DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.206 of 2018

       Date of institution:  19.02.2018                Date of decision   :  02.11.2018

 

Ajay Kumar Srivastav, resident of House No.1065, Ward No.8, Meera Malli, Dera Bassi, Mohali (Punjab).

 

…….Complainant

Versus

 

1. Vasant Vihar Homes through its Managing Director/Authorised signatory having its business address at SCO No.15-B, First Floor, Opposite ATS, Barwala Road, Dera Bassi, Mohali, Punjab.

 

2. Mr. Sonu Kumar, Prop/Partner/Managing Director of M/s. Kedar Housing & Estates having its business address at Shop No.3, Sigma City Road, Opposite Baba Vishvkarma Mandir, Zirakpur, Tehsil Dera Bassi, Mohali, Punjab.

 

……..Opposite Parties

 

Complaint under Section 12 of 

the Consumer Protection Act.

 

Quorum: Shri G.K. Dhir, President,

Shri Amrinder Singh Sidhu, Member

 

Present: Shri Balwinder Singh, counsel for complainant.

OPs ex-parte. 

 

Order by :-  Shri G.K. Dhir, President.

 

Order

 

Complainant on advise of OP No.2 for purchase of one plot in Dera Bassi for personal use and occupation, got booked  residential plot for total sale price of Rs.8.00 lakhs with OPs on assurance that complainant need  to pay only 40% of the total sale consideration amount. Complainant was assured that 60% of the balance sale consideration amount of Rs.6.00 lakhs will be got arranged as loan by OP No.1 with assistance and efforts of OP No.2. Complainant was not owning and occupying any house in Mohali and that is why he being allured by OPs purchased Plot No.2 in project Vasant Vihar Homes by paying cash amount of Rs.20,000/-; Rs.80,000/- and Rs.1.00 lakh during period from July to August, 2016. On pretext of arranging for loan, OP No.1 obtained signatures of complainant on blank documents. Two cheques of amount of Rs.2875/- and Rs.1150/- got from complainant were got encashed by OPs from the bank account of complainant, but despite that assistance for procuring loan not provided by OPs. OPs refused to get provided loan to complainant and even they failed to handover possession of the plot allotted to complainant, despite acceptance of Rs.2.00 lakhs. Matter had been procrastinated by OPs resulting in hefty loss to complainant on account of mental tension and agony. Complainant was shocked to learn in November, 2017 as if OP No.1 has sold the allotted plot to complainant to third person without his consent. Numerous requests for refund of Rs.2.00 lakhs remained unheeded and that is why this complaint for seeking refund of Rs.2.00 lakhs with interest @ 18% per annum from the dates of payment namely 05.09.2016 till filing of complaint. Compensation for mental agony and harassment of Rs.1.00 lakh and litigation expenses of Rs.44,000/- more claimed.

2. OPs are ex-parte in this case.

3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-6 and thereafter his counsel closed evidence. 

4. Written arguments not submitted. Oral arguments heard and records gone through.

5. Perusal of affidavit Ex.CW-1/1 alongwith receipt Ex.C-1 shows that on allotment of plot No.2 by OP No.1 to complainant, he deposited Rs.20,000/- on 29.07.2016. Even through receipts Ex.C-2 and Ex.C-3, amounts of Rs.80,000/- and Rs.1.00 lakh were deposited by complainant on 24.08.2016 and 05.09.2016. So this documentary evidence available on record certainly establishes that complainant deposited Rs.2.00 lakhs in all with OPs in hope of getting possession of residential plot.

6. Perusal of affidavit Ex.CW-1/1 and sent legal notice Ex.C-4 through postal receipts Ex.C-5 and Ex.C-6 further reveals that though promise was made by OPs to complainant for securing 60% of price amount as loan for complainant, but no efforts at all were made by OPs for arranging such loan. Making of false promise amounts to deficiency in service and as such complainant liable to be compensated by way of compensation for mental harassment and agony and to litigation expenses. It is on account of failure of OPs to arrange for loan that complainant could not pay the balance amount to OPs are submission of counsel for complainant. No record regarding encashment of amounts of two cheques of Rs.2875/- and Rs.1150/- has been produced by complainant, despite the fact that such proof bound to be available with complainant and as such on account of withholding of best evidence available in this respect, adverse inference against complainant liable to be drawn for finding that complainant may not have deposited the process charges for getting loan and that is why OPs may not have got the loan disbursed. Copy of statement of account of bank of complainant could have proved about encashment of above said two cheques, but no copy of statement of account of complainant maintained with bank produced and nor name of the bank mentioned, from where encashment of above referred two cheques got by OPs. Being so, fault in not arranging for loan cannot be exclusively attributed to OPs. In such circumstances fault with complainant is also there in not sticking to installment payment plan. 

7. As per law laid down in Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC), if the purchaser remained defaulter in not adhering to the installment payment plan, then he is not entitled for any interest, even though the builder had not developed the site, due to which he is not in a position to deliver possession. It is so because he who seeks equity must do equity. In case the equity seeker himself is deficient, then he is not entitled for any interest, is the crux of ratio of above said case. In view of ratio of this case, complainant not entitled for interest until demand for refund put forth by him. That demand put forth by complainant for the first time by issue of legal notice Ex.C-4 dated 06.12.2017 and as such complainant entitled for refund of paid amount with interest @ 12% per annum from the date of issue of legal notice dated 06.12.2017 till payment. 

8. As a sequel of above discussion, complaint allowed ex-parte with direction to OPs to refund the received amount of Rs.2,00,000/- (Rs. Two lakhs only) with interest @ 12% per annum with effect from the date of legal notice dated 06.12.2017 till payment.  Compensation for mental agony and harassment of Rs.20,000/- (Rs. Twenty Thousand only) and litigation expenses of Rs. 5,000/- (Rs. Five Thousand only) more allowed in favour of the complainant and against OPs. Payment of these amounts of compensation and litigation cost be made within 30 days from receipt of certified copy of order. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.

Announced

November 02, 2018.

  (G.K. Dhir)

President

 

 

(Amrinder Singh Sidhu)

Member