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

Consumer Complaint No.100 of 2017

                                                 Date of institution:  09.02.2017                                                         Date of decision   :  02.05.2018

Arun Kumar son of Laxami Narain Singh, resident of House No.2824, Sector 66, SAS Nagar, Mohali.

…….Complainant

Versus

1.     Yellow Stone Landmark Infocity through its authorised representative/Sales Manager, Sector 66-A, Mohali, District Mohali.

2.     Yellow Stone Builder’s Private Limited through its authorised representative/Manager having its corporate office at SCO 66-A, Mohali.

……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member.

                Mrs. Natasha Chopra, Member.

Present:    Shri Suresh Kumar, counsel for the complainant.

                OPs ex-parte.

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

Order

               Complainant, during service in M/s. Philips India Limited, Mohali booked residential apartment measuring 400 sq. ft. in basic sale price of Rs.8,75,000/- in the Integrated IT Township known as Yellowstone Landmark Infocity. This project was developed by Sukhum Infrastructure Pvt. Ltd. at Yellowstone residences (Phillips Towers) in Sector 66-A, SAS Nagar, Mohali. Agreement dated 17.05.2012 was entered into between M/s. Philips India Ltd. Employees Union and the Yellowstone Builders Pvt. Ltd.  As per Clause-6 of the agreement, possession of the above said residential apartment was to be handed over within 18 months with extended tenure of six months. So this possession was to be handed over on or before 23.11.2013. Complainant deposited a sum of Rs.1,75,000/- with OPs vide receipt dated 22.05.2012. Thereafter complainant through Union requested OPs for handing over possession of the residential apartment, but to no effect because construction work was not started on the spot. Application/letter dated 30.10.2013 was sent to OPs, who replied the same through letter dated 11.11.2013 sent to the Union. Through that reply it was disclosed as if OPs were waiting for the housing policy of year 2013, to be formulated by Govt. of Punjab in March, 2013. That policy had not been notified even till 10.10.2013. OPs admitted delay in start of construction of the unit, but they again assured Union as if construction will be started tentatively by 25.12.2013. Despite that no construction work started on the spot. After expiry of time limit specified for handing over possession through letter dated 11.11.2013, complainant again approached OPs on 15.12.2013 through representation for knowing as if the process of finalizing the contracts for infrastructure works will be completed by March, 2014. Despite that construction was not started by OPs. Thereafter on 09.05.2014, a meeting was held between OPs and Employees Union, in which decision was taken that the applicants, who have received the partial advance or full refund of their advances, would not be considered for allotment of the units. However, all other applicants, found eligible for the apartments, would be allocated units. OPs assured complainant through Union that if the work not completed by December, 2015, then the complainant would be refunded the entire amount as per GMADA norms. Writing dated 09.05.2014 was given by OPs in this respect. Thereafter matter taken by other consumers before this Forum, but ultimately compromise was arrived at on 31.08.2015 and 29.01.2016. Through that compromise, construction was undertaken to be completed before November, 2016 and thereafter possession would start to be delivered. It was also undertaken that in the event of failure to start construction, OPs will refund the amount of the consumers with interest @ 18% per annum from the date of deposit. Despite that undertaking possession not handed over and nor amount refunded and that is why execution applications by other consumers are filed in this Forum. Complainant in the month of August, 2015 requested OPs for refund of Rs.1,75,000/- in pursuance of which cheque No.746793 dated 10.08.2015 for amount of Rs.50,000/-; cheque No.,746794 dated 21.09.2015 for amount of Rs.60,000/- and cheque No.746795 dated 30.10.2015 for amount of Rs.65,000/- were issued by OPs in favour of complainant. However, none of these cheques were honoured on presentation regarding which intimation was given by complainant to OPs. Thereafter OPs assured the complainant about making of payment in cash, but till date OPs have not refunded even a single penny. This complaint is filed after serving legal notice dated 23.11.2016 through counsel. It is claimed that OPs deliberately and intentionally harassed and tortured the complainant by not performing their part of terms and conditions. So this complaint for seeking refund of Rs.1,75,000/- alongwith interest @ 18% per annum alongwith compensation for mental harassment and agony of Rs.50,000/-, but litigation expenses of Rs.20,000/-.

