BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.255 of 2015
Date of institution: 01.06.2015
Date of Decision: 06.01.2016
Rajesh Kaul son of J.L. Kaul, resident of House No.1261, Sector 37, Faridabad (Haryana), presently residing at House No.5319-B, Sector 38 (West), Chandigarh through his General Power of Attorney Shri Rajiv Dhar son of Shri R.N. Dhar, resident of House No.5319-B, Sector 38 (West), Chandigarh.
……..Complainant
Versus
M/s. Sky Lark Urbana Development Pvt. Ltd., Shop No.1-4, Commercial Complex, Sky Lark Enclave, Kharar-Banur Highway, Sector 115, P.O. Landran, Mohali 140307.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Vivek Bhanot, counsel for the complainant.
Opposite Party ex-parte.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) refund him Rs.3,80,000/- alongwith interest @ 12% per annum.
(b) pay him compensation of Rs.2,00,000/- for pain, harassment and mental agony.
(c) pay him Rs.33,000/- as costs of litigation.
The complainant has filed the present complaint through Rajiv Dhar, his General Power of Attorney. As per the complainant, on coming to know that the OP had floated a scheme of Skylark Enclave-II (Eco Homes) in Sector 115, Mohali, he visited the office of the OP where representative of the OP allured the complainant by speaking very high of the scheme. It was also promised that possession of the flat would be delivered within 30 months from the date of booking. It was also informed that the Skylark Enclave-II project was divided in 5 parts. The complainant booked plot No.5431 in Venice Floors measuring 225 sq. yards on the first floor in Skylark Enclave-II, Sector 115, Mohali for a total consideration of Rs.38.00 lacs. At the time of booking the complainant paid a total amount of Rs.3.80 lacs i.e. Rs.1,000/- in cash and Rs.3.79 lacs through cheque No.774445 dated 18.02.2012 for which the receipts dated 07.02.2012 and 06.03.2012 were issued by the OP. The OP also assured that the construction would start within 2/3 months from the date of booking. The complainant had been making enquiries about the start of construction but no satisfactory reply was ever given by the OP. Ultimately the complainant requested the OP for refund of Rs.3,80,000/- deposited by him. Accordingly, the OP issued three cheques bearing No.506200 dated 15.04.2014 for Rs.1,30,000/-, 506196 dated 15.05.2014 for Rs.1,25,000/- and 506201 dated 15.06.2014 for Rs.1,25,000/- with the assurance that these would be honoured on presentation. The complainant presented the aforesaid cheques for encashment on 26.07.2014 but these were returned dishonoured vide memo dated 30.07.2014 with the remarks ‘exceeds arrangement’. The complainant then got issued legal notice dated 16.08.2014 by calling upon the OP to make the payment. The MD of the OP refused to receive the notice, however, it was received by Mr. Pardeep, an official of the OP. The complainant also filed a complaint under Section 138 of the Negotiable Instruments Act which is pending in the court of Judicial Magistrate Ist Class, Mohali. Thus, the OP has indulged in unfair trade practice and rendered deficient service. With these allegations, the complainant has filed the present complaint.
2. As per the print out taken from the site of India Post, registered notice sent to the OP was delivered on it on 29.06.2016. However, none appeared for it and accordingly, the OP was proceeded against ex-parte vide order dated 28.07.2015.
3. Evidence of the complainant consist affidavit of Shri Rajiv Dhar, its GPA Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-17.
4. We have heard learned counsel for the complainant and have also gone through the written arguments submitted by him.
5. The complainant has booked plot No.5431 measuring 225 sq. yards at the basic sale consideration of Rs.38.00 lacs with the OPs and paid a sum of Rs.3.80 lacs upto 06.03.2012. Since the OP has failed to raise the development of the area, therefore, the complainant approached the OP and requested refund of the deposited amount. Accordingly, the OP issued three cheques bearing No.506200 dated 15.04.2014 for Rs.1,30,000/-, 506196 dated 15.05.2014 for Rs.1,25,000/- and 506201 dated 15.06.2014 for Rs.1,25,000/- with the assurance that these would be honoured on presentation. The complainant presented the aforesaid cheques for encashment on 26.07.2014 but these were returned dishonoured vide memo dated 30.07.2014 with the remarks ‘exceeds arrangement’. The OP was issued the legal notice which was received by the official of the OP namely Shri Pardeep Kumar. Since the OP failed to issue the fresh cheque in view of the dishonoured cheque, therefore, the complaint has filed complaint under Section 138 of the N.I. Act which is pending in the court of JMIC, Mohali. The complainant has filed the present complaint alleging unfair trade practice and deficiency in service on the part of the OP as it has issued deliberately the cheque knowing fully well that these would not be honoured. Thus, the act of the OP has caused him mental agony and harassment etc.
6. The complainant has proved on record Ex.C-5 to C-8 (colly) three cheques bearing No.506200 dated 15.04.2014 for Rs.1,30,000/-, 506196 dated 15.05.2014 for Rs.1,25,000/- and 506201 dated 15.06.2014 for Rs.1,25,000/- having been issued by the OP, and upon presentation having been dishonoured by the bank on the ground ‘exceeds arrangements’. The complainant has not produced any document showing pendency of the complaint under Section 138 of the Negotiable Act before the court of JMIC, Mohali.
7. In fact it was the duty of the drawee of the cheque i.e. the OP to ensure sufficient funds in its bank account at the time of issuance of the disputed cheques and the OP has failed to discharge its obligation and on presentation of cheque, the same having been returned by the banker as per return memo with the remarks exceeds arrangement Ex.C-5 to C-8 (colly). The act of the OP in issuing the disputed cheques knowing fully well that the cheques would not be honoured by the banker due to exceeding limit, is an act of unfair trade practice and deficiency in service. Due to the acts of the OP the complainant has been deprived of the use and benefits its valuable property of Rs.3,80,000/- causing him financial loss and mental agony and the complainant has proved the acts of omission of the OP.
8. Thus on the basis of material placed before us the complainant has proved his case of deficiency in service and unfair trade practice on the part of the OP and as per the judgment of Hon’ble National Commission in New India Assurance Co. Ltd. vs. M/s. Kamboj Ultra Sound & Diagnostic Pvt. Ltd., 2014(4) CLT 33 the complainant is entitled to refund of the deposited amount alongwith interest and compensation for harassment and mental agony.
9. Hence the complaint is allowed against OP with the following direction:
(a) to refund to the complainant Rs.3,80,000/- (Rs. Three lacs eighty thousand only) with interest thereon @ 12% per annum on Rs.1,000/- w.e.f. 07.02.2012 and on Rs.3,79,000/- w.e.f. 06.03.2012 till actual payment
(b) to pay to the complainant lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment 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.
January 06, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
