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

Consumer Complaint No.507 of 2016

                                             Date of institution:  26.08.2016

                                             Date of decision   :  04.04.2018

Gurpreet Singh son of Late Sh. Sital Singh, resident of # 2407, Ground Floor, Mundi Complex, Sector 70, SAS Nagar, Mohali.

…….Complainant

Versus

1.     The Sky Rock City Cooperative House Building Society, SCO No.26, First Floor, Phase-II, SAS Nagar, Mohali through its President.

Alternate Address: Sky Rock City Cooperative House Building Society, Banur Road, Backside CGC College, Sector 111-112, Landran.

2.     The Sky Rock City Welfare Society, SCO 672, Sector 70, 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 Sushil Saini, counsel for the complainant.

                OPs Ex-parte.

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

Order

                OP No.1 a Cooperative House Building Society enrolled complainant as member on payment of registration fee of Rs.10,000/- on 10.11.2011. Complainant was allotted plot measuring 150 sq. yards in Sky Rock City Welfare Society in Sector 111-112, SAS Nagar @ Rs.11,000/- per sq. yard. The amount was to be paid in installments as per schedule. As per condition No.5 of the schedule of payment, possession of the plot was to be handed over within two years of registration. Provisional allotment letter dated 12.07.2013 was issued in favour of complainant. Though possession of the plot was to be handed over within 36 months, but even after expiry of the fixed date of 12.07.2016, possession has not been handed over, despite the fact that complainant has paid total amount of Rs.16,07,500/- to OPs on different dates through receipts issued by OPs. Legal notice dated 01.08.2016 was served on OPs, but no reply of the same received. Owing to non delivery of possession within stipulated time, complainant suffered lot of mental tension, agony and harassment and as such by pleading deficiency in service on part of OPs, prayer made for directing OPs to handover the possession or in the alternative to refund the entire received amount of Rs.16,07,500/- with interest @ 18% per annum from the due date of  giving possession till date of actual possession. Compensation for mental harassment and agony of Rs.1.50 lakhs and litigation expenses of Rs.50,000/- more claimed.

2.             OPs filed reply by pleading inter alia as complainant has not approached this Forum with clean hands; complaint filed by abusing process of law; complainant has no locus standi. It is claimed that in the quoted decisions in the written statement, it has been held that members of society like complainant can ask for refund of the paid amount with interest @ 8% per annum after expiry period of three years from the date of requisition. In view of this, it is claimed that present complaint is premature. Complainant is bound by terms and conditions of the contract agreement. As per Clause-4 of terms and conditions, if an allottee does not want to continue, even after paying some installments, then the entire amount to  be refunded with interest, but after expiry of period of three years from the date of requisition. Requisition for refund submitted by complainant through application dated 29.01.2015 and as such complaint alleged to be premature. Further as per licence issued by GMADA authorities, possession to be handed over within three years period i.e. on or before 05.05.2017 and as such complaint alleged to be not maintainable. OP society is running on, “no profit, no loss basis” for rendering services to its members by way of allotment of plots after developing the same. Certificate of registration as promoter in favour of OPs has been granted by GMADA authorities and even CLU applied by OP society on 14.09.2011. OPs even applied for passing of lay out plan with GMADA authorities and the same was approved by way of grant of same in favour of society on 09.01.2012. NOC with respect to 25 acres of land of society was granted by Forest Department, Pollution Control Board, Electricity Board, Indian Air Force, Municipal Counsel Kharar etc. Letter of intent dated 23.09.2013 was issued by GMADA for authorizing OPs to set up a residential colony in village Behrampur, Sector 111-112 of SAS Nagar, Mohali. It is claimed that complainant has not approached this Forum with clean hands and the complaint has been filed for abusing process of law. Memorandum of society is also part and parcel of the documents. As per Clause-17 of Memorandum of Society, present matter liable to be adjudicated by Board of Arbitrators. Complainant is not consumer of OPs. It is claimed that complainant tried to play fraud because he has not placed on record copy of Annexure C-3 which is signed by him. Other averments of the complaint denied by praying for dismissal of the complaint.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-7 and thereafter closed evidence.  Thereafter none appeared for OPs and nor any evidence produced despite grant of sufficient opportunities and as such evidence of OPs was closed vide orders dated 04.12.2017. Even thereafter none appeared for OPs and as such OPs were proceeded against ex-parte.

