State Consumer Disputes Redressal Commission
Anil Kumar Jain vs The Indian Co-Operative House Building ... on 16 March, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint : 495 of 2016 Date of Institution : 22.08.2016 Date of Decision : 16.03.2017 Sh. Anil Kumar Jain S/o Sh. Kesari Dass Jain R/o BXII 1642, Moti Bazar, Malerkotla, Distt. Sangrur. ......Complainant. Versus The Indian Cooperative House Building Society Ltd., SCO 156-157, Sector 37-C, Chandigarh through its President Sh. Ajay Sehgal. The Indian Cooperative House Building Society Ltd., above Oriental Bank of Commerce, Chandigarh road, Mullanpur (New Chandigarh) through its President Sh. Ajay Sehgal. Indian Township Pvt. Ltd., SCO 156, Sector 37-C, Chandigarh through its authorized representative. ....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by:
Ms. Meena Bansal, Advocate for the complainant.
Sh. Balwinder Singh Sehra, Advocate for Opposite Parties No.1 & 2.
Opposite Party No.3 exparte vide order dated 24.10.2016.
PER DEV RAJ, MEMBER The facts, in brief, are that being allured by the commitment of the Opposite Parties, the complainant became member of Society of Opposite Parties and applied for a residential plot of 250 sq. yards category situated at Mullanpur with the desire to have his own house for self-living. He was assured that all necessary approvals had been taken by the Opposite Parties. He was handed over a cost and payment schedule at the time of booking. The payment plan was from 5th February to 1st October 2011. He was also assured that possession of the plot would be handed over within a period of 24 months from the date of booking. The complainant paid the initial two installments as also the admission cum share money to get allotment of membership of society and issuance of share certificate. Demand qua 3rd and 4th installments was also raised vide letter dated 20.07.2011, which were due on 01.06.2011 and 01.07.2011. Vide letter dated 23.03.2012, the complainant was informed that the Society had already applied for Mega project approval and after approval, draw would be held for allotment of plot to eligible members and a demand of Rs.11,25,000/- was raised by the Opposite Parties, which the complainant paid.
2. Further vide letters dated 12.03.2014 and 02.04.2014, the Opposite Parties informed the complainant that the Punjab Government had granted CLU to the Society vide letter No.1489 CTP (PB) SP 432LM dated 04.03.2014. Vide letter dated 03.06.2014 (Annexure C-11), the complainant was informed that permission for CLU had been granted to the Society for its project located in Sector 4-E, New Chandigarh (Mullanpur) and the Society was in process of finalizing the layout plan and a demand of Rs.2,000/- per sq. Yard was raised from the complainant for CLU, IDC, EDC, Licence Fee, land enhancement charges and late payment interest, if any.
3. The complainant, in all, paid an amount of Rs.27,49,510/- uptil 30.06.2014, as per detail given in Para 16 of the complaint as under:-
Date Payments made (Rs.) 11.02.2011 (1st Installment) 5,62,500.00 06.05.2011 (2nd Installment) 5,62,500.00 11.05.2011 (Admission cum share money) 510.00 15.04.2014 (Demand raised vide letter dt. 23.03.2012) 11,25,000.00 11.06.2014 2,50,000.00 30.06.2014 2,50,000.00 Total 27,49,510.00
4. It was further stated that vide letter dated 17.06.2014 (in fact 17.06.2016, Annexure C-13), and letter dated 19.07.2016, the Opposite Parties informed the complainant that CLU had been awarded to the Society vide letter No.2629 CTP (PB) SP 432 LM dated 03.06.2016 by the Deptt. of Town & Country Planning, Punjab and the Society had deposited payment of CLU, processing fees, SIF charges, Licence fees, with the concerned department and the next step was the approval of layout plan of the residential township (Suntec City), Sector 22, New Chandigarh. A notice was also sent to the complainant raising demand of Rs.5 Lacs for part payment of CLU, IDC and EDC, Licence Fee, land enhancement charges and interest.
