State Consumer Disputes Redressal Commission
Curo India Pvt. Ltd. vs Sh. Rahul Sharma on 9 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 428 of 2013 Date of Institution : 03.10.2013 Date of Decision : 09/10/2013 1. Curo India Pvt. Ltd., through its Managing Director, Corporate Office, K-28, Green Park Extension, New Delhi. 2. Curo India Pvt. Ltd., through its Manager, SCO No.-50-51, First Floor, Sector 9-D, Chandigarh. Appellants/Opposite Parties 1 & 2 V e r s u s Sh. Rahul Sharma son of Sh. Shiv Kumar Sharma, resident of House No.97, Sector-9, Panchkula. Respondent/Complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by:
Sh. Gaurav Bhardwaj, Advocate for the appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 20.08.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it allowed the complaint, filed by the complainant (now respondent), and directed the Opposite Parties (now appellants) as under:-
i) To make payment of interest on the amount of Rs.10.00 lacs deposited by the complainant @9% p.a. from the date of deposit upto 22.1.2013.
ii) To make payment of an amount of Rs.50,000/- to the complainant as compensation for harassment and mental agony suffered by him and unfair trade practice employed by the Opposite Parties.
iii) To make payment of an amount of Rs.7500/- to the complainant towards litigation expenses.
The liability of the Opposite Parties shall be joint and several.
11] This order shall be complied with by the Opposite Parties within one month from the date of receipt of its certified copy, failing which, they shall be liable to pay penal rate of interest @12% p.a. instead of 9% p.a. from the date of deposit upto 22.1.2013. Further, the Opposite Parties shall also make payment of interest @12% p.a. on the compensation of Rs.50,000/-, from the date of filing of the complaint till its realization, besides costs of litigation, as mentioned above.
1.
2. The facts, in brief, are that Rahul Sharma, Complainant was allured by a representative of the Opposite Parties, that they were launching a new project in the name of Curo North Square at Mullanpur (Punjab.) positively, before 30th September, 2011. It was stated that, on the basis of such allurement, the complainant submitted an application for booking a flat alongwith which, cheque in the sum of Rs.5.00 lacs was annexed. Besides this, an amount of Rs.5.00 lacs, in cash was paid by the complainant to the Opposite Parties. Thus, in total a sum of Rs.10.00 lacs, was deposited by the complainant. It was further stated that the Opposite Parties, failed to launch the project as per their commitment by 30.09.2011. It was further stated that on enquiry by the complainant, he was told by the representative of the Opposite Parties, that due to pendency of some clearances by the Government, the project had been delayed and would be launched by 30.03.2012.
It was further stated that the project was not launched even by 30.03.2012, and it was told, that the same would be launched by 30.06.2012 It was further stated that the Opposite Parties, again failed to launch the project, by 30.06.2012. It was again promised that the project would be launched by 31.08.2012. It was further stated that, when the Opposite Parties did not start the project, the complainant submitted an application dated 07.01.2013 (Annexure C-5) and also sent an e-mail dated 07.01.2013 for the refund of amount alongwith interest. It was further station that again an e-mail dated 21.01.2013 (Annexure C-6) was sent, but no response was received from the Opposite Parties. It was further stated that the Opposite Parties, refunded the amount deposited by the complainant, without interest, on 22.01.2013. It was further stated that the Opposite Parties, cheated the general public including the complainant, by making false commitments, for launching the project. It was further stated that the Opposite Parties, refused to pay interest and compensation for mental agony and physical harassment. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, 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, claiming various reliefs.
3. The Opposite Parties, in their written statement, pleaded that the complainant did not fall within the definition of a consumer. It was further pleaded that the complainant misled the District Forum by annexing the incomplete application form. A true copy of the complete application form, duly signed by the complainant, was produced as Annexure R-1. It was stated that, as per the payment schedule, mentioned in the application form, the complainant was required to deposit Rs.25.00 lacs, for booking. It was further stated that the complainant paid only a sum of Rs.10.00 lacs against the booking amount of Rs.25.00 lacs.
It was further stated that the complainant was, thus, not eligible to be considered for any allotment or booking in the project/plan of the Opposite Parties. It was further stated that a mere application for allotment did not confer any right till the allotment was made. It was further stated that the project of the Opposite Parties, was granted necessary sanction/approval vide letter No.6872 CTP (Punjab/SC 122), dated 03.09.2009, by the Punjab Government. It was further stated that the name in the letter of sanction was mentioned as M/s Dynamic Continental Pvt. Ltd., but the said Company had been converted into Curo India Pvt. Ltd. on 29.12.2010 (Annexure R-3). It was stated that the complainant asked for refund of Rs.10.00 lacs. It was further stated that the Opposite Parties, were legally entitled not to return the amount deposited, but being well acclaimed builders, they returned the amount, and cancelled the application, for booking submitted by the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they 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, the instant appeal, was filed by the appellants/opposite parties.