2.             In reply submitted by OPs, it is claimed as if complaint is not maintainable because benefit of category of EWS/LIG not available to complainant owing to non submission of eligible certificate in that respect. Clause-6 of buyers agreement stipulates conditions to the effect that buyer undertakes to submit the eligibility certificate.  It is claimed that residential apartment could not have been given to the complainant without following the policy of Punjab Govt. In view non fulfilling of requirement of entitlement of EWS/LIG category beneficiary, OPs could refund the paid amount by buyer without any deduction as per condition No.6 of the buyers agreement. Further it is claimed that though initially the road left out by GMADA for connecting International Airport, Mohali to the project of the OPs was having width of 164’, but later on the same was revised for increasing the width to 200’ by GMADA. It is claimed that due to increase of width of this road, master plan of OPs was forced to be re-scheduled by GMADA authorities. So it is claimed that there had not been any malafide intention in delivering possession to complainant. Facts regarding entering into agreement or of making payments by complainant to OPs are alleged to be matter of record. Facts regarding writing of letters not denied. Admittedly some cheques even were issued by OPs in favour of complainant, but other averments of the complaint denied. Prayer made for dismissal of the complaint.

3.             Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-9 and thereafter closed evidence.  Shri J.S. Sodhi, authorised representative-cum-Manager of OPs tendered in evidence his affidavit Ex.OP-1/1 alongwith document Ex.OP-1 and thereafter closed evidence.

4.             Written arguments not submitted by any of the parties. Subsequently none turned up for OPs and as such OPs were proceeded against ex-parte vide order dated 11.04.2018. Oral arguments of counsel for complainant heard and records gone through.

5.             From the pleadings of the parties and the submitted affidavit Ex.CW-1/1 of complainant as well affidavit Ex.OP-1/1 of representative of OPs, it is made out that buyers agreement Ex.C-1 = Ex.OP-1 was executed between the parties namely Yellowstone Builders Pvt. Ltd. and M/s. Philips India Ltd. Employees Union. Complainant being member of said Employees Union deposited an amount of Rs.1,75,000/- regarding which acknowledgment through letter Ex.C-2 dated 22.05.2012 even has been issued by authorised signatory of OPs. However, construction work on the spot has not been carried out despite acknowledgement of receipt of Rs.1,75,000/- by OPs through Ex.C-2 and that is why Union, of which complainant is member, sent letter dated 30.10.2013 to OPs, in response to which letter Ex.C-3 was sent by OPs to the said Employees Union.

6.             Through letter Ex.C-3 dated 11.11.2013 OPs claimed that they are awaiting for the Housing Policy 2013 projected by Govt. of Punjab in 2013 through its website and that is why there is delay in start of construction of the units. Through Ex.C-3, assurance was given by OPs to complainant for start of construction tentatively by 25.12.2013. In view of this letter due explanation was submitted by OPs to the concerned Employees Union for explaining the reason as to why construction could not be started on the spot.

7.             Concerned Employees Union through letter Ex.C-4 was informed that the development work on the spot has been started at the project site. However, through Ex.C-4 concerned Employees Union was informed that after partial completion of the infrastructure work i.e. roads, sewerage, electricity supply etc., the construction work will be started at the site. Through letter Ex.C-4 it was disclosed to the said Union that the people who have taken partial advance or full refund of their advances, would not be considered for allotment of the units, but other eligible applicants for the said apartments, would be allocated the units as planned, but subject to their eligibility, as per terms of the agreement dated 17.05.2012. So through this letter Ex.C-4 itself, Union concerned was informed that the members of the Union who are interested in continuing, should sign the consent letter for the ongoing development work, but those who are not interested in continuing their relationship with construction company, they should sign this letter and refund of the booking amount in due course will take place as per policy. So from perusal of letter Ex.C-4, it is made out that promise for allocating the residential apartments to the eligible applicants was made. That eligibility criteria mentioned in agreement dated 17.05.2012 was to be followed. That agreement Ex.C-1 has been produced on record.

8.             Perusal of Ex.C-1 reveals that basic price of the unit as Rs.8,75,000.00/Rs.14,00,000.00, but keeping in view the area of the apartment as 400/600 sq. ft. respectively. So the basic price of the residential apartment allotted to complainant certainly was Rs.8,75,000/- as per Ex.C-1. As per Clause-3 of Ex.C-1, buyer has to pay 20% of the total amount of basic price at the time of booking and that is why complainant deposited Rs.1,75,000/-. As per Clause-3 of Ex.C-1, buyer was to pay balance basic price alongwith other charges as may be demanded as per Annexure-1 providing for payment schedule for apartment. After going through this Annexure-1, it is made out that after paying 20% of the basic price, balance 10% of the sale price was payable at the start of construction itself, but 15% more on completion of ground floor, roof slab and like that. It is the case of complainant that construction was not started and as such certainly submission advanced by counsel for complainant has force that complainant was not duty bound to pay balance 10% of the sale price. Even if that be the position, despite that the overall terms and conditions of buyers agreement Ex.C-1 = Ex.OP-1 to be taken into consideration.