5. It was further stated that after perusal of letters dated 12.03.2014 and 03.06.2014 aforesaid, the complainant came to know that the Opposite Parties were making fool of him. The complainant personally visited the office of the Opposite Parties with a request to refund the entire amount paid by him but they did not pay any heed to his requests. Feeling helpless, dissatisfied and mentally harassed, the complainant wrote letter dated 25.07.2016 to the Opposite Parties seeking refund of his hard earned money but to no avail.
6. Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) claiming refund of Rs.27,49,510/- alongwith prevailing rate of interest from the date of deposit till realization; Rs.3,00,000/- on account of mental harassment and deficiency in service and Rs.50,000/- as cost of litigation.
7. Opposite Parties No.1 & 2, in their written statement, took up a preliminary objection that this Commission did not have the territorial jurisdiction to entertain and try the complaint as the Society is registered in the office of Assistant Registrar, Cooperative Societies, Mohali and the land, out of which the plots are to be carved and further allotted to members, is also situated in District Mohali.
8. On merits, it was stated that the complainant approached the Society for allotment of plot measuring 250 sq. yards and alongwith application form, he was supplied the copy of payment schedule. It was further stated that the complainant also gave an undertaking that he would pay all installments, licence fee, CLU, EDC, IDC and other development charges, as and when demanded by the Society as per payment schedule. It was further stated that the Society applied for change of land use before GAMADA which was sanctioned vide letter dated 04.04.2014 subject to payment of requisite fee. It was further stated that number of members defaulted in making the said payment and thereafter, the present members of Managing Committee arranged the amount at their own level and paid a sum of Rs.10 Crores approximately as fee. It was further stated that the society was informed vide letter bearing No.2629 CTP(PB)/SP-432 dated 03.06.2016 regarding the issuance of Change of Land Use (Annexure R-3). It was further stated that the Society had prepared the site plan and had sent the same to the competent authority for sanctioning. It was further stated that after sanctioning of site plan, the Society will make allotment of plots in draw of lots.
9. It was further stated that the answering Opposite Parties never assured the complainant of handing over the possession of plot within 24 months. It was stated that the possession of plot can only be given after the site plan has been approved and sanctioned by the competent authority, for which, the Society is pursuing with the competent authority. Issuance of letter dated 19.07.2016 by the Society to the complainant has been admitted. It was denied that the complainant personally visited the office of the society for refund of money paid by him. Issuance of legal notice to the Society has been admitted. It was further stated that the Society is governed and supervised by the provisions of the Act, Rules, Bye-Laws framed under the Act and the instructions dated 22.10.2008 issued by the Registrar, Cooperative Societies, Punjab, Chandigarh, under Rule 45 of the Punjab Cooperative Societies Act, 1963. It was further stated that as per those instructions, the refund of money will be made to the members after forfeiting a certain amount depending upon the situation regarding the pecuniary loss caused to the Society by the default of the said member. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 & 2, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
10. Notice of motion was sent to Opposite Party No.3 on 14.09.2016. When none put in appearance on its behalf on 05.10.2016, to await service, the matter was adjourned to 24.10.2016. On the said date i.e. 24.10.2016, when again nobody appeared on behalf of Opposite Party No.3, in terms of Regulation 10(2) of Consumer Protection Regulations 2005, it (Opposite Party No.3) was ordered to be proceeded against exparte.
11. The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of Opposite Parties No.1 & 2.
12. The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.
13. Opposite Parties No.1 & 2 filed examination-in-chief by way of affidavit of Mr. N. K. Puri, Member of the Society on behalf of Opposite Parties No.1 & 2.
14. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
15. It is evident from Membership Application Form (Annexure R-1) that the complainant applied for a 250 sq. yard plot in Indian Cooperative House Building Society Ltd. (Opposite Parties No.1 & 2), total price whereof, as per cost and detail of payment (Annexure R-1 at Page 10), @Rs.9,000/- per sq. yard, was in the sum of Rs.22,50,000/-. The said price was excluding IDC, EDC, CLU, Licence Fee and late payment interest, if any. The complainant paid the total cost of the plot in the sum of Rs.22,50,000/- on the dates indicated in Para 3 above. 50% of the price of the plot was paid by the complainant during February & May 2011, within 3 months of making application/booking. The complainant also paid a sum of Rs.5 Lacs i.e. Rs.2,50,000/- on 11.06.2014 + Rs.2,50,000/- on 30.06.2014, towards IDC, CLU charges etc. The payments aforesaid have been admitted by Opposite Parties No.1 & 2 in Para 16 of their written statement. Besides paying total price of plot in the sum of Rs.22,50,000/- at the rate of Rs.9,000/- per sq. yard; the complainant has additionally paid a sum of Rs.5 Lacs @Rs.2,000/- per Sq. Yard towards IDC, CLU charges etc. Opposite Parties No.1 & 2 further demanded a sum of Rs.5 Lacs, which meant that the total amount towards IDC, CLU charges etc. would come to Rs.4,000/- per sq. yard, which is almost 45% of the cost of the plot. Nothing was mentioned in the payment schedule as to what would be the quantum of CLU, IDC charges etc. The schedule of payment only indicated payment within 240 days and price @Rs.9,000/- per sq. yard was excluding CLU, IDC charges etc. This in itself is an act of unfair trade practice by the Opposite Parties. The complainant paid Rs.5 Lacs in June 2014 when demand for the same was raised by Opposite Parties No.1 & 2 vide letters dated 12.03.2014 & 02.04.2014 (Annexure C-9) informing the complainant that the Punjab Government had granted CLU to the Society vide letter No.1489 CTP (PB) SP 432 LM dated 04.03.2014, whereas the fact is that effectively CLU was granted vide Memo No.2629 CTP (PB) SP 432 LM dated 03.06.2016 (Annexure R-3). Perusal of the aforesaid letter dated 03.06.2016 also reveals that CLU charges in the sum of Rs.2,07,01,173/-, Rs.2,00,00,000/-, Rs.2,00,00,000/-, Rs.44,46,827.20 and Rs.24,86,000/-, Rs.32,57,400/-, totaling Rs.7,08,91,400.20 were deposited on 03.06.2016. It, therefore, means that the complainant paid the CLU charges in June 2014, whereas Opposite Parties No.1 & 2 remitted such charges to the Government after almost two years. Further while as per Annexure C-11, project is said to be located in Sector 4-E, New Chandigarh (Mullanpur), as per Annexure C-14, approval of layout plan is for Sector 22, New Chandigarh.
16. The sole preliminary objection raised by Opposite Parties No.1 &2 is that this Commission did not have the territorial jurisdiction to entertain and try the complaint as the Society is registered in the office of Assistant Registrar, Cooperative Societies, Mohali and the land, out of which the plots are to be carved and further allotted to members, is also situated in District Mohali. It may be stated here that in Consumer complaints, territorial jurisdiction is to be determined in accordance with the provisions of the Act. According to Section 17 of the Act, a consumer complaint could be filed by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. In the instant case, it is evident that letter dated 15.04.2011 (Annexure C-3), raising demand qua second installment, was sent by the Society to all the applicants, including the complainant, from its Chandigarh address i.e. "The Indian Cooperative House Building Society Ltd., SCO 157, First Floor, Sector 37-C, Chandigarh, Phone: 0172-4061743." Further, the Receipts (Annexures C-2, C-4 and C-5) were also issued from the same address of Chandigarh. Since a part of cause of action, arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that, for determining the territorial jurisdiction, to entertain and decide the complaint, the Consumer Foras are bound by the provisions of Section 11/17 of the Act. The objection taken by the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
17. The core question which falls for consideration, is, as to whether there is delay in holding draw for allotment of plots and delivery of possession to the complainant within a period of two years as averred by the complainant and whether the complainant is entitled to refund of the amount deposited by him, interest thereon and compensation for mental agony, physical harassment and deficiency in service. The complainant has specifically averred that possession of the plot was to be delivered within a period of 24 months from the date of booking. It is a fact that the complainant made entire payment towards cost of the plot during the period 11.02.2011 till 15.04.2014. The last payment in the sum of Rs.11,25,000/- was made on 15.04.2014 when demand for the same was raised vide letter (Annexure C-8). Thus, when entire payment was made by the complainant, Opposite Parties No.1 & 2 were certainly liable to allot plot and offer possession after obtaining CLU and approval of layout. What to talk of offer of possession, even draw of lots has not been held for allotment of plot as on date. It may be stated here that in letter dated 23.03.2012 (Annexure C-8), the complainant was informed as under:-
"1. We advise that your society has already applied for Mega Project Approval with the concerned authorities and after approval draw may be held for allotment of plot to the eligible members, whose payment has already been received in full, in the first lot.
