Punjab

StateCommission

A/1177/2014

Kuldeep Chand Shaunak - Complainant(s)

Versus

The Sky Rock City Co-operative House Building Society - Opp.Party(s)

Gautam Diwan

01 Oct 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1177 of 2014

 

                                                Date of Institution: 19.08.2014

                                                Date of Decision :  01.10.2015

 

Kuldeep Chand Shaunak S/o Late Sh. Surinder Nath, r/o House No. HL-233, Phase IX, SAS Nagar Mohali (Punjab)                                                                                                                                                                                                                                                                                                                                                                          …..Appellant/Complainant                        

        Versus

 

1.      The Sky Rock City Co-operative House Building Society/The Sky Rock City Welfare Society, SCO No.672, First Floor,     Sector 70, SAS Nagar (Mohali) through its President.

          2nd Address :

          The Sky Rock City Co-operative House Building Society/The Sky Rock City Welfare Society, SCO No.26, First Floor, Pase-      2, SAS Nagar (Mohali) through its President.

2.      The President, Sky Rock City Co-operative House Building     Society/The Sky Rock City Welfare Society, SCO No.672, First        Floor, Sector 70, SAS Nagar (Mohali)

          2nd Address :

          The President, The Sky Rock City Co-operative House   Building Society/The Sky Rock City Welfare Society, SCO   No.26, First Floor, Phase 2, SAS Nagar, (Mohali)

                                                                                                          … Respondent/Opposite parties

                                         

First Appeal against order dated 10.07.2014 passed by the District Consumer Disputes Redressal Forum,  SAS Nagar (Mohali)

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

               Shri. Jasbir Singh Gill, Member

 

Present:-

 

          For the appellant         :         Sh.Alok Jagga, Advocate

          For the respondents    :         Ex-parte.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), challenging order dated 10.07.2014 of District Consumer Disputes Redressal Forum Mohali, accepting the complaint of the complainant by directing the OPs to refund the amount of Rs.14,36,500/- to complainant with agreed rate of interest @ 8% per annum from the date of requisition till actual realization, as per terms of Clause 4 of Ex.C-3. The OPs were further directed to pay lump sum amount of Rs.1 lac as compensation for mental harassment. The instant appeal has been preferred by the complainant now appellant in this appeal against the same.

2.      The complainant Kuldeep Chand Shaunak has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that the complainant  booked a plot measuring 150 sq. yards with the OPs at Mohali and OPs agreed to deliver its possession to the complainant. The complainant booked a plot of 150 sq. yards and gave Rs.10,000/- as the membership fee and Rs.4,50,000/- as land cost, vide cheque no.399452 dated 07.01.2012 of Vijaya Bank and cheque no.399451 dated 07.01.2012 of Vijay Bank respectively; which were received by OPs and receipts were issued. The complainant was given 2% discount to be adjusted at the time of next installment. The complainant deposited two installments of Rs.4,14,000/- on 07.04.2012 through demand draft. The OPs demanded Rs.4,50,000/- as next installment on 20.07.2012 and further demanded Rs.1,12,500/- as external development charges from the complainant. The complainant deposited Rs.5,62,500/- against the demand of OPs on 02.08.2012, through cheque no.981600 dated 02.08.2012 of State Bank of India, cheque no.399458 dated 02.08.2012 of Vijaya Bank and Rs.40,500/- in cash. The complainant deposited third installment and external development charges with OPs and receipt was issued accordingly. The complainant was shocked when he found that OPs enrolled more members than actual number of plots. The project was not even approved by the competent authorities. Layout plan was pending before the authorities. OPs even did not possess letter of change of land, which was still pending. Number of complaints have been filed against the OPs in different courts. Number of people were protesting against the OPs. OP's promoter license was also cancelled by the authority much earlier even before enrollment of the complainant, as member. These facts established that OPs indulged in unfair trade practice. The complainant visited the office of OPs a number of time, but to no effect. On 08.05.2013, the complainant received a routine circular/letter from the side of the OPs regarding approval of project, layout plan and pendency of some formalities, which were under process. On 04.07.2013, the complainant suffered shock when he received another letter that promoter license of OPs, which was earlier cancelled and was restored on 27.05.2013 and OPs demanded next installment of Rs.3,46,500/- before 27.05.2013. It meant that before 27.05.2013, the OPs did not possess a valid license of promoter. The complainant sent a registered letter in the shape of legal notice to OPs, but no reply thereto was received. The complainant has, thus, filed the complaint against OPs directing them to refund Rs.14,36,000/-  (i.e. Rs.10,000/- + Rs.4,50,000/- +Rs.4,14,000/- + Rs.5,62,000/-)  paid by complainant to OPs and further paid the amount of Rs.50,000/- as compensation for mental harassment and compound interest @ 14% per annum, besides Rs,.10,000/- as costs of litigation.