9.             Clause-6 of Ex.C-1 = Ex.OP-1 provides that buyer for allotment of EWS/LIG apartment must fulfill eligibility conditions stipulated by Govt. of Punjab. Through this Clause-6 itself an obligation was cast on the buyer (who is complainant of this case) to establish that he fulfills all the norms of eligibility laid by Govt. of Punjab for allotment of EWS/LIG apartment. Even as per this Clause-6 of Ex.C-1 = Ex.OP-1, applicant concerned who does not fall under the category of EWS/LIG will not be eligible for allotment of EWS/LIG apartment. When such is the stipulation laid down in Clause-6 of Ex.C-1, then certainly it was for the complainant to prove that he was fulfilling the norms laid down by Govt. of Punjab for allotment of EWS/LIG apartment. Complainant has not produced on record any material to establish that he was fulfilling such conditions and as such in view of Clause-6 of Ex.C-1 = Ex.OP-1, he at the most is entitled for refund of the amount paid, but without any deduction. Further this Clause-6 provides that buyer would not claim any interest for the amount refunded to him/her. If that be the position, then certainly complainant not entitled to any amount of interest until refund of the same ordered in his favour because he himself remained at fault in submitting proof regarding fulfillment of requirements laid down by Govt. of Punjab for allotment of EWS/LIG apartment. So submission advanced by counsel for complainant has no force that complainant is entitled to interest from the date of deposits.

10.           Even in case of Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC), it has been laid down that when claim for refund of the amount deposited with the builder staked in consumer complaint under circumstances that the builder has not developed the site and was not in a position to deliver possession, then consumer concerned will not be entitled for any interest, in case he himself is defaulter in not adhering to the installment payment plan. Ratio of this case fully applicable to the facts of the present case because complainant himself failed to submit proof regarding his entitlement to allotment of EWS/LIG apartment as per Govt. norms.

11.           It is admitted case that three cheques of amount of Rs.50,000/-; Rs.65,000/- and Rs.60,000/- dated 10.08.2015; 30.10.2015 and 21.09.2015 respectively were issued by OPs in favour of complainant for refund of the received amount of Rs.1,75,000/-. However, all these three cheques (Ex.C-6) stood dishonoured and if that be the position, then certainly entitlement of complainant for interest @ 12% becomes with effect from the date of issue of first of these cheques namely 10.08.2015. It is so because OPs even after providing of assurance to complainant to refund the amount failed to discharge that obligation after issue of above referred three cheques. In such circumstances allowing of interest @ 12% per annum w.e.f. 10.08.2015 on the principal amount of Rs.1,75,000/- will be quite proper and justified. However, complainant suffered mental agony and harassment due to dishonour of cheques and due to non delivery of possession to him and as such he is entitled for compensation of mental agony and harassment and also to litigation expenses of reasonable amount.

12.           Moreover it is claim of OPs that width of the road of International Airport at Mohali stood revised from 164’ to 200’ resulting in re-scheduling of master plan and as such fault does not remain with OPs exclusively in not allocating the apartments or constructing the apartments in scheduled time. Rather if the OPs did wait for policy of the Govt. of 2013, then they did the right thing so that interest of the allottees subsequently does not suffer in any way for some adverse Governmental policy to the interest of the allottees.

13.           Even if in the earlier complaint filed by Krishan Kumar, some compromise was arrived at, despite that benefit of said recorded compromise as evidenced through Ex.C-5 cannot be gained by complainant because he was not a party to the said complaint. So allowing of interest @ 18% per annum is not justified in this case before us, more so when the earlier complaint filed by Krishan Kumar bearing No.477 of 2015 stood dismissed as withdrawn on 29.01.2016 as revealed by photostat copy of that order as part of Ex.C-5. Complainant sought refund through issue of legal notice Ex.C-8 dated 23.11.2016 by pleading about dishonour of earlier three cheques and as such virtually refund sought with effect from 10.08.2015 and not before that. As complainant earlier had been acquiescing in conduct of OPs qua delay in start of construction work in hope that he will be the gainer and as such now after recession in the market, in case interest allowed with effect from the date of deposit, then the same, in our view, would be unreasonable because the OP due to force majeure circumstances could not start construction earlier.

13.           As a sequel of above discussion, complaint allowed in terms that the OPs will refund the received amount of Rs.1,75,000/- with interest @ 12% per annum w.e.f. 10.08.2015  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 OPs, whose liability is held as joint and several. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order.  Certified copies be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

May 02, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                       (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member