the name of OP society in area of Mullanpur, but despite that huge amounts collected from members of society. In case the land in the name of society is not there, but amount in question collected from complainant by OP society, then certainly OPs adopted unfair trade practice.

6.             Letter Ex.C-2 dated 10.07.2012 was issued by OP society to complainant for calling upon him to deposit the next installment against registration of plot in name of complainant. Though demand of Rs.2,55,000/- through Ex.C-2 was put forth, but that amount has not been deposited by complainant at all and as such certainly complainant is at fault in not abiding by the demand of payment of Ist installment.  Virtually complainant after deposit of Rs.1,27,500/- on 27.11.2012 did not abide by the payment schedule or responded to demand put forth through letter Ex.C-2 for deposit of the specified amount. So certainly complainant is also defaulter in not abiding by the plan of paying installments in time. Through letter Ex.C-2 itself complainant was called upon to disclose, if he has already paid demanded amount through Ex.C-2 or not, but despite that response to this Ex.C-2 not shown to be given by complainant. So complainant himself did not abide by the terms of agreement arrived at between complainant and OPs. Complainant himself is defaulter in that respect. Being so continuous readiness and willingness on part of complainant to abide by terms of agreement for purchase of plot in question is not established. Had suit for specific performance been filed by complainant for enforcing the obligations arising under the contract of allotment of plot, then complainant in view of non compliance of requirement of remaining ready and willing continuously envisaged by Section 16 of Specific Relief Act would not have been entitled to relief prayed in civil suit because of his being defaulter.

7.             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 shown to have deposited one installment alone, but has not deposited the remaining installments despite demand through Ex.C-2. So complainant will be entitled to interest @ 12% per annum on the deposited amount with effect from 22.08.2016 the date of issue of legal notice Ex.C-7 through postal receipts Ex.C-8 only.  Complainant stood dragged in litigation due to fault of OPs in not developing the project and handing over possession after acceptance of balance amount and as such complainant is entitled for compensation for mental agony and harassment and to litigation expenses, but of reasonable amount, more so when OPs have not contested this case at all.

8.             As a sequel of above discussion, complaint allowed with direction to OPs to refund the received amount of Rs.1,37,500/- with interest @ 12% per annum with effect from the date of legal notice namely 22.08.2016 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 04, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                                   (Amrinder Singh Sidhu)                                                                 Member

(Mrs. Natasha Chopra)

Member