2. As per our record a sum of Rs.11,25,000 + interest is due from you. Therefore, you are requested to pay the entire amount immediately, so that your name may be got included in the first lot. We also advise that in addition to the above payment, charges such as License Fees, CLU, EDC & other development charges will also be payable on demand.
3. Members who have not paid the full consideration of the plot, which is long overdue, since 1st October 2011, shall be liable to pay not only penal interest on the payment due but they have to pay higher amount, due to cost escalation of land which will be decided by the management of the society.
4. Alternatively, in accordance with the Act, Rules & the Registered Bye Laws of the Society, in case the due Payment is not received within the stipulated time, the application for membership of the society and allotment of plot may be rejected and money paid to the society will be refunded after deducting 10% of the deposit lying with the society after completing the necessary formalities.
5. Request for readmission will not be entertained."
18. The complainant complied with the direction of Opposite Parties No.1 & 2 by making payment of Rs.11.25 Lacs but still draw of lots for allotment was not held, what to speak of offer of possession. Thereafter, Opposite Parties No.1 & 2 vide letter dated 12.03.2014 (Annexure C-9), informed the complainant that they have been granted CLU by the Punjab Govt. vide letter dated 04.03.2014 and asked him (complainant) to pay Rs.2,000/- per sq. yard as part payment of CLU, IDC, EDC, License Fee, Enhancement Charges etc. so that the amount could be deposited with the Punjab Govt. and development started.
19. It is noted from the contents of aforesaid letter that Opposite Parties No.1 & 2 misled the complainant and wrongly informed him that they (Opposite Parties No.1 & 2) have been granted CLU by Punjab Government whereas the fact is that CLU was granted only on 03.06.2016. CLU could be granted only after the CLU charges were deposited. When Opposite Parties No.1 & 2 did not deposit the CLU charges, in March 2014, the question of grant of CLU in March, 2014 did not arise. Believing the contents of letter dated 12.03.2014 to be correct and true, the complainant deposited a sum of Rs.5 Lacs towards payment of CLU, IDC, EDC, Licence Fee etc. Thus, despite payment of full price of the plot and part CLU charges totaling Rs.27,49,510/-, Opposite Parties No.1 & 2 not only delayed the draw of lots and offer of possession but also indulged into unfair trade practice, by not depositing the CLU with the State Govt. for a period of almost two years. An adverse inference is drawn against Opposite Parties and the fact of retaining and utilizing part payment in the sum of Rs.5 Lacs received by Opposite Parties in June 2014 and depositing the same with the Punjab Govt. in June 2016 amounts to indulgence into unfair trade practice and deficiency in rendering service. Opposite Parties could not equate the complainant, who had made full payment of the plot, in question, and 50% of CLU charges, with other Members who did not make full payment of plot price and part payment of CLU charges. There is, thus, clear delay in allotting plot and offering possession to the complainant.
20. The plea of Opposite Parties No.1 & 2 in Para 3 in preliminary objections of written statement that number of members defaulted in making payment and the members of the Managing Committee arranged the amount at their own level and paid Rs.10 Crore approximately as fee, in the absence of cogent evidence, is not acceptable. If a number of members defaulted in making the payment, the Managing Committee was required to take action against them by cancelling and forfeiting 10% of the amount. Even as per letter dated 03.06.2016, under which, CLU was granted, the Society has, in all, paid a sum of Rs.7 Crore approx. As indicated by the Counsel, during arguments, there are around 500 members of the Society and even at the rate of part payment towards CLU etc., assuming that the plots are of 250 sq. yard [though the plots are of bigger size also as per C-I], the society would have got a sum of Rs.25 Crore approx. In such circumstances, it is not clear as to why the Society did not deposit the CLU amount and got the sanction for CLU expedited.
