DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.394 of 2017
Date of institution: 01.06.2017
Date of decision : 05.04.2018
Sukhbir Singh Gill son of Joginder Singh, resident of # 2609, Phase-7, Mohali.
…….Complainant
Versus
1. Sky Rock City Welfare Society (Regd.), SCO No.672, Sector 70, First Floor, Mohali, District SAS Nagar, Mohali through its President/Director/Authorised Signatory Navjeet Singh.
2nd Address
Sky Rock City, Site Office Behind Chandigarh Group of Colleges, Landran Road, Sector 111-112, SAS Nagar, Mohali.
2. Navjeet Singh, President of Sky Rock City Welfare Society, SCO 668, Top Floor, Sector 70, SAS Nagar (Mohali).
2nd Address
Sky Rock City, Site Office Behind Chandigarh Group of Colleges, Landran Road, Sector 111-112, SAS Nagar, Mohali.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri A.K. Handa, counsel for the complainants.
OPs Ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant after becoming member of OP society by deposit of Rs.10,000/- as membership fee on 10.06.2011, agreed to purchase plot of 100 sq. yards in Sector 111-112, SAS Nagar. Plot No.M-111 was allotted to him @ Rs.10,000/- per sq. yard. Complainant paid Rs.9,40,000/- to OPs through receipts, which amount was transferred to the earlier allottees. After transfer of the said plot to complainant, external development charges and IDC charges of Rs.2,50,000/- again were got deposited from him through cheque dated 19.04.2016. Despite payment of Rs.11,90,000/- against the proposed price of Rs.10,00,000/-, possession of the plot has not been handed over till date. Rather complainant got knowledge as if development work is not complete on the site. OPs unable to handover the possession of the plot to the allottees. Due to non delivery of possession of the plot, complainant suffered lot of mental tension and agony. Finally OPs refused to handover possession of the plot to the complainant in December, 2016. By claiming deficiency in service on part of OPs, prayer made for directing OPs to refund the received amount of Rs.11,90,000/- with interest @ 12% per annum from the date of payment till date of actual realisation. Compensation for mental harassment and agony of Rs.2.00 lakhs and litigation expenses of Rs.30,000/- more claimed.
2. In joint reply filed by OPs through Secretary of the Society on due authorization vide letter dated 15.04.2017, it is claimed that OP No.2 as President of the Society has not used the funds of the society for personal use and as such he is not personally liable. Rather it is claimed that OP No.2 has unnecessarily been impleaded as a party. Admittedly OP No.1 is a society registered under the Societies Act. This society does not work for profit because it works on principle of “No Profit No Loss” basis. Each member of the society was issued a share subscription of the membership of housing scheme of the society. So all members being share holders are owners of assets of the society. It is claimed that complainant is not consumer within meaning of Section 2 (1) (d) of the Consumer Protection Act. Moreover, it is claimed that complainant has no cause of action. OP society in pursuance of its objectives is trying to provide plots and flats to its member, on terms and conditions mentioned in the agreement, but after receipt of payments in installments as per schedule. After completion of formalities, society obtained licence of promoter and even CLU. Other necessary approvals even were obtained by society. Allotment letters of plots had been issued to the eligible members and possession even offered to eligible members. This complaint alleged to be filed by concealing material facts because complainant has not paid the total amount due towards him and nor completed the other requisite formalities. An allottee of plot liable to pay IDC at the fixed price of Rs.1,000/- per sq. yard. EDC was revised to Rs.3,250/-. After taking into account, the payments made to GMADA, amount of EDC and IDC comes to Rs.4,25,000/- for 100 sq. yards plot. Complainant has not paid the total amount till date and even he has not provided the proof of residential address, PAN Card and other documents. Complainant does not want to have possession of the plot due to slump in the housing market because he applied for plot for earning profit, so as to indulge in speculation. Complainant never submitted requisition for refund from the society, but he raised claim for the first time in that respect before this Forum. Before seeking refund, complainant should have surrendered his allotment to the society, so that some other member can be adjusted in his place and society does not suffer any loss. Complainant voluntarily got membership of the society and agreed to abide by rules and regulations of the society. As per Claue-17 of Memorandum of Society, matter liable to be referred to Board of Arbitrators, but complainant has concealed that fact. Even it is claimed that as per judgments of Hon’ble Apex Court of the Country, courts must not intervene in arbitral proceedings. Membership taken by wife of complainant and the amounts paid are matter of record. Other averments of the complaint denied.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-6 and thereafter closed evidence. None turned up for OPs and nor any evidence produced despite imposition of cost of Rs.500/- and as such OPs were proceeded against ex-parte vide orders dated 28.03.2018.
