State Consumer Disputes Redressal Commission
Smt. Om Prabha vs M/S Janta Land Promoter Limited on 28 May, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 42 of 2012
Date of institution: 28.5.2012
Date of Decision: 28.5.2010
Smt. Om Prabha wife of Dr. Rohin Sachdeva, resident of Tanki Wali Gali
No. 3, Dashmesh Nagar, Moga, Punjab.
.....Complainant
Versus
1. M/s Janta Land Promoter Limited, Head Office SCO No. 522-
523-524, Sector 70, Mohali, Punjab through its Managing
Director.
2. The General Manager, M/s Janta Land Promoter Limited, Head
Office SCO No. 522-523-524, Sector 70, Mohali, Punjab
.....Opposite Parties
Consumer Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the complainant : Sh. Tarun Mehta, Advocate for
Sh. Anil Sharma, Advocate
For the opposite parties : Sh. Gaurav Jindal, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
2 Consumer Complaint No. 42 of 2012 The complainant has filed this present complaint against the Ops on the allegations that the opposite parties is Limited Company and is running the business of Real Estate Projects. The State of Punjab had formulated an Industrial Policy for providing certain incentives to the Investors and Promoters. On 28.4.2005, the Empowered Committee of the State of Punjab approved the Mega Industrial Project of the opposite party and permitted it to develop the industrial component of the project in Sector 82 and residential component in Sectors 90-91 under the territory of Mohali and accordingly, an agreement was executed between the State of Punjab and the Opposite Party for setting up mixed use Mega Industrial Park in an area of 300 acres at Mohali. On the basis of agreement with the State Government, the opposite party invited applications for allotment of residential apartments in "Regency Heights", Sector 90 to be constructed in the area of 3 acres. The total price of the apartment was fixed as Rs. 43.20 lacs and the complainant applied for the apartment in the said scheme and deposited earnest money of Rs. 6 lacs vide cheque No. 698531 dated 3.6.2008. On 23.1.2008, the opposite party held the draw of lots and complainant was declared successful therein for allotment of the abovesaid apartment. Then he received letter dated 28.1.2009 to execute an agreement in respect of allotment of the apartment and apartment No. B-1003/B, 10th Floor was allotted. On 8.2.2008, the complainant executed the agreement containing various terms and conditions. On 3.3.2008, the opposite party issued the allotment letter in respect of abovesaid apartment measuring 1900 sq. ft. supre area. 3 Consumer Complaint No. 42 of 2012 The complainant had already deposited a sum of Rs. 3 lacs and was required to pay Rs. 40,10,000/- in seven instalments. Six instalments of Rs. 6 lacs each whereas the 7th instalment was Rs. 4,10,000/-. In case of delay, the opposite party had discretion to condone the delay by charging penal interest @ 15% p.a. for the delayed period. The complainant paid a sum of Rs. 12 lacs i.e. two instalments of Rs. 6 lacs each. However, the opposite party had failed to develop the Industrial Estate, nor there was any development of the residential and commercial pockets. Rather the opposite party was involved in a protracted litigation with Government of Punjab in Civil Writ Petition No. 11744 of 2008 and CWP No. 18518 of 2008, which created doubt in the mind of the complainant regarding the progress and completion of the project by the opposite party. The complainant and her husband were involved with the promotional programmes of educational institutions, therefore, they could not deposit the due instalments. In January 2011, they came to know regarding the cancellation of their apartment and before that Ops had issued a letter dated 3.12.2010 with a direction to the complainant to appear before the General Manager of the Company on 15.12.2010. The said letter was not in the knowledge of the complainant, therefore, she could not appear before the General Manager on the said date. Although the deposited amount of Rs. 15 lacs only a sum of Rs. 4,32,000/- was sent to the complainant. The cancellation is wrong, illegal and arbitrary, which amounts to deficiency and unfair trade practice on the part of the Ops, hence, the complaint with the direction to the Ops for the allotment of Apartment No. B-1003/B, 10th 4 Consumer Complaint No. 42 of 2012 Floor in the Regency Heights, Sector 90, Mohali; compensation of Rs. 25 lacs, make adjustment of the amount illegally deducted from the complainant; OP will restrained to put Apartment No. B-1003/B, 10th Floor in the Regency Heights, Sector 90, Mohali to sale; also pay interest and litigation expenses.
