State Consumer Disputes Redressal Commission
Curo India Pvt. Ltd., vs Smt.Uma Kansal on 2 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 239 of 2013 Date of Institution : 04.06.2013 Date of Decision : 02.08.2013 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 V e r s u s Smt.Uma Kansal wife of Sh.S.K.Kansal, resident of House No.833, Sector 8, Panchkula. ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Pt. Randhir Sharma, Advocate for the appellants.
Sh. Ranjit Singh Dhiman, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 03.05.2013, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-
For the reasons recorded above, we find merit in the complaint and the same is allowed. The Opposite Parties are directed :-
i) To make payment of interest on the amount of Rs.10 lacs deposited by the complainant @9% p.a. from the date of deposit upto 3.12.2012.
ii) To make payment of an amount of Rs.50,000/- to the complainant as compensation for harassment, mental agony suffered by her and unfair trade practice employed by the Opposite Parties.
ii) 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.
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 3.12.2012.
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.
2. The facts, in brief, are that the complainant was made to understand, by the representative of the Opposite Parties, that they (Opposite Parties), were going to launch a new project, in the name of Curo North Square at Mullanpur (Punjab), before 30.09.2011. Allured by such representation, the complainant submitted an application, copy whereof is Annexure C-1, alongwith which, an amount of Rs.5 lacs, in cash, was also paid by her, against receipt Annexure C-2, on 29.03.2011. Another amount of Rs.5 lacs, was paid by the complainant, to the Opposite Parties, through cheque No.585116 dated 24.03.2011, drawn on the Bank of Maharashtra. However, the Opposite Parties failed to launch the Project, as per their commitment, by 30.09.2011. On inquiry, the complainant was told by the representative of the Opposite Parties, that due to the pendency of some clearance, by the State Government, the project had been delayed, and would be launched, by 30.03.2012. The project was not even launched by 30.03.2012, and on further enquiry, it was told by the Opposite Parties, that the project would be launched by 30.06.2012. When the Opposite Parties failed to launch the project, by 30.06.2012, the complainant requested them for the cancellation of booking of flat, and refund of the booking amount alongwith interest, but their representative, again assured to launch the project, by 31.08.2012. Since the Opposite Parties did not launch the project, the complainant submitted an application dated 09.06.2012, copy whereof is Annexure C-3, for refund of the booking amount, alongwith interest. Emails were also sent by the complainant, to the Opposite Parties, but no response was received by them.
3. Ultimately, a notice dated 20.11.2012, through registered post, copy whereof is Annexure C-4, was sent by the complainant, to the Opposite Parties, for redressal of her grievance, in response to which, letter dated 03.12.2012 Annexure C-5, was received from them, stating therein that since she had not deposited the amount of second installment, towards the price of flat, to the tune of Rs.15 lacs, within 45 days, of receipt of the application, inspite of the demand raised vide notice dated 11.5.2011, the booking of the same (flat), was cancelled and the amount stood forfeited. It was further intimated that the Opposite Parties, however, decided that despite forfeiture of the booking amount of Rs.10 lacs, deposited by the complainant, he be refunded the same (amount), without interest. It was further stated that, in the aforesaid reply, it was also proclaimed, by the Opposite Parties that they never committed to launch the project, on or before 30.9.2011, 30.03.2012 or 30.06.2012.
4. It was further stated that by misleading the prospective allottees, that the necessary approvals/ clearances had already been obtained, for launching the project, in question, the Opposite Parties duped them, of their hard earned money. 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 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, directing the Opposite Parties, to pay interest @24% p.a., on the amount of Rs.10 lacs, refunded on 03.12.2012, without interest, from March 2011 to December 2012; miscellaneous expenses to the tune of Rs.1,000/-; compensation to the tune of Rs.5 lacs, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.11,000/-.
5. The Opposite Parties, in their joint written version, pleaded that the complainant did not fall within the definition of a consumer, as she had not been allotted the flat. It was further pleaded that the facts narrated in the complaint did not constitute a consumer dispute. It was stated that the complainant, invested her money, by making an expression of interest, in the provisional booking of unit, with a view to sell the same, as and when there was escalation, in the prices of real estate, to gain huge profit. It was further stated that the amount of Rs.10 lacs, as booking amount, deposited by the complainant, was refunded to her. 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.
6. In the replication, filed by the complainant, it was stated by her that she invested the money, with the Opposite Parties, for having a residential accommodation, for her own residence, but due to the unfair trade practice adopted by them, her hard earned money, was used by them, for their own benefit, and they refunded the same, without paying any interest thereon, to her.
7. The Parties led evidence, in support of their case.
8. 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.
9. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
10. We have heard the Counsel for the parties, and, have gone through the evidence, and record of the case, carefully.
11. 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 lacs, as booking amount, and no allotment had been made, in her favour, she did not fall within the definition of a consumer. He further submitted that the flat was booked by the complainant, with a view to gain huge profits, after the sale thereof, in the event of escalation in prices, of real estate. He further submitted that the remaining installments, towards the price of the said flat were not deposited by the complainant, and, as such, the Opposite Parties were legally right to cancel the allotment thereof. He further submitted that the Opposite Parties did not indulge into unfair trade practice. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
12. On the other hand, the Counsel for the respondent/complainant, submitted that, as soon as, an application for booking of the flat, was moved, by the complainant, on the representation, made by the representative of the Opposite Parties, and booking amount was deposited, she fell within the definition of a consumer. He further submitted the Opposite Parties indulged into unfair trade practice, by making misleading representations, to the complainant, that the project would be launched by 30.09.2011 and, thereafter, on 30.03.2012 and 30.06.2012, though ultimately, it was found that the necessary approvals/clearances had not been granted, by the State Government, to the Opposite Parties, for launching the project, in question. He further submitted that by misleading the prospective allottees, the Opposite Parties dumped the said project. He further submitted that though the amount deposited by the complainant was refunded to her, yet the Opposite Parties, used the same and earned huge returns thereon, and, as such, the complainant was entitled to interest, on the amount of refund. He further submitted that the complainant also suffered a lot of mental agony and physical harassment and was entitled to compensation also. He further submitted that the order of the District Forum, being legal and valid, is liable to be upheld.
13. First coming to the question, as to whether, the complainant fell within the definition of a consumer or not, it may be stated here, that she was certainly a consumer. The complainant booked a flat and deposited the booking amount, to the tune of Rs.10 lacs, referred to above. The moment, the complainant booked a flat, and deposited the booking amount of Rs.10 lacs, towards the same, the Opposite Parties started rendering service, to her. In the Tamil Nadu Housing Board and Anr. Vs. A.V. Ramakrishnan, III (1994) CPJ 137 (NC), a case decided by a three Member Bench of the Hon`ble 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 her/him, being a potential user, right from the day, the application for the same is 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 Appeal 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 principle of law, laid down, was also to the effect, 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 the housing construction. 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, she fell within the definition of a consumer. The submission of the Counsel for the appellants, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
14. No doubt, the Counsel for the appellant, 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/plot 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 Chandigarh Housing Board`s cases (supra), the principle of law, laid down, in Punjab Urban Planning and Development Authority and another`s 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 another`s case (supra). The submission of the Counsel for the appellants, therefore, being devoid of merit, must fail, and the same stands rejected.
15. The Opposite Parties, certainly indulged into unfair trade practice. The complainant was allured by the misrepresentation, made by the representative of the Opposite Parties, that the project was going to be launched on 30.09.2011, and, accordingly, she moved an application for the allotment of a flat, and deposited the booking amount, aforesaid. However, the project was not even launched upto 30.06.2012, for the reason, that necessary approvals/clearances had not been granted, by the State Government, for launching the same. Had any approval/clearance been granted, by the State Government, for launching the project, copy thereof, must have been produced by the Opposite Parties, on record. In the absence of production of any documentary evidence, on record, regarding the grant of approval/ clearance, by the State Government, for launching the project, it could very well be presumed that no such approval was granted. Thus, 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. In this view of the matter, the Opposite Parties clearly indulged into unfair trade practice. The District Forum, was, thus, right in holding so.
16. No document was produced, on the District Forum record, to the effect, that any notice was given to the complainant, by the Opposite Parties, for depositing the remaining booking amount, towards the price of flat. Even, no document, was produced by the Opposite Parties, in the District Forum, that as per the terms and conditions of the application form, in case, the remaining amount, towards the price of flat, was not deposited, the booking amount, deposited by her, would be forfeited. It was, under these circumstances, that the Opposite Parties, took a correct decision, to refund the amount deposited by the complainant and, ultimately, refunded the same on 03.12.2012. However, the Opposite Parties, utilized the hard earned money of the complainant, which was deposited by her, being the booking amount, for sufficient longer period. They were, therefore, liable to pay interest, on the said amount. The District Forum, was, thus, right in granting interest to the complainant.
17. A lot of mental agony and physical harassment, was caused to the complainant, at the hands of the Opposite Parties, on account of non-launching of project, by them, even by 30.06.2012, though, it was committed to be launched by 30.09.2011. It was, on account of the reason that necessary approvals/clearances had not been granted, by the State Government to them, for launching the said project. One can really imagine the plight of a person, who had deposited her hard earned money, to the tune of Rs.10 lacs, for the allotment of a flat, to reside therein, but, ultimately, the project was not launched. The District Forum was, thus, right, in awarding compensation, to the tune of Rs.50,000/-, for mental agony and physical harassment, suffered by the complainant, and for unfair trade practice adopted by the Opposite Parties. Compensation awarded by the District Forum, could not be said to be excessive, unfair or unreasonable, but, on the other hand, it could be said to be fair, reasonable and adequate.
18. No other point, was urged, by the Counsel for the parties.
19. 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.
20. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
21. Certified copies of this order, be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion.
Pronounced.
August 2, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg