BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.569 of 2015

                                                 Date of institution:          23.10.2015

                                                 Date of Decision:            21.04.2016

Gagan Kakar son of Ashok Kakar, resident of House No.241, Sector 21-A, Chandigarh.

                                    ……..Complainant

                                        Versus

The Estate Officer, Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, Sahibzada Ajit Singh Nagar, Mohali (Punjab).

                                                                ………. 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:    Ms. Namita Kandhari, counsel for the complainant.

Opposite Party exparte.

(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 to the complainant remaining amount of Rs.9,25,801/- alongwith  interest @ 24% from the date of deposit till actual payment.

(b)    to pay to the complainant Rs.2,00,000/- as compensation for mental agony and harassment.

(c)    to pay to the complainant Rs.20,000/- as actual monetary expenses.

(d)    to pay to the complainant Rs.50,000/- as costs of litigation.

                The complainant, in response to the scheme of the OP for allotment of flats on draw basis in Purab Premium Apartments at Sector 88, SAS Nagar, applied for  allotment of a Type-III flat by paying Rs.6,90,000/- as earnest money vide demand draft dated 03.01.2012. The complainant was successful allottee in the draw held on 20.03.2012 vide application No.5103, Category-A, Apartment Type-III, draw serial No.1332.  Accordingly Letter of Intent (LOI) has been issued in favour of the complainant on 22.05.2012. As per the payment schedule mentioned in the LOI, the complainant deposited a sum of Rs.13,80,000/- vide Demand Draft dated 22.06.2012 being 20% price of the apartment.  It was mentioned in the LOI that possession of the apartment shall be handed over after completion of development works at site in a period of 36 months from the date of issuance of LOI and in case for any reason the OP is unable to deliver the possession, the allottee shall have the right to withdraw from the scheme and in this case, the OP shall refund the entire amount deposited by the applicant alongwith 8% interest compounded annually.  The complainant went to the site in the last week of March, 2015 and found that there was no sufficient construction at the site even after passage of 3 years from the date of issuance of LOI.  The complainant requested the OP to defer the payment of balance amount till completion; however, the staff of the OP could not give him the satisfactory answer. Accordingly the complainant  vide his letter dated 07.04.2015 requested for surrendering the plot due to deficiency in service  and unfair trade practice on the part of the OP.  Thereafter, the complainant received a sum of Rs.11,44,199/- vide cheque dated 23.07.2015 as refund amount from the OP against the total amount of Rs.20,70,000/-. The complainant got issued legal notice dated 11.08.2015 seeking refund of the balance amount, which was followed by revised legal notice dated 04.09.2015. However, despite service of legal notices the OP had failed to refund the remaining amount.   Thus, with these allegations the complainant has filed the present complaint.

2.             Notice issued to the OP was duly served but none appeared for it despite service. Accordingly, the OP was proceeded against exparte vide order dated 21.12.2015.

3.             Evidence of the complainant consists of his affidavit Ex.CW-1/1 and copies of documents Ex.C-1 to C-7.

4.             We have heard learned counsel for the complainant and have gone through the written arguments filed by him.

5.             The issue involved in the present complaint is regarding deficient refund by the OP against the agreed terms and conditions of the LOI Ex.C-2. The complainant was successful in draw of lots for allotment of Type-III residential apartments in Purab Premium Apartment in Sector-88, SAS Nagar (Mohali). The complainant paid earnest money of Rs.6,90,000/- at the time of application and subsequently paid Rs.13,80,000/- being 20% of the price of the apartment on 22.06.2012 to complete 30% of the cost of the apartment, as the tentative cost of the apartment was Rs.69.00 lacs. Thereafter, the complainant has not paid any further amount towards sale consideration either under Plan-A or Plan-B as there is nothing on record to show any payment thereafter. Thus, in all the complainant has paid a total sum of Rs.20,70,000/-. As per terms of LOI Ex.C-2 the remaining payment was to be made by the complainant either under Plan-A, 65% of the tentative price within 60 days of issuance of LOI with a rebate of 5% on balance amount payable or under Plan-B in six half yearly installments from 22.11.2012 to 22.05.2015 and the possession of the apartment was to be handed over within 36 months from the date of issuance of LOI dated 22.05.2012 Ex.C-2.  Due to some financial difficulties the complainant has surrendered the allotment of apartment  vide his request dated 07.04.2015 Ex.C-4 duly acknowledged and diarized by the OP as No.9480 dated 07.04.2015 though no office stamp is affixed on the body of Ex.C-4.  As per the complainant, the OP has considered his request and refunded an amount of Rs.11,44,199/- vide cheque dated 23.07.2015 Ex.C-5 but the said refund is deficient as per terms of LOI.

6.             After appreciating Ex.C-2 it emerges that LOI contains certain stages of seeking refund either at the initial stage as per Clause 2.1 (II) when the allottee failed to pay 20% of the agreed sale consideration within stipulated period or Clause 2.3 (II) where the allottee fails to pay the due installments and Clause 7 where the allottee refuses to accept the allotment. The case of the complainant falls under Clause 2.3 (II) which reads as below:

“Delays in payment of installments shall result in cancellation of the allotment. However, on request establishing genuine grounds, delays upto 12 months can be condoned by the Estate Officer by charging 18% interest for the period of delay. Delays beyond 12 months shall not be condoned under any circumstances and shall result in cancellation of allotment and refund of the amounts paid, after forfeiture of 10% of the amount. Possession shall not be handed over till all dues are cleared.”

7.             It is admitted fact that the complainant has paid the earnest money and the balance 20% to make the total as 30% of the  agreed sale consideration on 22.06.2012, the total amount having been paid as Rs.20,70,000/- as per terms of LOI.  Further payments either by installments or lump sums as per term 2.2 of LOI was to be made. There is nothing on record to show if any further payment was made by the complainant. Therefore, the complainant himself has admitted vide his request dated 07.04.2015 Ex.C-4 that he is unable to pay the amount due to financial incapacity and surrendered the apartment and requested the OP to do the needful. In such eventuality the OP was to deduct 10% of the deposited amount and refund the balance to the complainant. On the other hand the OP has refunded an amount of Rs.11,44,199/- vide cheque Ex.C-5 on 23.07.2015 against the deposited amount of Rs.20,70,000/-. The 10% deduction of Rs.20,70,000/- comes to Rs.2,07,000/-. Therefore, the complainant was entitled to refund of Rs.18,63,000/- and against the said sum the complainant has got only Rs.11,44,199/-. Thus, the refund being deficient by Rs.7,18,901/-. Thus, the act of the by giving deficient refund of Rs.7,18,901/- being contrary to the terms of LOI is an act of unfair trade practice. The complaint deserves to be allowed and the complainant deserves to be compensated.

8.             In view of above discussion, the complaint is allowed with the following directions to the OP:

(a)    to refund to the complainant Rs.7,18,901/ (Rs. Seven lacs eighteen thousand nine hundred one only) with interest thereon @ 9% per annum from 23.07.2015 till actual payment.

(b)    to pay to the complainant a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) towards mental agony, harassment and costs of litigation.

                Compliance of this order be made by the OP 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.                           

April 21, 2016.     

                             (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                   Member