State Consumer Disputes Redressal Commission
Manju Garg vs Bc on 1 May, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH. Appeal Case No. 93 of 2012 Date of institution: 19.3.2012 Date of decision : 1.05.2012 Manju Garg w/o Sanjeev Kumar Garg, R/o House No.74, NPHC, BBMB Complex, Industrial Area, Phase I, Chandigarh. . Appellant Versus M/s BCL Homes Ltd., Regd. Office : Shop No.140, Railway Road, Dariya, UT, Chandigarh. 2nd Address : #253, Sector 7, Panchkula, through its authorized signatory. 3rd Address : BCL Homes Ltd., Site Office, Chinar Homes, Village Kishanpura, NAC Zirakpur, District Mohali. .. Respondent. Appeal U/S 15 of the Consumer Protection Act,1986 Present: Sh. Gagan, Advocate for the appellant. Sh.Devinder Kumar,Advocate, proxy for Sh.Rajesh Verma, Advocate for the respondent Appeal Case No. 116 of 2012 Date of institution: 09.4.2012 Date of decision : 01.05.2012 M/s BCL Homes Ltd., Regd. Office : Shop No.140, Railway Road, Dariya, UT, Chandigarh. 2nd Address : #253, Sector 7, Panchkula, through its authorized signatory. 3rd Address : BCL Homes Ltd., Site Office, Chinar Homes, Village Kishanpura, NAC Zirakpur, District S.A.S Nagar, Mohali. . Appellant Versus Manju Garg w/o Sanjeev Kumar Garg, r/o House No.74, NPHC, BBMB Complex, Industrial Area, Phase I, Chandigarh. .Respondent Appeal U/S 15 of the Consumer Protection Act,1986 Present: Sh. Devinder Kumar,Advocate, proxy for Sh.Rajesh Verma, Advocate for the appellant. Sh.Gagan, advocate for the respondent. QUORUM : Justice Sham Sunder, President Mrs. Neena Sandhu, Member
Per Justice Sham Sunder , President This order shall dispose of the aforesaid two appeals, arising out of the common order dated 15.2.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint, in the following manner;
As a result of the above discussion, the complaint is partly allowed and the OP is directed to pay interest @ 12% on the amount of Rs.2,50,000/-, from the date of deposit till the amount was retained by the OP. OP is also directed to pay litigation costs of Rs.11,000/- to the complainant. This order be complied with by the OP within one month from the date of receipt of its certified copy.
2. The facts, in brief, are that the complainant deposited a sum of Rs.50,000/- through cheque dated 21.1.2010, on account of pre-launch booking of 3 BHK apartment on 3rd floor, in the proposed project CHINAR HOMES, Village Kishanpura, NAC, Zirakpur. The price of the aforesaid apartment was Rs.33,50,000/-. The complainant also deposited a sum of Rs.1,00,000/- in cash, vide receipt No.233 dated 19.6.2010, and Rs.1,00,000/- vide cheque bearing No.279758 qua receipt No.273 dated 15.7.2010. In November, 2010, it was conveyed by the Opposite Party, to the complainant, that the above said project was not approved by the competent authority. Accordingly, the amount of Rs.2,50,000/- deposited by the complainant, was sent to her, with the undertaking that, in case, the project was approved by the competent authority, in future, then 3 BHK apartment, at the same price, and on the same floor would be allotted to her. It was further stated that the complainant came to know that the aforesaid project had been approved, by the competent authority, and the Opposite Party also started the booking. The complainant sent a letter dated 7.9.2011 Annexure C-4, for the allotment of a flat, on receipt of the price, but to no avail. It was further stated that, thus, the Opposite Party, violated the undertaking given by it. It was further stated that the Opposite Party used the amount of Rs.2.50,000/- deposited by the complainant for about one year, but did not pay any interest throughout. Legal notices were served upon the Opposite Parties, but to no avail.
It was further stated that, by not allotting the flat, on revival of the project, on receipt of consideration, and by not making payment of interest, for the period, the amount deposited by the complainant was retained by the Opposite party, it was deficient, in rendering service, as also indulged into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by her.
3. The Opposite Party, in its written version, pleaded that the complainant did not fall within the definition of a consumer, under the Act, and, as such the Consumer Complaint was not maintainable. It was further pleaded that the complaint involved complicated questions of law and fact and therefore, the controversy could not be properly adjudicated upon, in the summary proceedings, before the Consumer Fora.
