BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.487 of 2014

                                 Date of institution:          01.08.2014

21.08.2015

                                               Date of Decision:            28.10.2015

1.     Rahul Thakur son of Shakti Chand Thakur, H.No.575, First Floor, Phase IV, Mohali.

2.     Jyoti Thakur wife of Rahul Thakur, H.No.575, First Floor, Phase IV, Mohali.

    ……..Complainants

                                        Versus

The Sky Rock City Cooperative House Building Society, SCO 672, First Floor, Sector 70, SAS Nagar (Mohali).

………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member.

Present:    Ms. Rameet Bakshi, cl. for the complainants.

None for the OP.

(MRS. MADHU P. SINGH, PRESIDENT )

ORDER

                This complaint was earlier decided by this Forum vide order dated 30.12.2014.  Against the order of this Forum, the complainants preferred an appeal before the Hon’ble State Commission and the Hon’ble State Commission vide order dated 17.07.2015 set aside the order of this Forum and remanded back the complaint to this Forum for deciding the same on merits.

                The case of the complainants is that they booked one plot measuring 150 sq. yards with the Opposite Party (for short ‘the OP’) by paying Rs.10,000/- as advance vide receipt 01.08.2011 Ex.C-1.  The OP had mentioned on the back of Ex.C-1 that the physical possession of the plot would be handed over not later than two years of registration/requisition meaning thereby the possession was to be given by 31.07.2013. On asking from the OP, the complainants filled the application form Ex.C-2. Another amount of Rs.4,50,000/- demanded by the OP was deposited by the complainants vide receipt dated 21.12.2011 Ex.C-3.  Thereafter the complainants contacted the OP number of times to give physical possession of the plot but till date no information has been provided to them.  The complainants vide their letter dated 01.01.2014 Ex.C-4 requested the OP to refund the deposited amount of Rs.4,50,000/- with interest.  The OP has not refunded the amount till date nor handed over the physical possession of the plot. This act of the OP is deficiency in service and unfair trade practice on its part.

                With these allegations, the complainants have sought directions to the OP to refund their deposited amount of Rs.4,60,000/-   with interest @ 12% per annum from the date of deposit till actual refund; to pay them Rs.2,00,000/- on account of increase in cost of construction in last three years; to pay them  Rs.1,00,000/- for mental tension and harassment and Rs.33,000/- as cost of litigation.

2.             After remand of the case, Shri V.K.Sandhu, Advocate appeared on behalf of the OP and filed written arguments on 04.09.2015.  Learned counsel for the OP sought time to work out compromise. Accordingly, the complaint was adjourned to 18.09.2015 for knowing the outcome of compromise, failing which it was ordered that arguments would be heard. On 18.09.2015 the Coram was not complete and the complaint was adjourned to 30.09.2015. On 30.09.2015, learned counsel for the OP submitted that he has no instructions regarding compromise and the complaint was adjourned to 06.10.2015 for remaining arguments.  Thereafter, none appeared for the OP for addressing remaining arguments on 06.10.2015 and 23.10.2015.

3.             We have heard learned counsel for the complainants and gone through pleadings and the written arguments filed by the OP. 

4.             We have examined the submissions of the parties on record. As per the complainant, at the time of becoming the member of the OP society, he paid Rs.5,000/- as membership fee and Rs.5,000/- as advance being the booking price of one plot measuring 150 sq. yards to the OP for providing plot at Sector 111-112 Mohali. The price of the plot was fixed for Rs.12,000/- per sq. yard.  As per the complainant the application form for membership was duly filled up by him and accepted by the OP is as evident from Ex.C-2. As per the OP the complainant was allotted the plot on terms and conditions of payment schedule as mentioned in the application dated 15.12.2011 A-6 submitted by the OP with its written arguments. Further as per the complainant he has paid a sum of Rs.4,50,000/- to the OP vide cheque No.272042 dated 24.12.2011 and the OP has issued receipt in lieu thereof i.e. receipt No.5697 dated 21.12.2011 Ex.C-3. As per the complainant the terms and conditions on the leaf of Ex.C-1, Ex.C-2/A-6 and Ex.C-3 are entirely different qua the right of the complainant seeking refund of the deposited amount in the event OP failed to handover the possession as per agreed time frame and the said time frame is also different in all the documents. As per the counsel for the complainants they have approached the OP to know the status of development and particular date when they are going to have the physical possession of the plot but no intimation/information was supplied. As per terms and conditions mentioned in Ex.C-1 the OP has taken an obligation to handover the possession of the plot to the complainant within 2 years from the date of registration/requisition, as per Ex.C-3 the said period is three years from registration/requisition whereas as per terms and conditions mentioned in document A-6 the agreed time frame is two years from the date of registration/requisition subject to change of terms and conditions, if required. As per the complainants the OP has failed to abide by the time frame though varied in every document and till date has not issued the offer of possession. Further as per the complainants the terms governing refund of the amount also vary from document to document. As per Ex.C-1 the complainants can seek the refund of the amount after one year from registration, whereas as per Ex.C-3 the said time frame is 3 years from registration and in document A-6 it is three years from the date of registration. The counsel for the complainant has drawn our attention to Ex.C-4 i.e. letter dated 01.01.2014 sent by the complainants to the OP seeking refund of the deposited amount of Rs.4,50,000/- alongwith membership and interest on prevailing rate as the OP had failed to show any development in the area as no bank is ready to give loan to the complainants and further the OP had failed to handover the possession of the plot within two years from the date of registration/ requisition as agreed by the OP vide Clause-5 of the contract agreement dated 01.08.2011 Ex.C-1. As per the counsel for the complainant, the terms and conditions as enumerated and duly signed by the parties in Ex.C-1are binding on the parties and despite the failure on the part of the OP to develop the plot within the agreed period of two years from the date of registration i.e. from 01.08.2011 to 01.08.2013, the OP has failed to refund the deposited amount alongwith interest after one year from the date of registration. The said period of refund has also expired on 01.08.2012. So much so that even after receiving the request letter for refund dated 01.01.2014 Ex.C-4 the OP has failed to refund the deposited amount to the complainant. Thus, even after expiry of the promised dates for giving the refund of the amount or handing over the possession of the plot, nothing has been done by the OP. As per the complainants the project has not been cleared by the concerned authorities and in the second week of November, 2013 they again called upon the OP to know the status of the plot but could not get any satisfactory response from the OP. That itself shows that the OP is unable to give the physical possession of the plot to the complainants. The OP has collected the money from number of consumers including the present complainants illegally. So non delivery of the possession of the plot as well as non refund of the deposited amount by the OP, is an act of deficiency in service.