3.      Upon notice, OPs filed written reply and contested the complaint of the complainant vehemently. It was averred therein that OPs is a registered Sky Rock City Welfare Society with Department of Industries SAS Nagar, Mohali, but the complainant has wrongly impleaded the answering OPs as Skyrock City Co-operative House Building Society and others. The sole motive of the OPs is to provide cheap houses to its members at affordable rates on 'no profit no loss basis.' It was agreed between the parties that if applicant did not want to continue even after paying some installments, he was entitled to be refunded the amount with interest @ 8% per annum after three years period of requisition. It was admitted that complainant booked one plot of 150 sq. yards by signing the documents with the OPs. It was admitted that complainant approached the OPs for refund of the deposited money. The OPs purchased the land from the funds collected by its members and any person if wanted to cancel, could do so by giving written request and deposited the amount would be returned to him after three years period, as per terms and conditions of the signed documents. The parties are bound by the terms and conditions of the documents. The complainant accepted the provisional allotment letter on 10.07.2012. Vide condition no.3, if the members wanted to cancel the membership, then 20% of the cost of the apartment/plot would stand forfeited, but the complainant never disclosed the fact to the Forum. The complaint is alleged to be misconceived and out of the purview of the Act. The complaint was alleged to be baseless. It was further averred on merits by the OPs that they never gave any assurance to complainant to deliver the possession at the end of 2012. The OPs booked the membership from the members, who would be provided the plots in the first phase. OPs controverted the other averments of the complaint and prayed for dismissal of the complaint.

4.      The complainant tendered in evidence, his affidavit Ex.CW-1/1  along with copies of documents Ex.C-1 to Ex.C-14. As against it, OPs tendered in evidence affidavit of Navjeet Singh, President of Sky Rock City Welfare Society/OPs Ex.OP-1/1 along with copies of documents Ex.OP-1 to Ex.OP-2. On conclusion of evidence and arguments, the District Forum Mohali, accepted the complaint of the complainant, vide order dated 10.07.2014, by directing the OPs to refund the amount of Rs.14,36,500/- along with interest at the agreed rate of interest @ 8% per annum from the date of requisition till actual realization,  as per terms and conditions of Clause-4 of Ex.C-3. The OPs were further directed to pay Rs.1 lac as compensation for mental harassment and costs of litigation. Dissatisfied with the order of the District Forum Mohali, the complainant now appellant has carried this appeal against the same. 5.    We have heard learned counsel for the appellant (the complainant in the complaint) in this appeal as respondents are exparte.

