State Consumer Disputes Redressal Commission
Smt. Pritam Kaur & Anr. vs Shalimar Plaza on 6 March, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.60 of 2012.
Date of Institution: 20.07.2012.
Date of Decision : 06.03.2014.
1. Smt. Pritam Kaur W/o Late Sh. Himmat Singh, R/o # 579, Sector
22-A, Chandigarh, now resident of HM-25, Phase-2, Mohali.
2. Avtar Singh S/o late Sh. Daya Singh, R/o 538, Phase-I, Mohali.
....Complainants.
Versus
Shalimar Plaza, Site No.1, IFP, Phase-VIII-B, IT City, Mohali, through
its Manager.
2nd Address: Shalimar Estates (P) Ltd. Corp. Office: SCO 110-111,
Sector 8-C, Chandigarh, through its Manager.
....Opposite Party.
Consumer Complaint U/s 17 of the
Consumer Protection Act, 1986.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
.................................................... Present:- Sh. Kulwinder Singh, Advocate, counsel for the complainants.
Sh. Arun Kumar, Advocate, counsel for the Opposite Party.
........................................................................... Consumer Complaint No.60 of 2012 2 INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER Smt. Pritam Kaur & Sh. Avtar Singh, complainants (hereinafter called "the complainants") have filed the present complaint U/s 17 of the Consumer Protection Act, 1986 against the opposite party.
2. Facts in brief are that the complainant Pritam Kaur applied for commercial plot of 400 sq.yds. in Shalimar Plaza, opposite party on 17.02.2006 and deposited a sum of Rs.3.60 lacs alongwith application form vide receipt No.1623 dated 17.02.2006. Another sum of Rs.7.20 lacs was deposited on 14.03.2006 vide receipt No.1041 for registration No.RCSM-C-46. The complainants paid five monthly installments of Rs.2.50 lacs each on 31.05.2006, 02.09.2006, 27.11.2006, 02.03.2007 and 06.06.2007. The opposite party issued the receipts in token of the receipt of the amount.
3. As per terms and conditions of the allotment, the opposite party was to give symbolic possession to the allottees whose payment was regular, within two years from the date of issuance of Acceptance- cum-Demand Letter i.e. 28.02.2006, failing which the opposite party was liable to pay Rs.10/- per sq.yd. per month. The complainants visited the site and found that there was no development at the site. The opposite party has, deliberately with malafide intention, taken money from various customers, including the complainants, but has not completed the construction on the site.
4. Complainant no.1, who is widow, has purchased the shop from the opposite party for the purpose of earning her livelihood by means of self employment. Complainant no.1 approached the opposite party to allow complainant no.2 to make the payment alongwith her and Consumer Complaint No.60 of 2012 3 she was allowed. A legal notice was also issued to refund the money, but the opposite party has not refunded any amount.
5. It was prayed that the opposite party may be directed to refund Rs.23.30 lacs and to pay Rs.5.00 lacs as deficiency in service and unfair trade practice, Rs.4,000/- per month from 01.03.2008 till the entire refund of the amount and to pay Rs.33,000/- as litigation expenses.
6. In the written version filed on behalf of the opposite party, preliminary objections were raised that the complaint is not maintainable and is liable to be dismissed with special costs. The opposite party filed Special Leave Petition before the Hon'ble Supreme Court of India and the Hon'ble Supreme Court stayed the operation of the order dated 28.09.2012 passed by the Hon'ble National Commission.
7. The complaint filed by the complainants is false and frivolous and is to defame the opposite party as well as to mislead this Commission. Complicated questions of facts are involved and the civil court is competent. Insufficient court fee has been affixed and this Commission has no jurisdiction to entertain the complaint. There is arbitration clause and all the disputes are liable to be referred to the arbitrator.
