BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No. 23 of 2015
Date of institution: 13.01.2015
Date of Decision: 21.05.2015
Rajiv Dhar son of Shri R.N. Dhar, resident of House No.5319-B, Sector 38(West), Chandigarh.
……..Complainant
Versus
1. Skylark Urban Development Pvt. Ltd. through its Managing Director Gurmukh Singh, Skylark Enclave Phase II, Sector 115, Greater Mohali (Punjab).
2. Gurmukh Singh, Managing Director, Skylark Urban Development Pvt. Ltd. Skylark Enclave Phase II, Sector 115, Greater Mohali (Punjab).
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Complainant in person.
Opposite Parties ex-parte
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Parties (for short ‘the OPs’) to:
(a) refund him Rs.3,80,000/- alongwith interest @ 12% p.a.
(b) pay him compensation to the tune of Rs.2.00 lacs for harassment and mental agony.
(c) pay him Rs.33,000/- as litigation expenses.
The complainant has pleaded in the complaint that on coming to know that the OP had floated a scheme of Skylard Enclave-II (Eco Homes) in Sector 115, Mohali, the complainant visited the office of the OP where the officials of the OP allured him by speaking very high of the scheme. It was promised that the flat would be delivered within 30 months from the date of booking. The complainant booked flat No.5421 of 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. Rs.3.80 lacs i.e. 10% of the booking amount was paid by him to the OPs through cheques vide receipts dated 07.02.2012 and 06.03.2012. It was assured that the construction would start within 2/3 months. However, the construction work was not started within 2-3 months and the complainant had been making inquiries from the Ops but no satisfactory reply was ever given to him. The complainant feeling cheated, requested the OPs to refund the amount and the OPs issued cheque dated 21.09.2013 for Rs.3,80,000/-. On presentation the cheque was returned to the complainant by the bank being dishonoured with memo dated 24.09.2013 with the remarks ‘Exceeds arrangement. The complainant issued a legal notice dated 21.10.2013 to the OPs through registered post calling upon them to make the payment. However, the notice received back unserved. The complaint filed by the complainant under Section 138 of Negotiable Instruments Act is pending in the court of Judicial Magistrate Ist Class at Mohali. Thus the complainant has pleaded that the OPs have indulged in unfair trade practice which caused harassment and mental agony to the complainant.
2. Notices sent to the OPs through post. As per the report of India post, the notices were delivered to the OPs on 27.01.2015. However, none appeared for them and they were thus proceeded against ex-parte vide order dated 20.02.2015.
3. Evidence of the complainant consists of his affidavits Ex.CW-1/1 & Ex.CW-1/2 and copies of documents Ex.C-1 to C-16.
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 OPs was given three opportunities to rebut the evidence of the complainant. However, none appeared for them to rebut the evidence.
5. We have heard the complainant and gone through the written arguments filed by him.
6. Admittedly the complainant has booked a flat with the OP and paid part consideration of Rs.3,80,000/- to the OPs vide receipts Ex.C-3 and C-4. Since there was no development by the OPs and dispute to this effect has arisen between the parties and with much persuasion the complainant made the OPs agree to refund the deposited amount. Finally the OPs have issued cheque dated 21.09.2013 of Rs.3,80,000/- . However, on presentation the cheque was dishonoured by the banker of the OPs. Despite the fact that the complainant has proceeded against the OPs under section 138 of N.I. Act before the court of JMIC, Mohali, the OPs have failed to refund the agreed amount of Rs.3,80,000/-. The act of the OPs for not developing the site, issuance of the refund cheque, having been dischonoured by the banker of the OPs and further not issuance of the fresh cheque in lieu of the dishonoured cheque is an act of unfair trade practice and deficiency in service.
7. Despite proper and effective service the OPs have stayed away from the proceedings of this Forum which per se shows the deliberate and willful conduct of the OPs not to repay the deposited amount of the complainant.
8. We have perused the documents and evidence produced by the complainant and since there is no rebuttal from the side of the OPs, the complainant has been successful in proving his case of deficiency in service which is writ large in the hands of the OP. Therefore, the complaint deserves to be allowed and the complainant deserves to be compensated.
9. The complaint is thus allowed with the following directions to the OPs to:
(a) refund the deposited amount of Rs.3,80,000/- (Rs. Three lacs eighty thousand only) with interest thereon @ 12% per annum w.e.f. the dates of deposit till actual payment.
(b) pay a lump sum compensation of Rs.25,000/- (Rs.Twenty five thousand only) on account of pain, 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.
May 21, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
