BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.224 of 2015
Date of institution: 15.05.2015
Date of Decision: 24.02.2016
Mukesh Kumar son of Rajpal Gulia, resident of 115, GH-28, Sector-5, Mansa Devi Complex, Panchkula, Haryana.
……..Complainant
Versus
Sky Rock City Welfare Society (Regd.) SCO No.672, Sector 70, First Floor, Mohali, District SAS Nagar Mohali through its President/Authorised signatory.
………. 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 Jai Pal Singh, counsel for the complainant.
Shri Vijay Karan Sandhu, counsel for the OP.
(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) to refund to the complainant amount of Rs.8,62,250/- alongwith interest @ 12% per annum from the date of deposit till realization.
(b) to refund to the complainant amount of Rs.10,000/- paid to the OP towards membership.
(c) to pay to the complainant Rs.5,00,000/- as compensation for mental agony, harassment and humiliation.
(d) to pay to the complainant Rs.25,000/- as costs of litigation.
The complainant, after going through the pamphlets and advertisements booked one residential plot of 150 sq. yard in the project namely Sky Rock City Welfare Society at Sector 111-112 SAS Nagar and paid initial amount of Rs.10,000/- vide receipt dated 01.07.2011 in lieu of registration/membership. The OP issued share certificate bearing registration No.3226 dated 26.05.2012 to the complainant. At that time the OP informed that physical possession of the plot shall be handed over to him within two years from the date of membership/registration. It was also assured that in case the complainant does not want to continue even after paying some installments, the OP would refund the entire amount with interest after one year from the date of registration/membership. The OP had also assured that the project is approved by the appropriate authorities and all the mandatory approvals, clearances i.e. developer license, promoter license, environment clearance, change of land use, municipal clearance etc. had been issued in the name of OP/society. It was also assured that many nationalized banks are providing financial assistance to the investors who had purchased plots in the project of the OP. However, the OP failed to provide the necessary documents despite issuance of many letters by the complainant for getting the loan sanctioned from the bank. On the demand of the OP, the complainant deposited Rs.4,31,250/-, Rs.4,31,250/- on 21.09.2011 with the OP. The complainant visited the OP to know the status of the project and then the OP informed him that the project is near completion and also demanded from him the pending installments. The complainant visited the OP many times to enquire about the draw of lots of residential plots but the OP always postponed the matter on one pretext or the other. The complainant visited the site and found that not even a single brick had been laid at the construction site. The possession of the plot was to be given to the complainant within two years and the complainant has booked the plot on 01.07.2011 but till date the OP had not given him the possession inspite of issuance of letters dated 14.08.2012, 15.09.2012 and 24.03.2015 by the complainant. The complainant has come to know that the project of the OP is illegal/unapproved. Thus the complainant vide notice dated 24.03.2015 asked the OP to refund the amount deposited by him which was duly received by the OP but till date neither the amount has been refunded nor reply to the notice has been given by the OP. Thus, with these allegations the complainant has filed the present complaint.
2. The OP in the preliminary objections of the written statement has pleaded that the complainant has not come to this Forum with clean hands and has concealed material facts from the Forum. On merits, it is pleaded that the complainant had paid 1st installment at the time of booking and agreed to paid 2nd, 3rd and 4th installment at the interval of every 3 months and last installment at the time of possession. But the complainant has not deposited the full payment of 2nd installment and has not paid the subsequent installments. Thus, the physical possession of the plot can be handed over only when the complainant had paid all the installments. If the member wants to get refund of his money from the society, the same shall be refunded as per rules of the society. According to Clause 4, the amount can be refunded to the complainant with 8% interest per annum after three years from the date of requisition. The OP has got the developers license issued from GMADA. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-5.
4. Evidence of the OP consists of affidavit of Navjeet Singh its President Ex.OP-1/1 and copy of terms and conditions Ex.OP-1.