5.             In the written arguments submitted by the OP, after matter is remanded by the Hon’ble State Commission, the OP has taken a categoric stand that OP is a registered society under the Societies Regulation Act, 1960 and it is a no profit no loss society engaged in the welfare and development of the society to provide best possible result oriented facilities with a view to achieve success in life by alround growth and development. The promoter license has been issued in favour of the society by GMADA on 10.08.2011 whereas the society has got the CLU in its favour on 26.07.2013. The GMADA authorities have issued the license on 06.05.2014 to develop the colony and, therefore, all the permissions and sanctions are in its favour. The complainants themselves have failed to adhere to the payment schedule as per Ann. A-6, therefore, the physical possession could not be handed over to them and still if the complainants want to refund the money, the OP is willing to refund as per rules of the society.

6.             The OP has failed to show the rules of the society governing the refund of the deposited amount.
Further the sanctions and approval as relied by the OP, the perusal of the same reveals contrary factual position. The OP has collected the money from the complainant on 01.08.2011 whereas the approvals are issued by the authorities concerned subsequently in the year 2013 and 2014. Without having proper and necessary approval in its favour, the OP has issued misleading and false receipt dated 21.12.2011 Ex. C-3 showing in bold letters “PUDA APPROVED”. Even issuance of such a receipt is a false representation and is an act of unfair trade practice as defined under Section 2 ( r) (iv) of the Consumer Protection Act, 1986.Therefore, we are of the opinion that the terms and conditions as laid down  and agreed by the parties vide Ex.C-1, being binding on the parties, the complainant is entitled to refund of the deposited amount within one year from the date of registration. 

7.             It is ample clear from the evidence that the terms and conditions mentioned in Ex.C-1 governs the relationship between the parties and are binding upon them. The terms and conditions which were originally agreed upon by the parties and contained in Ex.C-1 were issued at the time the complainants have applied for allotment of the plot. It is mentioned in that receipt itself that the complainants, if do not want to continue even after paying some installments, they would be refunded the entire amount at the prevailing rate of interest after one year from the date of registration. The said condition could not have been changed by the OP by incorporating the different time frame as well as condition of registration/requisition as is evident from Ex.C-3 and A-6 which were subsequently issued by the OP after registration of the plot. The Act of the OP clearly amounts to unfair trade practice on its part. Therefore, once the OP has failed to show its bonafide of offer of possession to the complainants within the stipulated agreed period of two years from the date of registration, as per Ex.C-1, the OP are not well within its right to retain the deposited amount of the complainant alongwith promised prevailing rate of interest within one year from the date of registration.

8.             It is admitted fact that the complainants have got themselves registered with the OP on 01.08.2011 and paid the membership fee as well as advance of Rs.5,000/- for booking the plot as is evident from Ex.C-1. One year period from the date of registration for seeking refund of the deposited amount at prevailing rate of interest has already expired on 01.08.2012 and the OP has failed to discharge its obligation towards the complainants in this regard.  The OP has committed further default in discharging its obligation from 01.08.2012 till date despite the fact that it has received a written request dated 01.01.2014 Ex.C-4 for refund  and the default continued thereafter. Thus, the OP has indulged into both deficiency in service and unfair trade practice.  Therefore, the complaint deserves to be allowed and complainant deserves to be compensated. For awarding compensation due to the acts of omission or commission amounting to deficiency in service and unfair trade practice and causing mental agony and harassment to the complainant, we rely on the decision of Hon’ble State Commission in First Appeal No.1177 of 2014 titled as Kuldeep Chand Shaunak Vs. Sky Rock City Cooperative House Building Society decided on 01.10.2015.

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

(a)    to refund to the complainants the deposited amount of Rs.4,50,000/- (Rs.Four lacs fifty thousand only) with interest thereon @ 12% per annum from the dates of deposit till actual payment.

(b)    to pay to the complainants a lump sum compensation of Rs.1,00,000/- (Rs. One lac only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of two months 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.                           

October 28, 2015.

                                                                 (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Amrinder Singh Sidhu)

Member