State Consumer Disputes Redressal Commission
Parminder Singh vs Impact Sare Magnum Townships Pvt. Ltd. on 3 May, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.425 of 2016
Date of Institution: 02.06.2016
Order reserved on:02.05.2017
Date of Decision : 03.05.2017
1. Parminder Singh S/o S. Roop Singh
2. Kultar Singh S/o Parminder Singh Grover
R/o 240/5, Vijay Nagar, Batala Road, Amritsar.
.....Appellants/complainants
Versus
Impact Sare Magnum Townships Pvt. Ltd., having its Branch Office
at P.O. Vallah, G.T. Road Bye pass, Amritsar; through its
Chairman/Managing Director/Principal Officer.
.....Respondent/opposite party
First appeal against order dated
29.04.2016 passed by the District
Consumer Disputes Redressal
Forum, Amritsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. Sukhandeep Singh, Advocate For the respondent : Sh. Neeraj Sobti, Advocate .................................................
AND 2) First Appeal No.637 of 2016 Date of Institution: 22.08.2016 Order reserved on:02.05.2017 Date of Decision : 03.05.2017 M/s Impact Sare Magnum Township (P) Ltd. having its branch office at P.O. Vallah, G.T. Road By pass, Amritsar through its Chairman/Managing Director/Principal Officer.First Appeal No.425 of 2016 2
.....Appellant/Respondent Versus
1. Mr. Parminder Singh S/o S. Roop Singh
2. Mr. Kultar Singh S/o S. Parminder Singh Grover R/o 240/5, Vijay Nagar, Batala Road, Amritsar aged 56 years.
.....Respondents/complainants First appeal against order dated 29.04.2016 passed by the District Consumer Disputes Redressal Forum, Amritsar.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Neeraj Sobti, Advocate For the respondents : Sh. Sukhandeep Singh, Advocate ................................................. J.S KLAR, PRESIDING JUDICIAL MEMBER :-
By this common order, we intend to dispose of the above referred two first appeals, as they have arisen out of the same order dated 29.04.2016 of the District Consumer Disputes Redressal Forum, Amritsar (in short the 'District Forum), as such they can be disposed of together. The order shall be pronounced by us in main first appeal no.425 of 2016 titled as "Parminder Singh & another Vs. Impact Sare Magnum Township Pvt. Ltd.", which has been filed by the complainants for enhancement of compensation and for awarding the interest. The appellants of this appeal are complainants in the original complaint before the District Forum and respondents First Appeal No.425 of 2016 3 of this appeal are opposite parties therein and they be referred as such hereinafter for the sake of convenience.
2. First appeal no.637 of 2016 has been filed by OP now appellant against order dated 29.04.2016 of the District Forum, allowing the complaint of the complainants by directing OP to refund the amount of Rs.10,000/- to the complainants alongwith compensation to the tune of Rs.5000/-, besides Rs.2000/- as litigation expenses within 30 days of the receipt of copy of the order, failing which, the awarded amount shall carry interest @9% per annum from the date of order till final recovery. The appellant of this appeal is OP in the complaint before the District Forum and respondents of this appeal are the complainants therein and they be referred as such hereinafter for the sake of convenience.
3. The complainants brought complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averment that they being father and son booked a plot around 300 square yards @ Rs.9995/- per square yard by paying an amount of Rs.7,00,000/- on 23.01.2012 with OP. The balance amount was to be paid in different installments which they were always ready and willing to pay. The OPs failed to provide the basic amenities to the complainant by developing area as promised. The complainants visited the OP regularly with regard to development of the project by offering to pay the balance amount to it. The OP failed to take any step for development of the project and eventually asked the complainants to receive the refund of the amount because OP First Appeal No.425 of 2016 4 was not in a position to develop the project and to handover the possession of the booked plot to the complainants. Despite getting the signatures of the complainants on blank application, the amount was not refunded with interest. The complainants wrote to OP on 05.12.2014 which was duly acknowledged by it. The OPs ultimately refunded only amount of Rs.6,90,000/-, vide cheque dated 20.02.2015 out of deposited amount of Rs.7,00,000/- without paying any interest. Rather the amount of Rs.10,000/- was deducted without any reason by OP. The complainants alleged unfair trade practice and deficiency in service on the part of OP. The complainants filed complaint directing OP to pay balance amount of Rs.10,000/- and to pay interest @12% per annum on the amount of Rs.7,00,000/- from the date of deposit till the date of refund. The complainant further prayed for compensation of Rs.4,50,000/-.
