BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 204 of 2015
Date of institution: 05.05.2015
Date of Decision: 29.12.2015
Smt. Geeta Bhatia, resident of H.No.360, Sector 46-A, Chandigarh.
……..Complainant Versus
1. The Sherwood Officers Society, through its Chairman/Vice Chairman/General Secretary/Founder Members, Sherwood Estate, Landran Chunni Road, Sector 113, Mohali.
2nd Address:
The Sherwood Officers Society, Sherwood Estate through its Chairman/Vice Chairman/General Secretary/Founder Members, Opp. New Cantt, Wagha By-Pass, Amritsar.
2. Shri Praneet Bhardwaj son of Late Devinder Sahai, Chairman/ Founder Member, The Sherwood Officers Society, Sherwood Estate, Landran Chunni Road, Sector 113, Mohali.
3. Shri Parampal Singh Sidhu son of Shri Harpal Singh Sidhu, Vice Chairman/ Founder Member, The Sherwood Officers Society, Sherwood Estate, Landran Chunni Road, Sector 113, Mohali.
(Name of OP Nos.2 and 3 deleted from the array of the OPs vide order dated 15.06.2015).
4. M/s. RKM Housing Ltd. through its Chairman/Vice Chairman/President/General Secretary/Founder Members/ Authorised Signatory , SCO 1-2-3-4, Behind Chandigarh Engineering College, Sector 112, Landran, SAS Nagar, Mohali.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Shri Aseem Gupta, counsel for the complainant.
Shri Ashok Verma, counsel for OP No.1.
Shri Manpreet Singh, counsel for OP No.4.
Name of OP No.2 and 3 deleted from the array of the Ops
(Mrs. Madhu P. Singh, President)
ORDER
The complainants have filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) refund her Rs.12.11 lacs alongwith interest @ 18% per annum from the date of receipt till realisation.
(b) pay her compensation of Rs.2,00,000/- for mental harassment and agony.
(c) pay her Rs.2.00 lacs for committing unfair trade practice and deficiency in service.
(d) pay her Rs.25,000/- as litigation expenses.
The case of the complainant is that OP No.1 is a registered society. The OP Nos.2 and 3 are its founder members. The OPs issued advertisement in the newspapers for development of a Housing Society named as Sherwood Estate at Landran Chunni Road, Sector 113, Mohali and in the year 2011 invited applications for allotment of residential plots. The complainant visited the site at Mohali and the OPs induced her to invest money in their project. As per the payment schedule provided by the OPs on the date of booking i.e. on 24.06.2011 an amount of Rs.21,000/- as membership fee and Rs.2.00 lac was paid as booking of the plot. The remaining amount was to be paid in installments, till completion of the project i.e. within one and half year from the date of booking. Thereafter, the OPs allotted plot measuring 200 sq. yards @ Rs.13,800/- per sq. yard to the complainant. The total cost of the plot was Rs.27.60 lacs. As per Clause-9 of the allotment letter, the OPs assured to handover the possession within a period of one and half years from the date of booking i.e. 24.06.2011. The complainant kept on paying the amount as per the demands of the OPs. Till 14.11.2011 the complainant paid a total sum of Rs.12.11 lacs which includes membership fee of Rs.21,000/-. The OPs failed to develop the land and hand over the possession of the plot. However, the complainant received letter from the OPs informing that they were unable to obtain CLU and that the OPs held a meeting under the Chairmanship of OP No.3 and have decided to handover the project to OP No.4 and that OP No.4 would start the project and possession shall be handed over to the buyers in a short period. As the OPs have failed to handover the possession, the complainant signed the letter of consent for the MOU with OP No.4 with the understanding that the plot shall be handed over soon. But after that the complainant received revised allotment letter dated 24.11.2014 in which it was stated that the allotment shall be made within a period of 20 months from the date of issue of said letter. The complainant also came to know that GMADA has issued letter to the Punjab Govt. that OP Nos.1 to 3 in connivance with OP No.4 are grabbing the money from the public and have failed to develop the project. Under these circumstances the complainant is not interested in buying the plot and is interested in refund of the money. Thus with these allegations the complainants have filed the present complaint against the OPs.