It was admitted that the complainant booked a flat against payment of Rs.2.50 lacs, referred to above. It was stated that it was a proposed project. It was further stated that since the project was not approved, but was under
consideration of the Municipal Authority/Government and, on asking of the complainant, the amount, so deposited by her, was refunded to her. It was further stated that once the amount had been refunded to her, the contract between the parties came to an end. It was denied that the Opposite Party gave any assurance/commitment to the complainant, that, in case, the project was revived, the apartment would be allotted, at the same price. It was further stated that once the amount deposited by the complainant was refunded to her, on her asking, and she received the same, without any demur, she could not claim any interest on that amount for the period, it was retained by the Opposite Party. It was further stated that the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The parties led evidence, in support of their case.
5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
6. Feeling aggrieved, First appeal No.93/2012 titled as Manju Garg Vs M/s BCL Homes Ltd. was filed by the appellant/complainant for issuance of a direction to the Opposite Party, to allot the apartment to her, on receipt of the price.
7. First Appeal No.116/2012 titled as BCL Homes Ltd. Vs Manju Garg, was filed by the appellant/Opposite Party, that once the amount of Rs.2,50,000/- was accepted by the complainant, on her request, without any demur, she was not entitled to any interest thereon, and, as such, the order of the District Forum, being illegal, was liable to be set aside.
8. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant, in First appeal No.93/2012 titled as Manju Garg Vs M/s BCL Homes Ltd. submitted that, at the time of refund of amount of Rs.2,50,000/-, when the project of the Opposite Party, had not been approved, an oral undertaking was given by it(Opposite Party) that, in case, the project was revived, she would be allotted a flat, at the original price. He further submitted that the complainant came to know, that the project had been approved and the booking had been started by the Opposite Party, and, as such, the complainant was entitled to the allotment of an apartment, on payment of consideration. He further submitted that, by not allotting an apartment, the Opposite Party violated the oral undertaking. The submission of the Counsel for the appellant, does not appear to be correct. The amount was deposited, by the complainant, at the pre-launching stage of the project. Naturally the required permissions/approvals for developing the project, and raising construction, had not been obtained by the Opposite Party, by that time. Since the project had not taken off, the complainant requested for the refund of the amount, deposited by her. In pursuance thereof, the amount of Rs.2,50,000/- was refunded to her. There is no document, on record, that at the time of refund of the amount, any undertaking was given by the Opposite Party, that, in case, ultimately, the project was revived after the grant of requisite permissions by the competent authorities, she would be entitled to the allotment of an apartment on the original price. Had such an undertaking been given, the same must have been, on the record. It could not be imagined that a Limited Company would give an oral assurance or undertaking to the complainant that it was refunding the amount, on her asking, and, as and when, the project would be revived, she would be allotted a flat at the original price. Once the complainant asked for the refund of amount, deposited by her, on the ground, that the project had not taken off, for want of necessary approvals/permissions by the competent authorities, and the amount was refunded ,and there was no written undertaking for the allotment of a flat, in case, the project was revived later on, she could not turn round, to say, that she was entitled to the allotment of a flat, at the original price. In our considered opinion, the appellant was not at all entitled to the allotment of a flat booked by her, at the pre-launching stage, after the amount deposited by her, was refunded to her on her request. By not allotting the flat, under these circumstances, the Opposite Party was not deficient, in rendering service.
10. The Counsel for the appellant, in First Appeal No.116/2012 titled BCL Homes Ltd. Vs Manju Garg, submitted that, once the amount of Rs.2,50,000/- deposited by the complainant, was accepted by her, as refund, on her own request, on the ground, that the project had not taken off, by that time, she could not file a complaint later on, once the concluded contract came to an end, claiming the relief of interest, on the amount, for the period, it was retained by the Opposite Party. He further submitted that the District Forum could not be used, as a recovery agent , by the complainant. The submission of the Counsel for the appellant, does not appear to be correct.