4.             Written arguments submitted by complainant. Oral arguments heard and record gone through.

5.             From the pleadings of the parties as well as from the contents of affidavit Ex.CW-1/1 and receipt Ex.C-1 alongwith application form Ex.C-2, it is made out that complainant became member of OP No.1 society on payment of membership fee of Rs.10,000/-.  It was after becoming of complainant as member of society that he deposited amount of Rs.16,07,500/- in all through receipts on different dates. Copies of those receipts are produced on record as Ex.C-6 and other un-exhibited receipts. After going through all these receipts, it is made out that complainant paid Rs.16,07,500/- to OPs. That fact has not been specifically denied in the written statement even and as such certainly complainant able to establish that he deposited Rs.16,07,500/- including membership fee for the allotted plot No.F-135 through provisional allotment letter Ex.C-5. In view of issue of this allotment letter by OPs in favour of complainant after accepting the above referred hefty amount from him, it is obvious that OPs became service provider to complainant in respect of allotment of plot; handing over of physical possession of the same to the complainant and executing and registering sale deed in his favour. So certainly complainant is consumer of OPs.

6.             After going through Clause 4 of terms and condition in Ex.C-3 it is made out that if the allottee does not want to continue even after paying some installments, then he will be entitled for refund of the deposited amount with interest @ 8% per annum after three years from the date of requisition and as that requisition was through legal notice Ex.C-7 dated 01.08.2016 and as such the plea taken in written reply as if the complaint being filed on 26.08.2016 is pre mature. However, that plea is not tenable because it is the persistent case of complainant that OPs have not handed over possession and nor were in a position to handover possession within stipulated period and that is why refund of the amount sought. Through notice Ex.C-7 possession of the plot was sought with alternative relief of refund of money with interest @ 18% per annum. So virtually through notice Ex.C-7, complainant expressed desire to get possession of the plot in the first instance, but sought refund of the amount in the alternate only.

7.             After going through Clause-13 of provisional allotment letter Ex.C-5 it is made out that OP society undertook to make efforts to give possession of the apartment/plot to the members within 36 months from the date of allotment but subject to force majeure circumstances and reasons beyond control of builder. This provisional allotment letter Ex.C-5 is of date 12.07.2013 and as such possession was to be delivered by OPs to complainant by 11.07.2016. However, that possession has not been delivered and that is why this complaint filed on 26.08.2016, is not pre mature at all. It is fault of the OPs in not delivering possession within 36 months as envisaged by Clause-13 of Ex.C-5 that goaded the complainant to seek refund of the paid amount and as such taking of plea qua complaint being pre mature, virtually added to the mental agony and harassment of complainant. In view of inability of OPs to deliver possession within period stipulated by provisional allotment letter, certainly complainant entitled for refund of paid amount of Rs.16,07,500/- with interest @ 12% per annum from the date of filing of complaint namely 26.08.2016 till payment. It is so because requisition for refund for the first time sought through legal notice Ex.C-7 dated 01.08.2016 and not before that and Clause-4 of Ex.C-3 provides for refund after three years from the date of requisition. That requisition virtually made due to force majeure circumstances and as such benefit of clause-4 regarding awarding of interest @ 8% per annum stipulated through Ex.C-3 cannot be gained by OPs. In view of harassment caused by OPs to complainant in not delivering possession of the plot, complainant certainly is entitled to interest @ 12% per annum from the date of filing of complaint till payment. Even complainant entitled to compensation for mental agony and harassment and to litigation expenses, but of reasonable amount because OPs have not virtually contested this complaint after submission of written statement.

8.             As a sequel of above discussion, complaint allowed with directions to OPs to refund the received amount of Rs.16,07,500/- with interest @ 12% per annum with effect from the date of filing of complaint namely 26.08.2016 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 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 04, 2018.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member