4. Upon notice, OP appeared and filed written reply and contested the complainant of the complainants by raising preliminary objections that complainants are guilty of concealment of material facts. This fact was admitted by OP that complainants applied for one plot bearing no.12, measuring total area of 299.53 square yards in the colony of M/s Impact Sare Magnum Township Pvt. Limited and as a sequel thereto, make the payment of booking amount of Rs.7,00,000/- to OP. The complainants were required to make payments as per terms and conditions of the application form and as per plot buyers agreement. But, they had not come forward to complete the formalities and execution of application and plot buyer First Appeal No.425 of 2016 5 agreement. The complainants purchased the plot for speculative purposes only and are not the consumers. It was further averred that said Colony Crescent Parc was fully developed within 2.5 years of its launch and number of persons already took possession in the said colony. The complainant gave affidavit-cum-undertaking seeking refund of the amount, as per terms and conditions of allotment and plot buyer agreement. The complainants are not entitled to claim any money, as earnest money/booking money is to be forfeited, as per terms and conditions of plot buyer agreement. On merits, OP denied any unfair trade practice or deficiency in service on its part. It prayed for dismissal of the complaint.
5. The complainants tendered in evidence affidavit and documents Ex.C-1 to C-5 and closed the evidence. As against it, OP tendered in evidence affidavit alongwith documents Ex.OP-1 to Ex.OP-6 and closed the evidence. On conclusion of evidence and arguments, the District Forum allowed the complaint of the complainants. Aggrieved by above order, OP now appellant of first appeal no.637 of 2016 has filed this appeal against the same whereas, complainants have preferred first appeal no.425 of 2016 for enhancement of amount of compensation and for awarding rate of interest.
6. We have heard the learned counsel for the parties and have also examined the record of the case. Evidence on the record has been evaluated by us with the able assistance of counsel for the parties. Affidavit of Parminder Singh complainant no.1 is Ex.C-1 on First Appeal No.425 of 2016 6 the record. He testified in his affidavit that they booked the plot with OP by paying Rs.7,00,000/- on 23.01.2012. The plot was of the size of 300 square yards @Rs.9995/- per square yard. This witness further testified that OPs did not develop the project and could not give possession thereof to the complainants. The OP asked the complainants to receive their refund of the deposited amount;
because it was not in a position to develop the project. He further testified that OP refunded the amount of Rs.6,90,000/- only, vide cheque dated 20.02.2015, out of the deposited amount of Rs.7,00,000/- by deducting the amount of Rs.10,000/-. He further stated that no interest was paid to the complainants on the deposited amount. Ex.C-2 is the application for registration of allotment of the plot by the complainants with OP on the record. Ex.C-3 is the letter sent by the complainant to the Project Officer of OP complaining non-development of the project. Ex.C-4 is the copy of cheque dated 20.02.2015 for an amount of Rs.6,90,000/- payable to complainant no.1 Parminder Singh issued by OP. Ex.C-5 is the certificate issued by OP for plot no.12 in Impact Sare Townships Pvt. Ltd, which was allotted to Mr. Parminder Singh and Mr. Kultar Singh complainants and the said allotment of plot was withdrawn and payment of Rs.6,90,000/- was refunded to the allottees, vide cheque no.000540 dated 20.02.2015 of Andhra Bank. This is the evidence relied upon by the complainant to substantiate their averments. OP tendered in evidence affidavit of Ajay Singh Cheema, Director Ex.OP-1 on the record. Ex.OP-2 is the application for allotment of plot by one Richa First Appeal No.425 of 2016 7 Sharma and Rajiv Kumar with OP. Ex.OP-3 is the plot buyers agreement executed on 23.01.2013 between OP and one Amandeep Singh. Ex.OP-4 is the copy of affidavit-cum-undertaking of Parminder Singh and Kultar Singh complainants expressing their agreement to receive the refund of the deposited amount. Ex.OP-5 and OP-6 are the applications of Parminder Singh complainant no.1 to OP in this regard.