3. The complaint was contested by the Ops with the preliminary objections that the complainant has not approached the Hon'ble Commission with clean hands; out of a sum of Rs. 43.20 lacs, he had just deposited a sum of Rs. 15 lacs i.e. Rs. 3 lacs booking amount and two instalments of Rs. 6 lacs each; notices were issued to the complainant on 26.11.2008 to 24.3.2010 to deposit the outstanding amount and was also called for personal hearing vide notice dated 3.12.2010 but she should not appear, therefore, the allotment was cancelled vide letter dated 25.12.2010 and that the complainant and her husband are founder of spectrum of 32 institutions and are financially strong, therefore, she did not want the apartment for their personal use and wanted for measure of speculation as an investment, therefore, she does not come within the definition of the 'consumer'. On merits, booking of the apartment and deposit of the amount as stated above is a matter of record. However, after deposit of two instalments, she did not deposit the outstanding instalments as per the schedule given as per the Buyer's Agreement. She did not appear for personal hearing also given on 15.12.2010 but when she failed to turn up, vide letter dated 25.12.2010 the apartment was cancelled. A very vague plea has been taken of litigation of the Ops, which was not with the 5 Consumer Complaint No. 42 of 2012 complainant but was with the 3rd party, which has also culminated in favour of the Ops. The apartment once cancelled will not be restored, however, in case the complainant wants any other apartment, which is not allotted to anybody else, the same can be considered. The excess amount of Rs. 4,57,835/- was refunded to the complainant but he refused to accept this amount and it was received back. Therefore, there is no deficiency in services on the part of the Ops. Cancellation has been done on account of default on the part of the complainant, therefore, there is no merit in the complaint and the same be dismissed.
4. The parties were allowed to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit of Smt. Om Prabha Ex. C-A, agreement Ex. C-1, terms and conditions Ex. C-2, letter dt. 28.1.08 of OP Ex. C-3, buyer's agreement Ex. C-4, letter dt. 3.3.08 of OP Ex. C- 5, email dt. 20.11.10 Ex. C-6, letter dt. 3.12.10 Ex. C-7, letter dt. 25.12.2010 Ex. C-8, letters of complainant Exs. C-9 & 10, letter of OP dt. 18.2.11 Ex. C-11, copy of CWP Ex. C-12. On the other hand, opposite parties had tendered into evidence affidavit of H.B. Garg Ex. O-A, pamphlets Exs. O-1, O-2, O-3, O-4.
6. We have heard the learned counsel for the parties and have carefully gone through the allegations alleged in the complaint, evidence and documents brought on the record.
7. So far as booking of the apartment is concerned, the same is admitted and Apartment No. B-1003/B, 10th Floor in the Regency Heights, Sector 90, Mohali was allotted worth Rs. 43.20 6 Consumer Complaint No. 42 of 2012 lacs. The complainant deposited Rs. 3 lacs as booking amount and two instalments of Rs. 6 lacs each. After the allotment Buyer's Agreement was executed between the parties. The same is Ex. C-1. The payment schedule was given i.e. Rs. 3 lac as earnest money and six instalments of Rs. 6 lacs each and 7th instalment of approximately Rs. 5 lacs. The complainant deposited only two instalments, other instalments were not deposited. A very vague plea has been taken that due to litigation of the opposite parties, he assessed that there will be no progress in the project, therefore, they failed to deposit the balance amount on the stipulated dates. But the litigation was with the 3td party. It was contended by the counsel for the complainant that now that litigation has come to an end, therefore, she is ready to make the payment. Before cancellation of the Apartment, a notice was given to the complainant to appear for personal hearing before the General Manager on 15.12.2010. The said notice is Ex. C-7 but the complainant did not appear, therefore, there was no alternative for the Ops but to cancel the apartment allotted to the complainants vide letter dated 25.12.2010 Ex. C-8 and a sum of Rs. 4,57,835/- was refunded to the complainant, which he did not accept being a deficient amount. It has been argued by the counsel for the respondent that deductions have been made according to Clause 18 of the Buyer's Agreement vide which the earnest money i.e. 10%, sale consideration of the amount of the apartment together with any interest on instalment due but unpaid as interest on delayed payment shall be forfeited and latest calculation has been given by him, which has been calculated as Rs. 6,10,165/-. Since there is a default on the 7 Consumer Complaint No. 42 of 2012 part of the complainant, the Ops reserve their right to deduct the amount as agreed between the parties as per Clause 18 referred above.
8. During the course of arguments, it was stated by the counsel for the complainant that the complainant is ready to make the payment of the balance amount in case the apartment is restored to the complainant. Counsel for the opposite parties stated that in case the complainant makes the payment as agreed then they can restore the apartment or any other apartment of the equal value could be allotted to the complainant.
9. In view of the circumstances stated above we direct the Ops that after making adjustment of the deductions, which were required to be carried out by the Ops, as per Clause 18 of the Buyer's Agreement the balance amount will be taken out, the apartment will be restored to the complainant. In case the same apartment is not available then any other apartment of the same value will be allotted to the complainant. The complainant will pay the balance amount within a period of six months from the date of fresh allotment in equal instalments. The Ops will also pay interest on a sum of Rs. 4,57,835/- withheld by them @ 15% till payment.
10. In case the apartment is not restored or any other apartment is not allotted to the complainant then the Ops will refund the due amount i.e. Rs. 4,57,835/- to the complainant alongwith interest @ 15% p.a. till payment.
11. Both the parties are directed to comply with the above directions after the receipt of copy of the order. The complainant shall 8 Consumer Complaint No. 42 of 2012 at liberty to initiate proceedings under Section 27 of the CP Act against the OPs.
12. The arguments in this Consumer Complaint were heard on 21.5.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
13. The Consumer Complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
May 28, 2014. (Harcharan Singh Guram)
as Member