7. We have heard the Counsel for the appellants/opposite parties, at the preliminary stage, and have gone through the evidence, and record of the case, carefully.
8. The Counsel for the appellants/Opposite Parties, submitted that since the complainant had only moved an application, for the booking of a flat, and deposited a sum of Rs.10.00 lacs, against the prescribed sum of Rs.25.00 lacs. He further submitted that since the complainant had not been allotted the flat, he did not fall within the definition of a consumer, and, as such, the complaint was not maintainable. He further submitted that the Opposite Parties, never committed to the complainant, that the project was to be launched on a particular date. He further submitted that the Opposite Parties, had the requisite sanctions, for launching of the Project, in question. He further submitted that when the complainant asked for the refund of amount, the same was refunded to him on 22.01.2013. He further submitted that the complainant was neither entitled to interest, on the amount already refunded nor to any compensation. He further submitted that the District Forum was wrong in holding to the contrary. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
9. The first question, that requires consideration, is, as to whether, the complainant fell within the definition of a Consumer, as defined by Section 2(1)(d) of the Act. Admittedly, the complainant booked a flat, and deposited the booking amount, to the tune of Rs.10.00 lacs, referred to above. The moment, the complainant booked a flat, and deposited the booking amount of Rs.10.00 lacs, towards the same, the Opposite Parties, started rendering service to him. In the Tamil Nadu Housing Board and Anr. Vs. A.V. Ramakrishna, III (1994) CPJ 137 (NC), a case decided by a three Member Bench of the Honble National Consumer Disputes Redressal Commission, New Delhi, the principle of law, laid down, was to the effect, that a potential user who applied for the allotment of a flat/plot, and deposited the registration fee, fell within the definition of a consumer, as the Opposite Parties started rendering service, to him/her, right from the day, the application for the same was moved. Not only this, in Virender Jain Vs. Alaknanda Cooperative Group Housing Society Limited, 2013 (3) Recent apex Judgments (R.A.J.) 528 (S.C.)= 2013 (2) R.C.R. (Civil) 980 (S.C.), it was held that by making applications, for allotment of land, the Societies would be deemed to have hired or availed of the services of the Chandigarh Administration, and the Board, in relation to housing construction, as elucidated and explained in Lucknow Development Authority Vs. M.K. Gupta, Civil Appela No.6237 of 1990 = III(1993)CPJ 7 (SC)= AIR 1994 787=1994 SCC (1)
243. In Chandigarh Housing Board Vs. Avtar Singh and Others, 2010 (4) RCR Civil 579 SC, the same principle of law, was laid down. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the instant case. In the instant case also, as stated above, the complainant moved an application, for allotment of a flat, and deposited booking amount, to the tune of Rs.10 lacs. The complainant, thus, hired the services of the Opposite Parties, as a potential user, for consideration, and, thus, he fell within the definition of a consumer, contained in Section 2(1)(d) of the Act. The submission of the Counsel for the appellants, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
10. No doubt, the Counsel for the appellants, placed reliance on Punjab Urban Planning and Development Authority and Another Vs. Krishan Pal Chander, 2010(1) CPJ 99 (N.C.), to contend that mere moving of an application, for the allotment of a flat, did not give any right to allotment, and , as such, the complainant did not fall within the definition of a consumer. In view of the principle of law, laid down, in the Tamil Nadu Housing Board, Virender Jain and Chanidgarh Housing Boards cases (supra), the principle of law, laid down, in Punjab Urban Planning and Development Authority and anothers case (supra), decided by a two Member Bench of the National Consumer Disputes Redressal Commission, New Delhi, shall not hold the field. No help, therefore, can be drawn, by the Counsel for the appellants, from Punjab Urban Planning and Development Authority and anothers case (supra), The submission of the Counsel for the appellants, therefore, being devoid of merit, must fail, and the same stands rejected.