In the instant case, a sum of Rs.2,50,000/- was deposited, by the complainant, for booking a flat, at the time of pre-launching of the scheme. By the time, she asked for the refund of amount, the project had not taken off, and, on the other hand, it had been abandoned for want of grant of requisite approvals/permissions, by the competent authorities. Once, at a particular stage, a project, in which a booking is made, by the complainant, of a flat, is abandoned, then the Opposite Party/service provider, is required to refund the amount, with interest. The amount of Rs.2,50,000/- was retained by the Opposite Party, illegally and improperly, from the date of deposit of the same, until refund thereof. The appellant/Opposite Party, earned handsome returns, on the said amount, by investing the same. Under these circumstances, the Opposite Party, could not be allowed to be enriched, at the cost of the complainant, by not making the payment of interest. It was held in Ramesh Kumar Dua Vs Ghaziabad Development Authority 2008(1) CLT 560(NC), that when the scheme is cancelled/abandoned, irrespective of the fact, that there was a genuine reason to cancel the same or not, the complainant shall be entitled to the refund of the amount, with interest, from the date of deposit till the time, the same was retained by it (Opposite Party). The principle of law, laid down, in the aforesaid case, is fully applicable to the facts of the instant case. The mere fact, that in the first instance, the refund was accepted by the complainant, did not mean, that she abandoned her claim of interest, which was earned by the Opposite Party, on that amount, by investing the same, but she was deprived of the same. The complainant did not use the District Forum, as a recovery agent. As stated above, at the most, after the refund of amount, the complainant could not turn round and say that she be allotted a flat. However, she was entitled to refund with interest. The District Forum was, thus, right in the allowing interest @ 12% p.a., which could be said to be reasonable, fair and adequate. The submission of the Counsel for the appellant, in this regard, being devoid of merit, must fail, and the same stands rejected.
11. No other point, was urged, by the Counsel for the parties.
12. The order of the District Forum ,does not suffer from any illegality or perversity, warranting the interference of this Commission.
13. For the reasons recorded above, both the appeals, bearing Nos. 93 of 2012 and 116 of 2012, being devoid of merit, must fail, and the same are dismissed, with no order as to costs. The impugned order of the District Forum is upheld.
14. The original order be kept in the file of First Appeal No.93 of 2012 titled as Manju Garg Vs M/s BCL Homes Ltd. and certified copy of the order be placed in the file of First Appeal No.116 of 2012 titled as BCL Homes Ltd. Vs Manju Garg
15. Certified Copies of this order, be sent to the parties, free of charge.
16. The file be consigned to the Record Room, after compliance.
Sd/-
Announced (JUSTICE SHAM SUNDER) May1,2012 President Sd/-
( NEENA SANDHU) Member *Js STATE COMMISSION Appeal case NO.93/2012 Present:
Sh.
Gagan, Advocate for the appellant.
Dated the 23rd April,2012 ORDER Record of the District Forum has already been received.
Admitted.
Mr.Devinder Kumar, Advocate, proxy for Sh.Rajesh Verma, Advocate, who is present, in the connected appeal, having been filed by the appellant (Opposite Party) has put in appearance on behalf of the respondent, in this appeal.
Arguments heard.
Reserved for orders.
(Neena Sandhu) (Justice Sham Sunder) Member President STATE COMMISSION Appeal case NO.93/2012 Present: Sh. Gagan Aggarwal, Advocate for the appellant.
Sh.Devinder Kumar, Advocate, proxy for Sh.Rajesh Verma, Advocate for the respondent.
Dated the ORDER Vide our detailed order of the even date, recorded separately, the appeal has been dismissed, with no order as to costs.
(Neena Sandhu) (Justice Sham Sunder) Member President STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.
Appeal Case No. 116 of 2012 Date of institution: 09.04.2012 Date of decision : 01.05.2012 M/s BCL Homes Ltd., Regd. Office : Shop No.140, Railway Road, Dariya, UT, Chandigarh.
2nd Address : #253, Sector 7, Panchkula, through its authorized signatory.
3rd Address : BCL Homes Ltd., Site Office, Chinar Homes, Village Kishanpura, NAC Zirakpur, District S.A.S Nagar, Mohali.
. Appellant Versus Manju Garg w/o Sanjeev Kumar Garg, r/o House No.74, NPHC, BBMB Complex, Industrial Area, Phase I, Chandigarh.
.Respondent Appeal U/S 15 of the Consumer Protection Act,1986 Present: Sh. Devinder Kumar,Advocate, proxy for Sh.Rajesh Verma, Advocate for the appellant.
Sh.Gagan, advocate for the respondent.
QUORUM :
Justice Sham Sunder, President Mrs. Neena Sandhu, Member Per Justice Sham Sunder , President This appeal has been dismissed, with no order as to costs, in terms of our detailed order of the even date, recorded separately, in connected Appeal No.93 of 2012 titled as Manju Garg Vs M/s BCL Homes Ltd. A copy of that order be placed on this file, which shall form part of this order.
2.
Certified Copies of this order be sent to the parties, free of charge.
3. The file be consigned to the Record Room.
Sd/- sd/-
(NEENA SANDHU) (JUSTICE SHAM SUNDER) Member President Announced 1.5.2012