8. The project was delayed due to the various persons, not making the payment in time and the opposite party suffered loss. The terms and conditions provided that in case of force-majeure circumstances, the opposite party is not liable to deliver possession. The opposite party wrote a letter dated 06.01.2012, asking the complainants to deposit a sum of Rs.2,61,200/-, but the complainants did not deposit the same.
Consumer Complaint No.60 of 2012 4
9. On merits, it was pleaded that the complainants applied for commercial showroom in the Mall for running commercial activities and also deposited the due amount at the time of filing the application. The payments made thereafter were not disputed. The terms and conditions were also admitted. It was further submitted that the construction of entire 10 storeyed building, including two basements, has already been completed by the opposite party. All outer, inner walls, partitions, plasters, base floorings etc. are also complete. Only the finishing works and fittings of electrical and air conditioning works are in progress. The delay was not on the part of the opposite party, but it was due to force- majeure circumstances and the same was not intentional. The opposite party has already spent huge amount on the project for the construction and development of commercial Shopping Mall. The opposite party received only the part payment from the complainants. The opposite party is also paying damages @ Rs.10/- per sq.ft. per month to the complainants as well as others. Similar other pleas were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
10. Rejoinder was filed in which averments of the complaint were reiterated and that of the written version were controverted.
11. Learned counsel for the complainants tendered affidavit of Smt. Pritam Kaur, complainant no.1 as Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-14.
12. Learned counsel for the opposite party tendered affidavit of Sh. R.K. Aggarwal, M.D. of opposite party as Ex.D-A alongwith documents Ex.D-1 to Ex.D-6.
Consumer Complaint No.60 of 2012 5
13. We have heard and considered the rival contentions of the parties and have minutely scrutinized the entire record and other material placed on the file.
14. The complainant Smt. Pritam Kaur moved application Ex.C-1 for registration of allotment of commercial Showroom in Shalimar Plaza and paid Rs.3.60 lacs on 17.02.2006. Thereafter, the payments were made vide receipts Ex.C-2 to Ex.C-7. Ex.C-8 is the Acceptance-cum-Demand Letter. Copy of the legal notice is Ex.C-9, postal receipts are Ex.C-10 and Ex.C-11. Vide Ex.C-12, the 50% rights in the registration No.RCSM-46 were transferred in the name of Sh. Avtar Singh, complainant no.2. The opposite party has placed on file copy of the order of the Hon'ble Supreme Court Ex.D-1 vide which the interim stay of the operation of the impugned order passed by the Hon'ble National Commission dated 28.09.2012 was granted. Copies of the other orders are Ex.D-2 to Ex.D-4. Ex.D-5 is the call letter for payment of outstanding dues written on 06.01.2012.
15. Special Leave Petition was dismissed by the Hon'ble Supreme Court vide order dated 05.08.2013. Copy of the order has been placed on file. The complainants paid the amount of 23,30,000/- lacs as per receipt Ex.C-1 to Ex.C-7 and as per the Acceptance-cum- Demand Letter, the possession was to be delivered within two years after making the payment of all dues. The complainants made the entire payment way back in the year 2006-2007, but till date the complainants have not been handed over the possession. As per version of the complainants, the site has not been developed. The opposite party has utilized the amount deposited by the complainants, but has failed to deliver the possession and is required to refund the entire amount alongwith interest.
Consumer Complaint No.60 of 2012 6
16. Accordingly, the complaint filed by the complainants is allowed and the opposite party is directed to refund Rs.23,30,000/- (Rupees Twenty Three Lacs & Thirty Thousand) alongwith interest @ 9% Per Annum from the dates of respective deposits, till realization. The opposite party is further directed to pay Rs.30,000/- (Rupees Thirty Thousand) as litigation expenses to the complainants.
17. The opposite party shall comply the order within 45 days of the receipt of copy of the order.
18. The arguments in complaint were heard on 03.03.2014 and the order was reserved. Now the order be communicated to the parties.
19. The complaint could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member March 06, 2014.
(Gurmeet S)