4. Written arguments not submitted. Oral arguments heard and record gone through.
5. From the contents of complaint and written statement as well as affidavit Ex.CW-1/1, it is made out that Manjit Kaur wife of complainant applied for membership of OP No.1 society by filing application Ex.C-1 and thereafter payments of Rs.9,40,000/- through receipt Ex.C-3, but of Rs.2,50,000/- through receipt Ex.C-5 were made by present complainant Sukhbir Singh. On receipt Ex.C-3, it is mentioned that Plot is allotted to complainant who deposited amount of Rs.9,40,000/-, after transfer of the plot to complainant. So certainly complainant on account of making of payment of Rs.11,90,000/- became entitled to the allotted plot. It is on account of this that plot agreement Ex.C-6 was executed by OP No.2 as President of OP No.1 society in favour of present complainant. In this agreement Ex.C-6 itself it is mentioned that plot measuring 100 sq. yards in Sector 110-111-112 of Mohali allotted to complainant on basic land price of Rs.10,000/- per sq. yard. Allotment of plot was to take place on draw of lots as per Clause-5 of Ex.C-6. Clause-6 of Ex.C-6 provides that allottee member will pay the preferential location charges for corner plot, facing park etc. Further as per Clause-7 and 8 of Ex.C-6, the allottee member will pay the EDC, change of land use charges and other expenses incurred by the society for getting sanctions from Govt./authorities concerned. Even IDC charges liable to be paid by members of the society. In view of these clauses 6 to 8 of Ex.C-6, it is obvious that complainant as allottee of the plot besides paying the land cost of Rs.10.00 lakhs for 100 sq. yards of plot also is liable to pay EDC, change of land use charges and IDC charges. So if demand for these charges put forth from complainant or the previous allottee Manjit Kaur through letter Ex.C-2, then the same demand is in accordance with terms and conditions of the agreement Ex.C-6.
6. After going through Ex.C-2, it is made out that for the plot allotted to complainant, an amount of Rs.1,12,500/- payable as EDC charges, but Rs.1,50,000/- on account of IDC charges. So the amount of Rs.2,62,500/- more payable in addition to land cost of Rs.10.00 lakhs. However, complainant has paid Rs.11,90,000/- and as such virtually full amount required to be paid by complainant as per terms of agreement Ex.C-6 not paid by him.
7. Condition No.4 of Ex.C-3 and Ex.C-5 each provide that physical possession of the plot will be handed over to complainant not later than three years of registration/requisition. Registration of complainant took place prior to 08.04.2016, when amount of Rs.9,40,000/- paid by him through receipt Ex.C-3. So possession of plot was to be handed over as per this Clause-4 of Ex.C-3 and Ex.C-5 within three years from the date of registration. However, this complaint has been filed for seeking refund of the paid amount of Rs.11,90,000/- without issuing of any notice. Refund of paid amount permissible as per Clause-3 of Ex.C-3 and Ex.C-5 each. This Clause-3 of Ex.C-3 and Ex.C-5 provide that if applicant does not want to continue even after paying some installments, then he will be refunded the entire amount with interest @ 8% per annum after three years from the date of registration. No notice for seeking refund ever sent to OPs by complainant, but this complaint straightway filed on 01.06.2017 for seeking refund of the paid amount and as such entitlement of complainant for interest will be with effect from the date of filing of complaint namely 01.06.2017 till payment.
8. Clause-12 of Ex.C-6 provides that in case timely payment of installments of basic price, EDC and additional charges pertaining to plot not made as per terms of the allotment, then penal interest @ 18% will be payable by the allottee member. If such rate of interest can be claimed by OP society in the event of failure of payment of due installments in time, then it will be unreasonable, if OPs made to refund the received amount with interest @ 8% per annum by invoking Clause-3 of Ex.C-3 and Ex.C-5. Development activity not carried on the spot by OPs and even construction has not been started on the spot as per case of complainant put forth in the complaint and projected through the submitted affidavit Ex.CW-1/1 and as such fault lays with OPs in not delivering the possession of plot in time. Being so, complainant entitled for refund of the paid amount with interest @ 12% per annum from the date of filing of complaint namely 01.06.2017 till payment. As due to non carrying of any activity of development or construction on the spot, complainant apprehends that huge amount deposited by him may not be usurped by OPs and as such certainly complainant suffered mental harassment and agony and stood dragged to this litigation on account of which he is entitled for compensation for mental agony and harassment and even to litigation expenses, but of reasonable amount.
9. As plot agreement Ex.C-6 signed by President i.e. OP No.2 on behalf of OP No.1 society and as such OP No.2 being incharge of affairs of OP No.1 society cannot shirk from liability by claiming that he is not liable for refund of the amounts received from complainant.
10. As a sequel of above discussion, complaint allowed with directions to OPs to refund the received amount of Rs.11,90,000/- with interest @ 12% per annum with effect from the date of filing of complaint namely 01.06.2017 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 OPs, whose liability is held 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
April 05, 2018.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