11. The Opposite Parties, certainly indulged into unfair trade practice. The complainant was allured by the misrepresentation, made by a representative of the Opposite Parties, that the project was going to be launched on 30.09.2011, and, accordingly, he moved an application for the allotment of a flat, and deposited the booking amount, aforesaid. However, the project was not even launched upto 30.03.2012. When inquiry was made from the Opposite Parties, the complainant was told that it would be launched by 30.06.2012. Again the project was not launched by 30.06.2012. Further commitment was made by the Opposite Parties, that the same would be launched by 31.08.2012. No doubt, the Opposite Parties denied that any commitment by their representative, with regard to the launch of project, by the aforesaid dates, was made to the complainant, yet, the same does not appear be correct. A person who applies for booking of a flat, is always eager to know, as to when the project would be launched, as he is investing hard earned money, by way of depositing the booking/earnest money. Had the commitments, aforesaid, been not made, by the representative of the Opposite Parties, regarding the date on which the project was to be launched, the complainant would not have made the averment, in the complaint duly corroborated through his affidavit, submitted by him. The fact remains that the project was not launched as various approvals/clearances had not been granted by the Competent Authorities, for launching the same. No doubt, the Opposite Parties, in their written version, stated that they had obtained the requisite approvals/clearances, for launching the project, yet their such stand is belied from Annexure R-2, a letter from the Chief Town Planning Officer, Punjab, Chandigarh to M/s Dynamic Continental Pvt. Ltd., K-28, Green Park Extension, New Delhi, which was later on converted into Curo India Pvt. Ltd. The perusal of copy of the letter, Annexure R-2, dated 03.09.2009, clearly shows that approval of building plans for hotel at Mullanpur Garibdas (area 7.348 Acs.) was granted to M/s Dynamic Continental Pvt. Ltd. No approval was accorded by the Competent Authority, to launch the project for construction of flats, in which the complainant had moved an application for booking. Since the Opposite Parties had no approvals/clearances from the State Government for launching the project, in question, it could be very well presumed that they could not launch the same. The Opposite Parties without obtaining the necessary approvals/clearances, for launching the project, mislead the potential users, including the complainant, and fleeced them of their hard earned money and kept on using the same. The District Forum was might in holding that the Opposite Parties, indulged into unfair trade practice.
12. No doubt, the amount of Rs.10.00 lacs, deposited by the complainant was refunded to him on 22.1.2013 by the Opposite Parties. However, the Opposite Parties, utilized the hard earned money of the complainant, which was deposited by him, being the booking amount, and earned profits thereon. They had no legal right, to retain the amount, paid by the complainant, for booking of the flat, especially when they initially committed that they had got the necessary clearances, for launching the project, which representation was completely wrong and misleading. Had the amount been immediately refunded to the complainant, he would have utilized the same, or deposited the same, in the bank and earned interest thereon. The complainant was, thus, caused financial loss on account of the acts of omission and commission of the Opposite Parties. The complainant was, thus, entitled to interest on the amount of Rs.10.00 lacs. The District Forum, was right in awarding interest @9%p.a. from the date of deposit of Rs.10.00 lacs, with the Opposite Parties upto 22.01.2013 (date of refund of the amount). The findings of the District Forum, in this regard, being correct are affirmed. The submission of the Counsel for the appellants, in this regard, being devoid of merit, must fail, and the same stands rejected.
13. The next question, that falls for consideration, is, as to whether, the complainant was entitled to compensation or not. The complainant booked a flat, on the representation made by a representative of the Opposite Parties, that they were going to launch the project, and, thus, he deposited the amount of Rs.10.00 lacs. The complainant always entertained a hope that the project, would be launched immediately and he would be allotted a flat, so as to enable him to reside therein. One can really imagine the plight of a person, who had deposited his hard earned money, to the tune of Rs.10.00 lacs, on the misrepresentation and misleading statements made by the Opposite Parties, that they had obtained the necessary approvals/clearances for launching the project, but, ultimately, came to know that no such approvals for launching the said project, had been obtained. Under these circumstances, the complainant underwent a lot of mental agony and physical harassment as also injustice was done to him. The complainant was, thus, entitled to compensation. The District Forum was right in awarding compensation in the sum of Rs.50,000/- to the complainant. The findings of the District Forum, in this regard, being correct are affirmed. The submission of the Counsel for the appellants/Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
14. No other point, was urged, by the Counsel for the appellants/Opposite Parties.
15. In view of the above discussion, it is held that the order passed by the District Forum, being based, on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission. The same is liable to be upheld.
16. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
17. Certified copies of this order, be sent to the parties, free of charge.
18. The file be consigned to Record Room, after due completion.
Pronounced.
9th October, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Gp STATE COMMISSION (First Appeal No.428 of 2013) Argued by:
Sh. Gaurav Bhardwaj, Advocate for the appellants.
Dated the 9th day of October 2013 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Gp