Chandigarh

DF-I

CC/321/2020

Pyare Lal Sinduria - Complainant(s)

Versus

The Punjab State Federation of Cooperative House Building Society Ltd. - Opp.Party(s)

In Person

13 Jul 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/321/2020
Date of Institution	:	21/08/2020
Date of Decision	:	13/07/2023

 

Pyare Lal Sinduria, aged about 71 years son of Late Sh.Punnu Ram, resident of House No.1372, Sector 68, SAS Nagar-Mohali.

… Complainant

V E R S U S

The Punjab State Federation of Cooperative House Building Society Ltd. through its Managing Director, SCO No.150-151, Sector 34-A, Chandigarh.

… Opposite Party

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR	MEMBER

 

                                                

ARGUED BY	:	Complainant in person.
	:	Smt.Vertika H.Singh, Counsel for OP.

 

Per Surjeet kaur, Member

1.      Averments are that the complainant had applied to OP for allotment of built-up house in general category-I and made initial payment of Rs.1,01,000/- against application form which is annexed as Annexure C-1. The complainant was allotted a flat allotment letter dated 22.06.2009 (Annexure C-2). Thereafter he continued to make payment in installments as per schedule and paid a total sum of Rs.12.11 lakhs to the OP. The photocopies of the receipts issued by the OP are annexed as Annexure C-4 to C-13. However, the OP without any justification increased the price by 62% and entire amount was asked to be paid in lumpsum at the time of possession which was arbitrary and against the principles of natural justice and fair play. It is also submitted that the possession of the flat was to be given by the OP on 01.12.2011. The increase was more than 62% of the original price which was beyond the means and capacity of the complainant. Eventually, the Complainant requested the OP to refund deposited amount, but to no avail. The complainant sent a request to the OP (Annexure C-15-A). It is deficiency in the service of the OP by not giving possession for over three years. The OP has not only returned deposited money alongwith interest and mental harassment but have also cancelled the allotment of flat. Alleging that the aforesaid act amount to deficiency in service and unfair trade practice on the part of the OP, the complainant filed the instant complaint.
2.     OP contested the consumer complaint, filed its written reply and stated that the present complaint is barred by limitation. The complainant had been offered the flat in question vide OP-1 whereby the complainant was requested to take the possession of the said flat by 15.02.2015 positively. However, the complainant failed to take the possession of the same till date. The complainant had deliberately not taken the possession as the complainant did not have adequate funds for making the balance payment. Even the request for the refund of the deposited amount was made by the complainant only on 24.07.2018 that was 4 years after the OP had already offered the possession. A copy of the letter is annexed as Annexure OP-1. It is further submitted that the complainant after making the payment of 12.11 lakhs towards the sale consideration of the flat, arbitrarily stopped making further payments as demanded vide Annexure OP-1. Rather the complainant was time and again given extension for making further payments rather vide letter dated 19.11.2015 the OP had categorically intimated the complainant that in case if he fails to take the possession of the said flat till 15.12.2015 then in that eventuality the allotment of the said flat shall be cancelled and the entire amount deposited against the said flat shall stand forfeited as per the terms and conditions of the brochure as well as the allotment letter. A copy of the letter dated 19.11.2015 is annexed as Annexure OP-5. Denying all other allegations made in the complaint a prayer for dismissal of the complaint has been made.
3.     Rejoinder was filed and averments made in the consumer complaint were reiterated.
4.     Parties led evidence by way of affidavits and documents.
5.     Alongwith the complaint an application for condonation of delay if any has been filed by the complainant. We have gone through the application and the record. For the reasons mentioned in the application, the delay if any in filing the complaint is condoned.  Accordingly, the complaint is admitted.
6.     The sole grouse of the complainant through present complaint is that the OP without any justification increased the price of the flat in question by 62% and the entire amount was asked to be paid in lumpsum at the time of giving possession, till date the possession has not been given to the complainant. Hence, vide letter Annexure C-15, the complainant filed an application to the OP for refund on 24.07.2018. Neither the OP has handed over the possession, nor the refund despite of the various requests. Hence, is the present complaint.
7.     The stand taken by the OP is that the possession letter was given to the complainant, as per Annexure OP-1 at page No.27 of the written statement of OP, it was the complainant only who did not come forward to pay the remaining amount and as per terms and conditions this deposited amount is to be forfeited.
8.     After going through the evidence on record, it is abundantly clear that the amount of Rs.12.11 lakhs was paid by the complainant from his hard-earned money to the OP for the purpose of buying the ready house. The complainant started paying since year 2009. It has been alleged by the complainant that the possession was to be handed over in the year 2011. But OP increased the price of the property in question without any reason or explanation that too after the expiry of the date of possession.
9.     In this complaint, the complainant is seeking refund of amount paid with interest etc., stating that when possession of the unit was offered with delay, there was more than 60% of increase in the price thereof, and it was not possible for him to make the said increased payment. To support above said contention, reliance is kept upon the judgment passed by Hon’ble National Commission in First Appeal No.999 of 2015 titled as Satish Kumar Vs. Managing Director, Housefed, decided on 14.11.2017, qua this very project, which is in contention before this Commission. In that case also, it was noted by Hon’ble National Commission that on account of huge increase to the extent of more than 60% in price of the flat, it may not be possible for the appellant/complainant therein, to make the remaining payment. After discussing the facts and law on the subject, which are almost identical in the present case also, Hon’ble National Commission observed as under:-

