DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Indu Dhir wife of Shri Ravinder Dhir, resident of H.No. 800, Sector 4, Panchkula.

              ---Complainant

Vs

The Managing Director, Ansal Properties & Infrastructure Ltd., 1202-04, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi – 110 001.

2^nd Address:-

Ansal Properties & Infrastructure Limited, Regional Office, SCO No. 183-184, Madhya Marg, Sector 9-C, Chandigarh.

---- Opposite Party

BEFORE:    MRS.MADHU MUTNEJA               PRESIDING MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    Sh. Davinder Kumar, Counsel for Complainant.

Sh. Vaibhav Narang, Counsel for Opposite Party.

PER MADHU MUTNEJA, PRESIDING MEMBER

1.        As per the Complainant, the Opposite Party had launched a courtyard in the market for which the Complainant had made a booking on 06.09.2008. The Complainant has stated that a sum of Rs.10,71,250/- has been deposited on different dates, as per following details: -

           i.    Rs.4,50,000/- on 12.9.2008.

           ii.   Rs.3,10,625/- on 10.10.2008.

           iii.  Rs.1,20,000/- on 29.12.2008.

           iv.   Rs.1,90,625/- on 15.01.2009.

          After receiving the first payment of Rs.4,50,000/- the Opposite Party issued an allotment letter dated 06.09.2008 to the Complainant. It was also assured that the construction will be started immediately and possession would be handed over before December, 2010.

          Unfortunately, as per the Complainant, the Opposite Party had not started the construction, till December, 2010. A legal notice dated 5.3.2012 was issued to the Opposite Party for fulfillment of their commitment, but no reply was received by the Complainant. The Complainant has stated that the courtyard had been booked by her for her own personal use. The Complainant has, therefore, filed the present complaint, with a prayer that the amount of Rs.10,71,250/- deposited by her be refunded to her, along with interest and compensation. 

2.        Notice of the complaint was sent to Opposite Party seeking their version of the case.

3.        The Opposite Party in reply has taken preliminary objections that the Complainant had applied for allotment of a Shop for commercial purpose, which was allotted to her, vide allotment letter dated 06.09.2008. Hence, she is not a ‘Consumer’ as per Section 2(d) of the Consumer Protection Act, 1986, and the complaint is not maintainable.  The Opposite Party has admitted that the Complainant had paid a sum of Rs.10,71,250/- as per plan and an allotment letter was issued to her accordingly. But the Complainant failed to make payment as per the given schedule and was hence a defaulter. The Opposite Party had in fact, continuously requested the Complainant to make balance payment, but there has been no compliance from the Complainant. Hence, relying on Clause 9 of the agreement, the Opposite Party has contended that the Complainant is liable to pay interest @ 21% per annum on the delayed payment, besides the Opposite Party also has right to forfeit the earnest money in the event of irregular/ delayed payment and non-fulfillment of the terms of payment. The relevant clause is reproduced below: -

          Clause 9:-

“The time of punctual payment of installments is the essence of this contract. It shall be incumbent on the intending allottee(s) to comply with the terms of payment and other terms and condition of sale, failing which the intending allottee (s) shall have to pay interest @18% p.a. on the delayed payment and the company reserves its right to forfeit the earnest money in the event of irregular/ delay payments/ non fulfillment of terms of payment and the allotment may be cancelled at the discretion of the company.” 

Opposite Party has also stated that even as per Clause 3 and 4 of the allotment letter, they have a right to cancel the allotment in case the amount is not paid on time. They have also contended that the Shop allotted to the Complainant is ready for possession and hence, prayed for dismissal of the complaint.

          On merits, Opposite Party made similar submissions as made in the preliminary objections. It is denied that the shop is not ready for possession. Opposite Party submitted that in fact, it is the Complainant who has violated the terms and conditions of the allotment letter and has failed to make timely payment. Opposite Party has also stated that the legal notice issued by the Complainant has been duly replied on 24.3.2012, wherein it has been stated that the construction of the Courtyard is complete and it is ready for possession. However, the Complainant has not come forward to make payment. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4.        The Complainant has filed her replication to the written statement submitted by the Opposite Party, along with her affidavit, which is duly verified. The Complainant has asserted the averments of her complaint again through her replication. Along with the replication, the Complainant has placed on record Annexure R-5, which is a letter dated 7.10.2002 from the Principal, Govt. Model Sr. Sec. School, Sector 21, Chandigarh, for empanelment of teaching assignment on contract basis, to show that she is a contractual employee and does not have any other source of livelihood. As per the verbal assertions, at the time of arguments, the booked Shop was to be used for conducting teaching classes to earn livelihood. 

5.        Parties led evidence in support of their contentions.

6.        We have heard the learned counsel for the parties and have perused the record.

7.        The grievance of the Complainant is that the shop booked by her with the Opposite Party has not been handed over to her on time, due to which reason she has filed the instant complaint, with a request to refund the amount paid by her along with interest. The Opposite Party has taken the preliminary objection that the Complainant is not a consumer as the property is commercial and the Complainant is hence not a consumer in terms of Section 2(d) of the Consumer Protection Act, 1986. As per the Opposite Party, the property is ready for possession and the Complainant is not coming forward to take possession or make payment for the same. To our mind, Annexure C-5 can be taken as a proof that the Complainant had booked the property in question for conducting classes, with a view to earn her livelihood. As such, the Complainant is a consumer qua the Opposite Party. Further, it is also evident that the Complainant has not made complete payment to the Opposite Party and is a defaulter. The Complainant is now seeking refund. We do not think that the Opposite Party should have any objection in refunding the amount paid by her for the booked property. If the property is ready for possession, the Opposite Party will be able to find many buyers for the same. Non-payment or inability to pay should not be held as a ground to refuse refund. The money paid belongs to the Complainant and she does have a right to ask for refund.  

8.        We accordingly, allow the present complaint. The Opposite Party is directed to refund the amount of Rs.10,71,250/- deposited by the complainant, alongwith interest @ 9% p.a, from the respective date of deposits, till the actual date of refund. The Opposite Party will also pay Rs.7,000/- as cost of litigation.

9.        The Opposite Party is directed to comply with the above order within 45 days from the date of receipt of certified copy of this order, failing which the Opposite Party shall be liable to pay interest @ 12% p.a. instead of 9% p.a. on the deposited amounts from the respective dates of deposits, till it is actually paid, besides paying Rs.7,000/- as cost of litigation.    

10.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

10^th October, 2012.                                             

Sd/-

(MADHU MUTNEJA)

 PRESIDING MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

“Dutt”