BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.554 of 2014

                                 Date of institution:          05.09.2014

                                                 Date of Decision:            10.06.2015

1.     Vivek Sharma son of Ramesh Sharma, resident of B-217, Kendriya Vihar Society, Sector 48-B, Chandigarh.

2.     Mrs. Poonam Sharma wife of Vivek Sharma, resident of B-217, Kendriya Vihar Society, Sector 48-B, Chandigarh.

    ……..Complainants

                                        Versus

1.     Skylark Urban Development (P) Ltd., Skylark Enclave, Phase-2, Sector 115, Greater Mohali, Punjab through its owner Gurmukh Singh Rai.

2.     Chairman, Municipal Committee, Kharar, District SAS Nagar, Mohali.

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh, Member.

Mrs. R.K. Aulakh, Member.

Present:    Shri R.S. Bal, counsel for the complainants.

                OP No.1 ex-parte.

Shri Ashok Sharma, counsel for OP No.1.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainants vide application Ex.C-1 applied for independent residential floor in three storied Eco Homes, Skylard Enclave II, Sector 115 Mohali, a project of OP No.1. Alongwith application form,  the complainants paid Rs.3,89,785/-  vide  two cheques dated 09.03.2012 receipt Ex.C-2 whereof was issued by OP No.1.  Thereafter OP No.1 issued allotment letter Ex.C-7 and out of three payment plans, the complainants opted construction linked payment plan.  The complainants then deposited another amount of Rs.3,89,785/- through cheque dated 14.06.2012 vide receipt Ex.C-9. The OP No.1 did not start construction of the project till date.  As per the agreement executed between the complainant and OP No.1 the possession of the floor was to be given within 18-24 months of the date of allotment i.e. 09.03.2012. Since no construction activity is  being taken place at the project site, the complainants requested the OP No.1 vide letter dated 14.02.2014 to refund the deposited amount to which OP No.1 refused. The complainants also requested OP No.2 to take action against OP No.1 as it had issued the license to OP No.1.

                With these allegations, the complainants have sought directions to OP No.1 to refund the amount of Rs.7,60,000/-; to pay them Rs.3.00 lacs as compensation; OP No.2 to take action against OP No.1. 

2.             Registered notice for appearance on 16.10.2014 was sent to OP No.1 and the same was delivered on 20.09.2014 as per the report retrieved from India Post site.  Despite proper and effective service, none appeared on behalf of OP No.1 on the date fixed.  Therefore,  OP No.1 was proceeded against exparte vide order dated 16.10.2014.

3.             Service to OP No.2 was complete. After appearance, OP No.2 in the reply filed, by way of affidavit, has taken preliminary objections regarding maintainability of the complaint as no cause of action has accrued against OP No.2.  However, on merits, it is admitted  that OP No.2 has approved the project of OP No.1 under T.P. Scheme as per rules.  However, the final approval of the project is still pending with the concerned departments.  Till date OP No.1 has not applied the completion certificate with OP No.2. It is the duty of OP No.1 to develop the project as per terms of the sanctioned project.  Thus, denying any deficiency in service on its part, OP No.2 has sought dismissal of the complaint against it.

4.             Evidence of the complainant consists of their affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-14.

5.             Evidence of OP No.2 consists of affidavit of Sukhjinder Singh, EO Ex.OP-1/1.

6.             In view of the decision of Hon’ble Uttrakhand State Consumer Disputes Redressal Commission in case titled as Consoritum Securities Pvt. Ltd. & Ors. Vs. Smt. Anjana Tyagi,  2013(3) CLT 570 by relying upon the judgment of Hon’ble National Commission in case titled as  Mathura Mahto Mistry Vs. Bindeshwar Jha (Dr.) & another,   2008 (I) CLT 566,  OP No.1 was given three opportunities to rebut the evidence of the complainant.  However, none appeared for it to rebut the evidence.

7.             We have heard the learned counsel for the complainants and OP No.2 and gone through the written arguments filed by them.

8.             The complainants have proved the payment of Rs.7,60,000/- to OP No.1 vide Ex.C-2 & C-9 against sale consideration of the residential floor in the project floated by OP No.1. OP No.2 has admitted that the project was approved by OP No.1. However, the final approvals are still pending with the concerned departments and the OP No.1 has not even applied for completion certificate. The admission and the contentions of OP No.2 clearly prove that OP No.1 has not developed the project as yet as per terms and conditions of the sanctioned letter.  The plea of the complainants that no construction activity is being taken at the site as on date is well supported by the admission and contentions of OP No.2.

9.             Further the complainants have proved their request dated 14.02.2014 Ex.C-13 to OP No.1 for refund of the deposited amount as the letter dated 14.02.2014 Ex.C-13 has been duly acknowledged by OP No.1. Still having received and acknowledged Ex.C-13 i.e. request for refund of Rs.7,60,000/- and willful abstaining from the present proceedings by OP No.1 is, therefore, held to be an act of deficiency in service and unfair trade practice which is writ large on the part of OP No.1. The compliant, therefore, deserves to be allowed against OP No.1 and the complainants deserve to be compensated.

10.           So far OP No.2 is concerned, though it is not direct privity to the contract i.e. contract between OP No.1 and the consumer i.e. the complainants. Therefore, since the complainants have not sought any relief against OP No.2, the complaint against it is dismissed. However, we fell that OP No.2 being the licensee is also under statutory duty to work as a watchdog of the interest of the consumers which may should not be jeopardized by the acts of omission and commission violating the terms  and conditions of license issued by OP No.2. OP No.2 being the statutory authority will take care of its obligations in future.

11.           In view of above discussion, the complaint is allowed against OP No.1 with the following directions to:

(a)    refund Rs.7,60,000/-  (Rs. Seven lacs sixty thousand only) with interest thereon @ 12% per annum from the respective dates of deposit till actual realization.

(b)    pay a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for harassment, mental agony and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

June 10, 2015.    

                                                                     (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member