21. As per averment of Opposite Parties No.1 & 2, in Para 3 of written statement in preliminary objections, the site plan prepared by the Society has been sent to the competent authority for sanction and after sanctioning of site plan, the Society will make allotment of plots by draw of lots. In Para 4 on merits, it has been stated that possession of plot can be given after approval and sanction of site plan. No cogent evidence that site plan has been prepared and sent to the competent authority for sanction has been placed on record.
22. In addition to the aforesaid instances of deficiency in rendering service and unfair trade practice, it was admitted by Counsel for Opposite Parties No.1 & 2 during arguments that development at the site is yet to start.
23. It may be stated here that this Commission, in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein possession was offered after a long delay, while relying upon the judgments rendered by the Hon'ble National Commission, ordered refund to the complainants, while holding as under:-
"Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same."
24. In M/s Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-
"I am of the prima facie view that even if the said offer was genuine, yet, the complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery".
25. However, in the present case, as stated above, neither draw for allotting plots has been held nor possession has been offered. The complainant who has paid his hard earned money cannot be made to wait indefinitely. Under these circumstances, it is held that non-mentioning of period during which possession was to be delivered and also non-mentioning of rate of CLU charges, non-execution of allotment/agreement are acts of unfair trade practice and deficiency in service by the Opposite Parties. Further, there was a material violation on the part of the Opposite Parties in not developing the site, offering and handing over possession. When there is inordinate delay in the entire process, the complainant has a right to seek refund.
26. In view of the position stated above, vis-à-vis clear cut deficiency of the Opposite Parties, the complainant is held entitled to refund of the amount paid i.e. Rs.27,49,510/-.
27. It is to be further seen, as to whether, interest, on the amount to be refunded can be granted, in favour of the complainant. It is not in dispute that entire cost of the plot and part payment towards CLU, EDC charges etc. was paid by the complainant, without getting anything, in lieu thereof. The said amount has been used by Opposite Parties. It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon'ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335 decided on March 20th, 2014 (2014) 6 SCC 335). Keeping in view the prayer of the complainant for grant of interest, he is held entitled to interest @10% p.a. on the deposited amount from the respective dates of deposit.
28. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment, and injury caused to him. Clearly the allotment of the plot has not been made in favour of the complainant despite paying the entire payment towards plot and part payment towards CLU, EDC etc., 3-6 years ago, on account of which, the complainant has certainly suffered mental agony and physical harassment. Compensation for mental agony and physical harassment and deficiency in providing service, in the sum of Rs.2 lac, if granted, would be adequate to serve the ends of justice. The complainant is also held entitled for costs of litigation in the sum of Rs.35,000/-.
29. No other point, was urged, by the Counsel for the parties.
30. For the reasons, recorded above, this complaint is partly accepted, with costs. The Opposite Parties are, jointly and severally, held liable and directed as under:-
(i) To refund the amount of Rs.27,49,510/- to the complainant, alongwith interest @10% p.a., with effect from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of this order.
(ii) To pay an amount of Rs.2,00,000/-, as compensation for mental agony, physical harassment, deficiency in rendering service and unfair trade practices and Rs.35,000/- as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order.
(iii) In case, the payment of amount, mentioned in Clause (i), is not made, within the stipulated period, then the Opposite Parties, shall be liable to pay the amount mentioned in Clause (i) above, with interest @13% p.a., from the date of default, till realization and amount(s) mentioned in Clause (ii) above, with interest @10% p.a. from the date of filing the complaint till realization.
31. However, it is made clear that in case, the complainant has availed loan facility from any financial institution(s), such an institution shall have the first charge on the amount payable, to the extent, the same is due against the complainant.
32. Certified Copies of this order be sent to the parties, free of charge.
33. The file be consigned to Record Room, after completion.
Pronounced.
16.03.2017.
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT [DEV RAJ] MEMBER Ad