5. We have heard learned counsel for the parties and gone through the written arguments filed by them.
6. The factum of membership of the society and issuance of the share certificate No.3226 of 150 sq. yard plot in the society of the OP and deposit of payment of Rs.8,62,500/- upto 21.09.2011 against receipts by the OP are admitted facts. As per document Ex.OP-1 the terms and conditions governing allotment, Clause-5 pertains to the time frame for handing over the physical possession of the plot i.e. not later than two years of registration/requisition. The said terms and conditions are duly signed by the parties and therefore, are binding. Further as per Clause-4 of the said terms and conditions of Ex.OP-1, the applicant/complainant was free to walk out of the scheme after paying some installments and in that eventuality he was entitled to get the entire deposited amount with 8% interest after three years from the date of requisition. As per the complainant, he was willing and ready to make the balance payment but the OP was not having requisite sanctions and approvals in its favour which became a stumbling block for him to avail the financial assistance from the bank/financial institution for raising loan and making payment. Therefore, due to the acts of omission of the OP, the complainant could not arrange the loan and make payment of the subsequent installments i.e. the remaining sale consideration. Further when the complainant learnt about the status of the project, upon frequent visits to the office of the OP as well as on the site, it was found that not even a single brick was laid at the construction site and further the OP has failed to show him necessary approvals/sanctions from the competent authority to raise the construction and develop the project. The complainant has in this regard sought the refund of the deposited amount vide his legal notice dated 24.03.2015 Ex.C-5. The receipt of this document is not denied by the OP. Rather the OP took a categoric stand that as per term and condition No.4 of Ex.OP-1 the refund would be granted to the complainant after three years from the date of requisition. On the other hand, the counsel for the complainant argued that refund of the deposited amount, which he is seeking through the present complaint, is not an act of his own volition, rather he has been compelled under the circumstances created by the OP as it has not got necessary approvals and sanctions at the time of introducing him as a member of the society as well as accepting the part sale consideration and further subsequently the OP has failed to procure those sanctions and approvals from the competent authority and demanded the payment of installments. The acts of the OP, all through fell within the definition of unfair trade practice as defined under the Consumer Protection Act. The complainant has demonstrated the adoption of unfair trade practice by the OP on the basis of documents on record and placing reliance on the most recent decision of Hon’ble Punjab State Consumer Disputes Redressal Commission, in Rekha Gupta Vs. Sky Rock City Welfare Society (Regd.) in Consumer Complaint No.143 of 2015 decided on 08.02.2016.
7. One of the documents is the Memorandum of the opposite party-Society, which is registered with the Registrar of Societies. As per the rules and regulations thereof, the “Aims and Objects” are as under:-
i) To provide best possible and result oriented facilities with the view to achieve success in life by dint of all round growth and development of poor people.
ii) To impart for living for himself only, to inculcate interest for such social and moral virtues so ever to make our members responsible and worthy citizens of the country.
iii) To create good atmosphere for best of achievements through modern means and methods etc.
iv) To help the down trodden poor families by giving them job, home shelter help and other benefits.
v) To help the upcoming people by developing their personalities and self respect by own livings.
vi) To celebrate the religious days and other national festivals in create atmosphere of brotherhoodness and integrity among the people.
vii) To do all such activities which are for benefit of people living in the society.
viii) To make them responsible and independent and skilled persons so that they can earn themselves.
It cannot be made out from those “Aims and Objects” that this Society could have gone for the development of the colony. It travelled outside its “Aims and Objects”, by allotting the plots to its members and by collecting amounts from them.
8. Both the sides, with the written arguments, filed license No.LDC-18/2014. This license was obtained by the opposite party-Society from GMADA under PAPRA Act, 1995 for developing the land as residential colony. It is mentioned in this license itself that it shall get the building plans sanctioned from the concerned competent authority, i.e. Estate Officer, GMADA, before the start of construction at site. Thus, it could not have allotted the specific plots to its members, before getting layout plan sanctioned. It is now well settled that the act of allotting the plots and collecting the money from the allottees, before obtaining the requisite license, amounts to unfair trade practice. Thus, the opposite party indulged in unfair trade practice, by allotting the plot to the complainant and collecting huge amount from him, without having a license to develop the colony and without getting the site plan sanctioned from the Estate Officer, GMADA. It is well settled law as has been held by the Hon’ble National Commission in Kamal Sood Vs. DLF Universal Ltd., 2007 (2) CLT 440 that a builder/developer collecting money from the consumers without having proper and necessary sanctions in its favour from the competent authorities has indulged into unfair trade practice. The facts of the present complaint are squarely covered with the decision of the Hon’ble National Commission.
9. In these circumstances, in view of the terms and conditions proved on record Ex.C-1/Ex.OP-1, the complainant cannot be asked to wait for three years from the date of requisition for refund of the deposited amount. The complainant is entitled to refund of the total amount paid by him and duly received by the OP, alongwith interest at the rate which the OP agreed to pay. The reliance of complainant on the decision of Hon’ble Punjab State Consumer Disputes Redressal Commission, in Rekha Gupta Vs. Sky Rock City Welfare Society (Regd. (supra) has remained unrebutted by the OP. Therefore, the complainant has proved his case of unfair trade practice and compensation which he deserves on account mental agony and harassments.
10. In view of above discussion, the complaint is allowed with the following directions to the OP;
(a) to refund to the complainant amount of Rs.8,62,500/- (Rs. Eight Lacs sixty two thousand five hundred only) alongwith interest @ 8% per annum from the dates of deposit of different amounts till the date of actual payment.
(b) to pay to the complainant lump sum compensation of Rs.1,00,000/- (Rs. One lac 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.
February 24, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