2. OP No.1 in its reply has pleaded in the preliminary objections that this Forum does not have pecuniary jurisdiction to entertain the complaint as the value of the complaint is more than Rs.20.00 lacs. The complaint is pre mature and the complainant has not come to the Forum with clean hands. The complainant has not made the payments on due date as per schedule. On merits, it is pleaded that the complainant has not paid the installments on the stipulated dates and the complainant has violated the terms and conditions of the allotment letter as she has not made the payments as per schedule. The plot was to be handed over to the complainant within one and half year from the date of booking after all the dues have been cleared by the complainant. Due to delay in making the payments, the OP No.1 could not obtain the Change of Land Use from GMADA. The amount of Rs.21,000/- paid as membership fee is not refundable as per Clause 9 of the allotment letter. The society went in loss because of wrongful acts of its members and the fee for the CLU has been increased from Rs.1,29,00,000/- to Rs.2,40,00,000/-. The complainant vide letter dated 31.08.2014 has given consent to hand over the project to OP No.4 and also admitted that she is ready to take over the possession of plot allotted to her within 20 months from the date of signing the MOU. After taking consent from the members of the society, the project has been handed over to OP No.4 alongwith allotment letter. Thus denying any deficiency in service on its part, OP No.1 has sought dismissal of the complaint.
3. OP No.4 in its reply has pleaded that as per record the complainant agreed to the payment schedule with OP No.4. The complainant had to pay total amount of Rs.27,60,000/- plus Rs.70,000/- as EDC & IDC charges but the complainant had paid only Rs.11,90,000/- and balance amount was to be paid by the complainant by 10.12.2014. The complainant has not paid the agreed amount. OP No.1 never informed the complainant and the CLU and other necessary permissions have already been taken by the company. The complainant was only informed that the company had applied for CLU and other necessary permissions which will be obtained in near future. After taking over the project from OP No.1, OP No.4 has already applied for CLU and other necessary permissions. GMADA has issued letter to deposit the fee for CLU enhancement which will be submitted soon and CLU and other permissions will be obtained very soon. After taking over the sick project from OP No.1, OP No.4 has completed the entire record regarding membership, measurement of the land and is in position to allot the plot to its members after getting the CLU and layout plan passed. The complainants are not members with OP No.4 untill they sign MOU with it. So the complainant cannot ask OP No.4 to refund the money and there is no provision for the same which is duly mentioned in the revised allotment letter dated 24.11.2014 Clause-9 sent to the complainant which is signed and agreed by the complainant. The complainant also agreed with the payment plan sent by the OP No.4. Thus, denying any deficiency in service on its part, OP No.4 has sought dismissal of the complaint.
4. To succeed in the complaint, the complainant tendered in evidence her affidavit Ex.CW-1/1and Ex.CW-2/1 and copies of documents Ex.C-1 to C-8.
5. Evidence of OP No.1 consists of affidavit of Varinder Singh, its authorised representative Ex.OP-1/1 and copies of documents Ex.OP-1/2 to Ex.OP-1/5.
6. Evidence of OP No.4 consists of affidavit Kanwaljit Singh Ahluwalia, its MD Ex.OP-4/1 and copies of documents Ex.OP-4/2 to Ex.OP-2/14.
7. We have heard learned counsel for the parties and have also gone through written arguments filed by them.
8. Admittedly the complainant became member of OP No.1 Society on 24.06.2011 for allotment of 200 sq. Yards in the proposed Sherwood Estate, Sector 113, Mohali. The complainant had paid Rs.21,000/- as membership fee. Thereafter, the complainant was allotted 200 sq. yard plot. In the payment schedule, the price of the plot has been shown as Rs.27.60 lacs. As per the complainant till 14.11.2011 she had paid a total sum of Rs.12,11,000/- including membership fee against the agreed sale price of Rs.27.60 lacs. As per Clause-9 of the allotment letter, the possession was to be handed over to the allottee within a period of one and a half year from the date of grant of CLU after all the dues have been cleared by the allottee. Though the complainant has not disputed the change of guards of the affairs of the society from OP No.1 to 4 on as is where is basis as is evident from the letter of consent Ex.OP-1/2, the OP No.4 the present management of the society has failed to develop the project and not conceded the request of the complainant to refund the deposited amount. Thus aggrieved by the act of the OP No.4 alleging deficiency in service and unfair trade practice, has filed the present complaint.
