DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.543 of 2017
Date of institution: 24.07.2017 Date of decision : 07.06.2018
Krishan Kumar Saini son of Shri Bhana Ram, resident of House No.110, VPO Shamgarh, Tehsil Nilokheri, District Karnal.
…….Complainant
Vs
1. Yellow Stone Builders Pvt. Ltd., SCO 123-124, 3rd Floor, Sector 17-C, Chandigarh through its Authorised Signatory.
2. Yellow Stone Builders Pvt. Ltd., c/o Site Office, Sector 66-A, SAS Nagar (Mohali), through its Director/Authorised Signatory.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Present: Ms. Simarpreet Kaur, counsel for complainant.
OPs ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, an employee of M/s. Cheema Boilers Ltd., entered into buyer agreement dated 18.11.2012 with OPs for purchase of LIG apartment for total sale consideration of Rs.15,60,000/-. Rs.3,12,000/- was paid at the time of entering into agreement and thereafter document dated 21.11.2012 was executed regarding LIG apartment area of 600 sq. ft. in Sector 66-A, SAS Nagar (Mohali). That apartment was to be completed and thereafter possession to be handed over within 24 months i.e. on or before 18.11.2014. Provision for extension of 6 months was also incorporated in the agreement. However, OPs have not carried out construction work on the spot. No work of flooring, cupboard, doors, electricity connection, sewerage etc., carried on the spot. Complainant has been kept in dark by OPs, despite the fact that he belongs to weaker section/backward class community. There is no possibility of raising of construction on the spot and as such due to inordinate delay in handing over of possession or raising construction, complainant sent notice dated 20.01.2017 to OPs for calling upon them to refund the paid amount of Rs.3,12,000/- with interest @ 18% per annum from the date of allotment letter till realization. Compensation for mental harassment of Rs.2.00 lakhs with litigation expenses of s.50,000/- also claimed.
2. OPs are ex-parte in this case.
3. Counsel for complainant in ex-parte evidence tendered affidavit of complainant Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-3 and then closed evidence.
4. Written arguments not submitted, but oral arguments of counsel for complainant heard and records gone through.
5. Copy of buyers agreement Ex.C-1 proves case of complainant that the flat/apartment was booked by him with OPs. Payment of amount of Rs.3,12,000/- by complainant to OPs is admitted by OPs through letter dated 21.11.2012 placed on record as Ex.C-2. Perusal of Ex.C-1 and Ex.C-2 reveal that apartment having 600 sq. ft area was to be purchased by complainant for total sale consideration of Rs.15,60,000/-. After going through last clause available at Page-2 of buyers agreement Ex.C-1, it is made out that complainant undertook to pay 20% of the total sale price (basic price) at the time of booking, but to pay balance price as per payment plan indicated in the annexure enclosed with buyers agreement. That annexure, though part of agreement Ex.C-1, has not been produced by complainant and as such the material produced on record undoubtedly establishes that complainant after paying 20% of basic price of Rs.15,60,000/-, has not paid any more amount. As construction work not carried on the spot and that is why complainant sent notice Ex.C-3 to OPs for seeking refund of the paid amount of Rs.3,12,000/-. Possession was to be delivered by 18.11.2014 with further extension of period of 6 months, but construction has not been carried on the spot and as such certainly OPs committed unfair trade practice by not performing their part of contract of carrying out construction work on the spot. Even if such construction work not carried on the spot by OPs, despite that fault also lays with complainant in not sticking to payment plan.
6. 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 defaulter, then he is not entitled for any interest, is the crux of ratio of above said case. Ratio of this case is fully applicable to the facts of the present case and as such complainant is not entitled to interest until he sought refund of the paid amount. That refund sought by complainant for the first time by issuing notice Ex.C-3 on 20.01.2017 and as such complainant entitled to interest @ 12% per annum on the deposited amount with effect from 20.01.2017 till payment. Complainant even has suppressed material facts because he has not produced schedule of payment mentioned as Annexure in the buyer’s agreement. In view of suppression of these material terms also, complainant not entitled to any interest, as above said.
7. As a sequel of above discussion, complaint allowed with direction to OP to refund the received amount of Rs.3,12,000/- with interest @ 12% per annum with effect from the date of issue of notice namely 20.01.2017 till payment. Compensation for mental harassment and agony of Rs.20,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against the OP. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. File be indexed and consigned to record room.
Announced
June 07, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
