BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.664 of 2014
Date of institution: 17.11.2014
Date of Decision: 13.03.2015
1. Lt. Col. Jaswinder Singh son of Lt. Col. Tirlochan Singh, resident of 207/2, Map Colony, Sector-A, Chandimandir, Panchkula.
2. Param Preet Kaur wife of Lt. Col. Jaswinder Singh resident of 207/2, Map Colony, Sector-A, Chandimandir, Panchkula.
……..Complainants
Versus
Skylark Urban Development Private Limited, Skylark Enclave, Phase-2, Sector 115, Greater Mohali through its Managing Director.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri A.B. Aggarwal, Member.
Present: Shri J.P.S. Ahluwalia, counsel for the complainants.
OP ex-parte.
(Mrs. Madhu P. Singh, President)
ORDER
The case of the complainants is that the Opposite Party (for short ‘the OP’) is a builder and developer of residential and commercial buildings. The OP invited applications for registration and allotment of residential flats in its project named ‘Eco Homes’ in Skylark Enclave II, Mohali. The complainants submitted application form (Ex.C-1) on 26.06.2012 for allotment of 3 BHK flat on first Floor in Block Florida measuring 1800 sq. ft. super area having basic sale price of Rs.43,50,000/-. Alongwith the application form the complainants paid Rs.1,00,000/- as earnest money which was received by the OP vide receipt dated 26.06.2012 Ex.C-2. The complainants were allotted Floor No.5413 on the first floor and they opted for construction link plan. As per clause 11 of the terms and conditions of allotment, the OP was to complete construction and offer possession within 18-23 months from the date of allotment. Thereafter an amount of Rs.7,70,000/- was paid by the complainants to the OP vide receipt dated 02.09.2012 Ex.C-3. Flat Buyer Agreement/allotment letter Ex.C-4 containing detailed terms and conditions, payment plan and details of the flat allotted, were duly signed between the parties. Even at this time the OP assured to handover the flat within scheduled time. The complainants visited the site number of times and found that no construction work has started there. The complainants when approached the OP to know about the start of construction, the OP bluntly told them that it cannot assure and commit as and when construction work would start. At this the complainants requested the OP to refund their amount of Rs.8,70,000/- with interest for which the OP has failed to take any steps. The complainants also sent a letter dated 13.10.2014 Ex.C-5 to Gurmukh Singh Rai, Director of the OP who executed buyer agreement but inspite of that the OP did not refund the amount. Thus the OP is deficient in service by not starting construction and has also resorted to unfair trade practice by not returning the amount to the complainants.
With these allegations, the complainants have sought directions to the OP refund them Rs.8,70,000/- with interest @ 18% per annum from the date of deposit till actual realization; to pay them compensation of Rs.1,00,000/- for harassment and mental agony and Rs.35,000/- as costs of litigation.
2. Notice sent to the OP was duly received by it but none appeared for it. Hence, the OP was proceeded against exparte on 29.12.2014.
3. Evidence of the complainants consists of their joint affidavit Ex.CW1/1 and copies of documents Ex C-1 to C-7.
4. 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, the OP was given three opportunities to rebut the evidence of the complainant. However, none appeared for it to rebut the evidence of the complainant.
5. We have heard learned counsel for the complainant and gone through the written arguments filed by the him.
6. It is the case of the complainants that they paid a total sum of Rs.8,70,000/- to the OP towards sale consideration of the flat. As per Clause-11 of the terms and conditions of the application/booking form, the OP was to offer possession within 18-24 months. The complainants visited the site and found no construction activity there and they vide letter dated 13.10.2014 Ex.C-5 requested the OP to refund their deposited amount which the OP has not refunded. Thus, the complainants have filed the present complaint against the OP for refund of the deposited amount with interest.
7. An ample opportunity of natural justice was given to the OP but none appeared on its behalf. This shows that the OP has deliberately not appeared before this Forum to rebut the pleadings and evidence of the complainants and, therefore, was proceeded against ex-parte. This absence on the part of the OP is nothing but an admission from its own side as has been held by the Hon’ble Kerala State Consumer Disputes Redressal Commission in K.D. Ajay Khosh Vs. M/s. Alliance Habitat, CLT 2013 (2) 389. By considering the facts, circumstances and documentary evidence adduced by the complainants alongwith their affidavit, this Forum is of the view that the act of the OP is nothing but an act of deficiency in service in accordance with the provisions of the Consumer Protection Act. Its non appearance in this Forum only shows that it has nothing to say.
8. Therefore, the complaint is allowed with the following directions to the OP to:
(a) to refund to the complainants Rs.8,70,000/- (Rs. Eight lacs seventy thousand only) with interest thereon @ 12% per annum from the dates of deposit till actual realization.
(b) to pay to the complainant a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) on account of mental agony, harassment and costs of litigation.
The OP is directed to comply with the above directions within a period of one month from the date of receipt of a certified copy of this order. Certified copies of orders be sent to the parties free of costs and thereafter the file be consigned to the record room.
Pronounced.
March 13, 2015
(Mrs. Madhu P. Singh)
President
(A.B. Aggarwal)
Member