9. OP No.1 in its reply has admitted that the CLU has not been granted in its favour at the time of receiving the deposit from the complainant. As per OP No.1 the CLU was already granted in its favour but the same could not be converted into the license because of non payment of CLU charges. Now OP No.4 will get the CLU extension by depositing the fee and the complainant is asked to contribute his share in this regard. The complainant has failed to do so. Further there is no provision of refund in the scheme agreed by the complainant. Therefore, there is no deficiency in service on its part.
10. OP No.4 has admitted having taken over the affairs of the society from OP No.1 with the consent of majority of members of the society, on as is where is basis. Thus, OP No.4 has admitted the booking of the 200 sq. yard plot by the complainant and receipt of Rs.12.11 lacs from the complainant as on 14.11.2011 by OP No.1. OP No.4 has admitted the issuance of letter of intent and CLU by GMADA in its favour and further admitted non issuance of license due to non deposit Rs.2,40,00,000/- with the GMADA authorities leading to delay in the project. Therefore, OP No.4 has denied any deficiency in service and rather taken a stand that as per MOU dated 15.07.2014 signed between OP No.1 and 4, OP No.4 is to hand over possession to the members of the society within 20 months from the date of signing of MOU.
11. The limited question in the whole controversy in the present complaint is whether the complainant is entitled to seek refund of the deposited amount from OPs particularly when the CLU and other permissions were not granted in favour of OP No.1 at the time of accepting the said deposit and further change of guards of affairs of society from OP No.1 to OP No.4 though with the consent of the complainant. Thus, the OP No.4 has stepped into the shoes of the OP No.1. OP No.4 also failed to show any sanctions/approvals in its favour till date. 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.
12. Admittedly at the time of accepting deposit of Rs.12.11 lacs as on 14.11.2011, OP No.1 was not having necessary permissions and CLU in its favour as is evident from OP No.1’s own admission in its written statement. Further the consent of the complainant regarding change of guards of OP No.1 in favour of OP No.4 has been obtained by OP No.1 as is evident from document Ex.OP-1/2. Though despite the valid consent of the complainant regarding change of guards of the affairs of the society from OP No.1 to OP.4 on as is where is basis, the OP No.4 has failed to take any further steps for development of the project leading to handing over the possession of the property in question to the complainant as per promised schedule of the original allotment letter. The complainant learnt from the RTI information vide Ex.C-8 that OP No.4 has violated the terms of PAPRA Act and the competent authority has initiated the criminal proceedings against the OP No.1. Therefore, loosing all faith in OP No.1 and 4, the complainant has filed the present complaint seeking refund of the deposited amount. Even during the course of proceedings, the OPs have failed to concede to the request of the complainant. Thus, they have indulged into an act of unfair trade practice by withholding the legal property of the complainant without providing any corresponding services and delivery of the promised possession. The complainant is entitled to receive the refund of the deposited money alongwith interest as per decision of Hon’ble Punjab state Consumer Disputes Redressal Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others, 2014(2) CLT 401. Thus, the complaint deserves to be allowed and the complainant deserves to be adequately and fairly compensated.
13. In view of above discussion, the complaint is allowed. Both OP No.1 and 4 are jointly and severally liable as under:
(a) to refund to the complainant deposited amount of Rs.12,11,000/- (Rs. Twelve lacs eleven thousand only) with interest thereon @ 12% per annum from the dates of respective deposits till actual payment.
(b) to pay to the complainant a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand 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.
December 29, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
