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

Consumer Complaint No.621 of 2015

                                               Date of institution:  18.11.2015                                             Date of decision   :  23.08.2018

Renu Chambial aged 30 years wife of Shri Dheeraj Bhadwal, resident of House No.2053, Sector 40-C, Chandigarh.

…….Complainant

Versus

1.     Sky Rock City, SCO No.2, First Floor, Phase-II, Mohali, Punjab.

2.     The Sky Rock City Welfare Society, Mohali, SCO 672, Sector 70, IInd Floor, Mohali.

……..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 Iqbal Mohammed, counsel for complainant.

                OPs ex-parte.

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

Order

               OPs floated scheme for allotment of residential plots in Sky Rock City Cooperative House Building Society, Village Ranimajra, adjoining Omaxe Part-II, Mullanpur. Complainant booked a residential plot measuring 100 sq. yards (4 marla) @ Rs.8,800/- per sq. yard by paying advance amount of Rs.10,000/- as membership fee. 10% advance for this plot i.e. Rs.88,000/- was deposited vide receipt No.1194 dated 24.11.2011. Application form dated 01.05.2012 also submitted. Thereafter complainant changed her mind and approached the OPs for allotment of 6 marlas plot instead of 4 marlas and then on the asking of the OPs, the complainant paid Rs.44,000/- for bigger size of the plot  vide receipt dated 01.06.2012. In this way, total sum of Rs.1,42,000/- has been deposited by complainant for allotment of 6 marlas plot, on assurance that allotment will be done at earliest and even possession will be handed over. Complainant visited office of OPs many times and even gave telephonic calls for ascertaining as to when possession will be handed over. Complainant kept on getting false assurances from officials of OPs. No effort has been made by OPs for handing over of possession despite wait of more than 4 years and as such by claiming that OPs adopted unfair trade practice, this complaint filed for seeking refund of the paid amount of Rs.1,42,000/- with interest @ 14% per annum. Compensation for mental harassment and agony of Rs.2.00 lakhs and litigation expenses of Rs.11,000/- more claimed. Even prayer made for directing OPs to handover physical possession of the plot to complainant after executing and registering sale deed.

2.             In joint reply submitted by OPs, it is pleaded inter alia as if complainant has not approached the Forum with clean hands; complaint filed for abusing process of law, so as to blackmail OPs; complainant has no locus standi; terms and conditions of the agreement have not been disclosed, despite the fact that agreement was signed by parties and the terms thereof binding on the parties. Core issue pertains to refund of amount deposited by member of OP society. That issue alleged to be already decided in favour of OPs by Principal Bench of Hon’ble State Consumer Disputes Redressal Commission Punjab vide orders dated 03.08.2015 passed in First Appeal No.147 of 2015 titled as Pankaj Mahajan Vs. The Sky Rock City Welfare Society. It is claimed that through that judgment it has been found as if OP Society liable to pay interest @ 8% per annum after expiry of period of three years from the date of submission of request for refund, as per Clause-4 of terms and conditions of the agreement. Revision Petition No.3049 of 2015 filed against those orders before Hon’ble National Consumer Disputes Redressal Commission, New Delhi was dismissed as withdrawn after sufferance of statement by counsel for present OPs to the effect that efforts will be made to make entire payment alongwith 8% interest from the date of deposit immediately after 20.12.2016. So refund as per terms and conditions of the agreement permissible after expiry of three years from the date of submission of written request by the allottee. As that request alleged to be made before expiry of said period of three years, that is before 20.12.2016 and as such complaint alleged to be pre-mature.  Even in case of M/s. Sky Rock City Welfare Society Vs. Kanta Devi bearing F.A. No.985 decided on 15.09.2016 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, entitlement for refund with interest @ 8% per annum after three years from the date of requisition is held. Request for refund in this case submitted on 21.08.2015, but proof regarding submission of that request has not been adduced. Complainant has not obtained NOC from the society and nor he adhered to the terms and conditions of the agreement. Even EDC and IDC charges payable as per requisitions received from GMADA, not deposited by complainant.  As per letter dated 06.05.2014 received from GMADA, entire construction work has to be completed on or before 05.05.2017. In view of this also, complaint alleged to be premature. OP Society is registered under the Societies Registration Act with Registrar of Societies, SAS Nagar. Aim and object of the society is to provide residential accommodation to the poor persons on “no profit no loss basis”. OPs applied for Change of Land Use, on which GMADA authorities granted license on 14.09.2011. CLU payment charges alongwith other fee have been deposited with GMADA from time to time. Application for passing of lay out plan with GMADA authorities even was submitted and thereafter No Objection Certificate with regard to 25 acres of land was received by OPs from the Forest Department, Pollution Control Board and Electricity Board etc.  Letter of intent dated 23.09.2013 was issued by GMADA for permitting OPs to set up residential colony in question. Bank guarantee has already been submitted by OPs. Clause-17 of Memorandum of Society provides that in the event of grievance of members of society, matter liable to be referred to arbitrator and as such this Forum alleged to be having no jurisdiction. Relationship of consumer and service provider do not exist and as such complaint alleged to be not maintainable, being filed by concealing material facts and documents. It is claimed that complainant tried to play fraud. Possession of the plot has to be handed over as per terms and conditions of agreement after three years period from the date of requisition in writing and as such there is no deficiency in service on part of OPs. By denying other averments of the complaint, prayer made for dismissal of the complaint.