6.      We have examined the submissions of counsel for the appellant on the record. The sole argument raised by counsel for the appellant is that that the District Forum ignored the provisions of PAPRA Act and erred in passing the impugned order. The impugned order passed by District Forum regarding refund of the payment of Rs.14,36,500/- with agreed rate of interest @ 8% per annum from the date of requisition till actual realization, as per terms and conditions of Clause 4 of Ex.C-3 was challenged in this case by the appellant. It was further submitted that clause 4 of Ex.C-3 lays down that if applicant did not want to continue even after paying some installments, he would be refunded the entire amount paid with 8% interest per annum after three years from the date of requisition. It was submitted that this order of the District Forum to refund the deposited amount to the complainant with interest @ 8% per annum after three years from the date of requisition on the basis of Clause 4 of Ex.C-3 is unsustainable. It was argued that the District Forum failed to examine the conduct of the OPs. Receipt bearing no.3330 dated 1.08.2011, nowhere mentions it as PUDA approved, whereas in receipt dated 31.12.2011 bearing receipt no.5897 and subsequent receipt dated 16.03.2012 bearing receipt no.5762, it has been mentioned as "PUDA approved". It was argued that when the receipts were issued, no approval by PUDA had been granted to OPs of the above plots. The OPs were even not having license of developers on the date of inviting applications from general public for the membership of the society and they acted against provision of the PAPRA Act. It was argued that even the fact of lodging the FIR by criminal court Mohali has not been taken into account in this case. It was argued that on the leaf side of the payment receipts issued by OPs, the printed terms and conditions are ambiguous. The certificate of promoters of OPs was cancelled by GAMADA and by Estate Officer (Regulatory). The appellant further submitted before us that order of the District Forum be set aside to the limited extent and instead it be directed that payment be made to complainant now appellant, as per terms and conditions mentioned in leaf side of the payment receipts by the OPs.

7.      We have examined the relevant material on the record in this case. The District Forum observed that complainant is bound by the terms and conditions, duly signed by him, vide Ex.C-3, and complainant is entitled to seek the refund of the entire amount with interest after three years period from the date of requisition. The complainant has sought refund of Rs.14,36,500/-. The District Forum ordered that as per clause 4 of Ex.C-3, the complainant is entitled to seek refund the amount, which has already been deposited by the complainant i.e. Rs.14,36,500/- with agreed rate of interest @ 8% on the basis of Clause 4 of Ex.C-3. On the other hand, reliance of the OPs is on receipt Annexure A-2 to the effect that if applicant does not want to continue even after paying some installment, he/they would be refunded the entire amount with prevailing interest per annum after one year from the date of registration.

8.      We have examined the receipts no.5897 dated 31.12.2011, receipt bearing no.5762 dated 16.03.2012. In receipt no.5897 dated 31.12.2011, it is recorded that deposited amount with interest @ 8% per annum would be refunded after three years period from the date of registration. In one receipt no.3330 dated 01.08.2011, it is recorded that if the applicant does not want to continue even after paying some installment, he/they would be refunded the entire amount with prevailing interest per annum after one year from the date of registration. Now, we have to consider this point as to whether receipt no.3330 dated 01.08.2011 has constituted a new agreement between the parties in this case or not. Ex.C-3 is the terms and conditions, which govern the relationship of the parties. Clause 4 of this document lays down that if the applicant does not want to continue even after paying some installment, he/they would be refunded the entire amount with prevailing interest per annum after one year from the date of requisition. These are the basic terms and conditions of the parties. Receipt Annexure A-2 dated 01.08.2011 for Rs.10,000/- only is relied upon by the complainant. We find that this receipt Annexure A-2 no.3330 is for a very negligible amount of Rs.10,000/- only, upon which main reliance has been placed by the complainant now appellant in this case. We find that on most of the receipts, the clause pertains to refund of deposited amount after a period of three years from the date of registration with interest @ 8% per annum. The terms and conditions govern relationship between the parties contained in Ex.C-3. They have to be interpreted sensu stricto by us. We find that the terms and conditions of the agreement between the parties cannot be said to have been superseded by the above receipt. We are in agreement with the findings of the District Forum on this point and we do not find any illegality or material infirmity in the order of the District Forum, so as to take a different view therefrom in this appeal. Order of the District Forum is, thus, affirmed in this appeal.

9       As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed by upholding the order of the District Forum Mohali dated 10.07.2014 under challenge in this appeal.

10.    Arguments in this appeal were heard on 24.09.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                           (J.S GILL)

                                                                             MEMBER

 

October 1, 2015.                                                                 

(ravi)