         “ I find force in the arguments of the learned counsel of the appellant that the first consumer complaint filed before the District Forum was in respect of the compensation for delay in possession and as there was no prayer in this complaint for refund of the amount paid and as the circumstances changed, the complainant decided to get the refund of the amount paid to the OP because the cost of the flat was increased inordinately by 62% and the possession was also not offered within the time promised so the second complaint was filed. It is true that in the allotment letter, only the tentative price of the flat was mentioned. It is expected that the final price would be somewhere near the tentative price and even may increase by 10-20%, but the price has increased by 62%. Every customer has his capacity to pay and in this case the complainant had offered to purchase a flat with tentative price of Rs.20.18 lakhs. He might be arranging this amount, but if he is told that the final price is 62% more than the original price, then, his capacity to pay is definitely affected. As the possession was also not given in time, the OP is clearly deficient in terms of not offering the possession in time. Though the OP has relied upon several judgments wherein it has been held that pricing is not a subject matter of consumer dispute and increase in price cannot make the builder deficient, I find that the complainant is not alleging any deficiency to the OP for increase in price of the flat, however, he is only complaining that as the price has been   increased beyond his capacity to pay and that the possession has also not been offered in time, he is seeking refund. I do not find any illegality in this demand.  The clause 11 of the allotment letter states that if the possession is not taken by the last date of offer, holding charges will be levied and finally allotment will be cancelled after forfeiting the money deposited.  This clause would be applicable when the possession is handed over in time which is not the case in the present matter. The OP has itself admitted that there has been delay in the implementation of the project due to several reasons.

    10.     It is true that the tentative price was given in the allotment letter and final price was to be given at the time of offer of possession. Considering from the point of view of consumer, if the final price is told to be 62% higher than the tentative price, then what a consumer can do except to withdraw from the project if it is beyond his means to pay the increased price and pursue for the refund.  In my opinion, it is appropriate to allow the refund of the deposited amount with OP.  Moreover, the Consumer Protection Act, 1986 states that it is an Act to provide for better protection of the interests of the consumers. Thus, if the arguments of the OP are accepted, then the complainant is neither entitled to refund nor he will be able to get the possession of the flat as he will not be able to pay for the increased price of the flat because the price of the flat has increased to a level which is beyond his capacity to pay. Obviously, interest of the consumer is to be protected under the Consumer Protection Act, 1986.”

10.     Admittedly, there has been a delay in delivery of possession of the unit. The opposite party cannot evade its liability, by not mentioning specific date in the Allotment Letter/Agreement, for delivery of possession of the unit, as such, time is not to be considered as essence of the contract. Non-mentioning of exact date of delivery of possession of the unit(s) in the allotment letter/Agreement, is an unfair trade practice on the part of the OP. In our view OP is bound to mention the exact/specific date of delivery of possession of the unit(s) to the allottees/purchasers thereof.  It was so said by the Hon`ble National Commission, in Rajeev Nohwar & Anr. V/S Sahajanand Hi Tech Construction Pvt Ltd, 2016 (2) CPR 769. Relevant portion of the said case reads thus:-

    “Merely making endeavour to deliver possession by a particular date will also not meet the requirement of law and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with the flat buyer”.

11.     We feel, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in 2014 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar   MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

    “I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

         Thus, in view of principle of law laid down in the aforesaid cases, it is held that even if the said alleged offer made was genuine, yet the complainant was not obliged to accept the same, as the same was made after a delay.  In view of above, it is held that since there was a material violation on the part of the opposite party, as explained above, the complainant was at liberty to seek refund of the amount deposited, by way of filing the instant complaint.

12.     It is to be further seen, as to whether, interest, on the amount refunded, can be granted in favour of the complainant. It is not in dispute that an amount of Rs.12,11,000/-, was paid by the complainant towards price of the said unit. The said amount has been used by the opposite party, for its own benefit.  It is well settled law that whenever money has been received by a party and when its refund is ordered, the right to get interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it. It was also so said by the Hon`ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). In view of above, the complainant is certainly entitled to get refund of the amount deposited by him, to the tune of Rs.12,11,000/- alongwith interest @9% p.a. [as was granted by Hon’ble National Commission under similar circumstances in Satish Kumar case (supra)], from the respective dates of deposits till realization.
13.     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OP is directed as under :-

1. To refund amount of Rs.12.11 lakhs to the complainant alongwith interest @ 9% per annum from the respective date of deposits till realization.
2. to pay an amount of ₹50,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000 to the complainant as costs of litigation.

14.     This order be complied with by the OP within thirty days from the date of receipt of its certified copy, failing which, it shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
15.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

			Sd/-
13/07/2023			[Pawanjit Singh]
Ls			President
			Sd/-
			[Surjeet Kaur]
			Member