3.             Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-5 and thereafter his counsel closed evidence.  After closure of this evidence by counsel for complainant on 28.06.2017, none appeared for OPs on the subsequent adjourned dates and nor even cost of adjournment imposed vide orders dated 19.02.2018 deposited and as such OPs were proceeded against ex-parte vide orders dated 28.03.2018.

4.             Written arguments not submitted. Oral arguments heard and records gone through.

5.                Complainant has produced receipts Ex.C-1 and Ex.C-2 for establishing that she has deposited amount of Rs.1,42,000/- with OPs through these receipts, after submission of membership application form Ex.C-3. Schedule of payment is given in the terms and conditions annexed with Ex.C-3, as per which possession of plot to be handed over not later than two years of registration/requisition. That registration of complainant with OPs took place on 01.05.2012 on submission of application form for membership Ex.C-3 and as such virtually possession was to be delivered by 30.04.2014. However, as per case of complainant, no development activity carried on the spot and that is why refund of the paid amount sought by issue of notice Ex.C-4 dated 21.08.2015 regarding which postal receipt produced on record as Ex.C-5. So first ever requisition for refund of amount sought on 21.08.2015 and as such entitlement of complainant for interest will be with effect from this date and not before that.

6.             Clause-5 of terms and conditions attached with Ex.C-3 provides that possession of plot will be handed over physically not later than two years of registration/requisition. Request for refund of amount submitted for the first time through legal notice dated 21.08.2015 and as such it is fit and appropriate to order refund of amount deposited by complainant in toto with interest @ 12% per annum w.e.f. the date of issue of notice dated 21.08.2015 till payment. Complainant suffered lot of mental tension and agony because she remained unable to get possession within stipulated period of two years from the date of last deposit of amount of Rs.88,000/- on 21.11.2011 and as such complainant entitled to compensation for mental harassment and agony alongwith litigation expenses.

7.             OPs have not led any evidence in support of their submissions and nor the authorities cited in the written reply have been produced. Rather license to develop colony obtained on 06.05.2014 as per contents of Para No.11 of reply and as such it is obvious that amounts started to be accepted in advance that is even before obtaining requisite sanctions from GMADA. Mere getting of license of promoter on 10.08.2011 from GMADA will not enable OPs to start construction. License actually was issued in favour of OPs by GMADA in 2011 for three years and the same renewed in 2014 for three years. Certificate of registration as promoter got by OPs on 10.08.2011 as per Para No.9 of reply, but application for change of land use submitted with GMADA and thereafter letter of intent obtained on 23.09.2013 from GMADA for setting up residential colony. Even as per contents of reply, sanction from Forest & Wild Life Department obtained on 30.09.2013 and as such it is obvious that payments accepted from complainant before obtaining requisite sanctions, but by representing complainant at the time of acceptance of payments itself as if OP society is already duly registered, due to which it can start construction work. So OPs adopted unfair trade practice, due to which entitlement of complainant for interest at the rate of 12% is appropriate instead of one at rate of 8% as envisaged by Clause-4 of terms and conditions, copy of which is produced on record.

8.             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 and as such complainant is not entitled to interest until she sought refund of the paid amount. That refund sought by complainant for the first time by issuing legal notice Ex.C-4 on 21.08.2015 and as such complainant entitled to interest @ 12% per annum on the deposited amount with effect from 21.08.2015 till payment. 

9.             As a sequel of above discussion, complaint allowed with direction to OPs to refund the received amount of Rs.1,42,000/- (Rs. One Lakh Forty Two Thousand only) with interest @ 12% per annum with effect from the date of issue of legal notice Ex.C-4 dated 21.08.2015 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. 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 of the order be supplied to the parties as per rules. File be indexed and consigned to record room.

Announced

August 23, 2018

                                                                        (G.K. Dhir)                                                                President

                                                                  (Amrinder Singh Sidhu)                                                                  Member

(Mrs. Natasha Chopra)

Member