BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.504 of 2014
Date of institution: 08.08.2014
Date of Decision: 27.05.2015
1. Sunita Jaswal wife of Harjit Singh resident of Flat No.257/2, Sector 55, Chandigarh.
2. Manjit Kaur wife of Jagdev Singh Jaswal, resident of Flat No.131/2, Sector 55, Chandigarh
……..Complainants
Versus
1. Sky Rock City Welfare Society (Regd.) SCO No.672, 1st Floor, Sector 70, Mohali through its President Navjeet Singh.
2. Navjeet Singh, President, Sky Rock City Welfare Society (Regd.) SCO No.672, 1st Floor, Sector 70, Mohali.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Ms. Rameet Bakshi, counsel for the complainants.
Shri Himanshu Kumar, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainants have filed the complaint with the following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) handover them the actual/physical possession of the plot or in the alternative to refund the whole deposited amount with interest @ 24% per annum from the date of deposit till realization.
(b) pay them Rs.2,00,000/- as damages for harassment and mental torture.
(c) pay them Rs.22,000/- as litigation expenses.
The complainants have pleaded in the complaint that allured by the publicity and sales staff of the OPs, they became members of the OP on 20.06.2011 by depositing membership fee of Rs.10,000/- vide receipt dated 20.06.2011 Ex.C-1 and membership No.2545 was allotted to them. The complainants opted for purchase of 150 sq. yards plot by paying Rs.50,000/- vide receipt dated 01.09.2011 Ex.C-3. The Ops assured that the project has been approved in January, 2011. Thereafter, the complainants had been making the payments well in time from 01.09.2011 to 10.04.2012 totalling Rs.11,91,250/-. At the time when the complainant became member of the society, the OPs assured that list regarding number of members of the society, plots to be allotted and date of draw will be released. As per condition No.5 of the terms and conditions of the payment plan, the OPs were to handover the physical possession of the plot not later than 2 years of registration. But till date the possession of the plot has not been handed over to the complainants despite repeated requests. The complainants also came to know that registration of the OPs as Promoter has been cancelled by the GMADA. The complainants have visited the site where no development work regarding basic amenities has started and the land is lying vacant. Despite this the OPs vide letter dated 01.10.2013 Ex.C-4 informed the complainant No.2 that their license has been restored and the complainants were asked to deposit Rs.3,58,750/- + 15% next installment. In response to Ex.C-4 the complainants vide letter dated 24.10.2013 Ex.C-5 sought from the Ops information regarding time of completion of infrastructure, handing over of possession, date of holding of draw etc. Till today the complainants have not received any reply from the OPs. The complainants contacted the Ops many times for handing over the possession but every time they made one excuse or the other. The complainants also issued legal notice dated 17.02.2014 Ex.C-6 to the OPs asking them to handover the possession within 15 days or refund the whole amount with interest @ 24% per annum but till date no reply has been received from the complainants. Non delivery of possession within the stipulated period or refund of the deposited amount is an act of deficiency in service and unfair trade practice on the part of the OPs.
2. Upon notice, Shri Hittan Nehra, Advocate appeared for the OPs and filed memo of appearance on 22.09.2014 and the case was adjourned to 17.10.2014 for filing power of attorney and written statement on behalf of the OPs. On 17.10.2014 only power of attorney was filed on behalf of the OPs and the complaint was adjourned to 03.11.2014 for filing written statement. Thereafter, no written statement was filed by the OPs even imposition of costs. Ultimately vide order dated 05.02.2015 the defence of the OPs was struck off.
3. Evidence of the complainants consist of their joint affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-11.
4. We have heard learned counsel for the parties and gone through their written arguments.
5. Admittedly the complainant are members of the society since 20.06.2011 vide registration certificate Ex.C-1 and have made various payments against the agreed sale consideration of the plot from 01.09.2011 to 10.04.2012 by paying a total sum of Rs.11,91,250/- vide receipts Ex.C-3 (colly). As per terms and conditions of payment to be made Ex.C-2, the possession of the plot was to be handed over to the complainants not later than two years of registration/requisition. However, the terms and conditions were subject to change any time, if required. Further the complainants were given liberty to walk out from the scheme after seeking refund of the entire amount paid with 8% interest per annum after three years from the date of requisition. The grievance of the complainants is that neither the physical possession of the plot has been handed over to them nor deposited amount has been refunded to them and further the OPs have even not got the promoters license at the time of receiving the money from the complainants. Further the OPs were not permitted to start the project as per the information revealed by the Competent Authority to the complainants under RTI Act Ex.C-7.
6. We have perused the receipts vide which the complainants have deposited various amounts as well as terms and conditions governing refund of the deposited amounts as mentioned in Ex.C-2. There is invariable change in the stand of the OPs. As per Ex.C-2 Clause-4 the refund is to be given to the complainants after three years from the date of requisition whereas Ex.C-3 receipt No.4476 clause-4 shows one year from the date of registration. Receipt No.4129 clause 4 shows after one year from the date of registration; receipt No.5864 shows three years from the date of registration; receipt No.6457 clause-3 shows after three years from the date of registration; receipt No.7649 clause-3 shows three years from the date of registration. Thus the comparative study of all the clauses shown in the receipts Ex.C-3 (Colly) and Ex.C-2 shows that the OPs themselves are not clear about the time frame and terms of refund whether it is from the date of registration or requisition or whether it is after one year or three years. The stand of the OPs in its written arguments Para 33 that no refund can be given to the complainants is ill founded as the OPs themselves ha e agreed in Ex.C-2 and Ex.CC-3 (Colly) to refund the amount to the complainants upon requisition/registration within one/three years. Therefore, non refund of the deposited and demanded amounts is an act of deficiency in service and unfair trade practice on the part of the OPs.
7. The next question for consideration is under which period i.e. one year or three years or from the date of requisition or registration the complainants are entitled to refund. In this regard, the OPs themselves have changed their stand and it is well settled law that the condition which is in the interest of the consumer is to be invoked for grant of relief. Thus, the condition i.e. date of registration is prior in time than the date of requisition and period for refund be treated as one year from the date of registration and not three years. Thus, all the amounts deposited with respective dates deserve to be refunded to the complainants after one year from their deposits. By not refunding the said deposited amounts after one year from the dates of respective deposits alongwith agreed 8% interest per annum by the OPs is an act of unfair trade practice and deficiency in service on their part.
8. Regarding not handing over the possession of the plot to the complainants, as per agreed terms of Ex.C-2 i.e. within two years, the OPs have shown their concern that they were unable to handover the possession due to some difficulty regarding grant of license as their earlier license was cancelled and it took them time to get it restored from the authorities. The license has been granted now to the OPs on 01.10.2013 Ex.C-4 and now thereafter the OPs have taken all necessary steps to develop the area and are willing and ready to handover the possession. The complainants on the other hand refuted the stand of the OPs regarding the status of development as there is no development in the complex. Therefore, the complainants have restricted their prayer for seeking refund of the amount.
9. As stated above, the complainants have proved their case of deficiency in service and unfair trade practice of non refund of the deposited amounts. Therefore, the complaint deserves to be allowed and the complainants deserve to be compensated.
10. Thus, the complaint is allowed with the following directions to the OPs to;
(a) to refund to the complainants the total amount of Rs.11,91,250/- (Rs. Eleven lacs ninety one thousand two hundred fifty only) with interest thereon @ 8% per annum after one year from the respective dates of deposits.
(b) to pay a lump sum compensation of Rs.1,50,000/- (Rs. One lac fifty thousand only) to the complainants for mental agony, harassment and costs of litigation.
Compliance of the above directions 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 27, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