7. From conclusion of evidence on the record, we find that the OP has refunded the amount of Rs.6,90,000/- to the complainants out of deposited amount of Rs.7,00,000/- as established on the record. We find force in the contention of counsel for the complainants that had there been any development of the project, there was no question of refunding this amount by OP to the complainants. This fact adds inference to the case of the complainants that no development was carried out by the OP at the site. The complainant led positive evidence of want of development on the site. The OP could not rebut it satisfactorily. The District Forum rightly concluded that OPs refunded the amount partly to the complainants to the extent of Rs.6,90,000/- only. The submission of OP raised before us is that the relationship of consumer and service provider came to an end on receipt of Rs.6,90,000/- by the complainants on 20.02.2015 which is without any substance. The relationship of consumer and service provider between the parties still exists unless and until the entire amount is cleared by the OP. The complainant are aggrieved by the order of the District Forum by First Appeal No.425 of 2016 8 not directing the OP to pay interest on the amount of Rs.7,00,000/- deposited by them. We find force in the submission of counsel for the complainants on this point. The OP has utilized the amount of Rs.7,00,000/- deposited by the complainant with it without handing over the possession of the developed plot. The District Forum had gone wrong in not awarding interest to the complainants over the deposited amount of Rs.7,00,000/- without giving possession of the plot to them. The counsel for the complainants relied upon judgment of this Commission in case titled as "Brigadier B.S. Taunque (Retd.) & others Vs. M/s Sangeetashree Builders & Developers International Private Limited & others" 2014(2)CLT-401, wherein it has been held that complainants purchased plot in Punjab Govt. approved colony. Builder did not carry out the development work of the area, which is a barren land and still continues to be in that condition. Complainants can seek refund of the amounts paid with interest @18% and compensation. Judgment of the Hon'ble National Commission in case "Sunit Enterprises & another Vs. Mohanlal N. Jogi and another" 2013(1) C.L.T. 309(NC), is relied upon, wherein it was held that if the money is refunded within five years, then interest @12% to 15% p.a. should be sufficient and if after that, then the interest @18% has to be awarded. This Commission holds in this case that interest is payable in this case @12% pr annum over the deposited amounts by the complainants till refund from date of deposit. Consequently, there is merit in first appeal no.425 of 2016 filed by the complainant now appellants of this appeal on this point. First Appeal No.425 of 2016 9 We, thus, order that OP shall pay the interest to the complainants @12% per annum from the date of deposit of the amount of Rs.7,00,000/- till 20.02.2015. The rest of the order of the District Forum directing OP to refund the amount of Rs.10,000/- wrongly deducted by OP and the order of Rs.5000/- as compensation and Rs.2000/- as costs of litigation is not disturbed in this appeal. The order of the District Forum is thus modified by directing OP to award interest to the complainants @12% per annum from the date of deposit of amount till 20.02.2015.
8. As a result of our above discussion, we partly accept first appeal no.425 of 2016 filed by the complainant now appellants, as detailed above. There is no merit in first appeal no.637 of 2016 filed by the OP now appellant in this appeal and the same stands dismissed for reasons recorded above.
9. In First Appeal No.637 of 2016, the appellant had deposited an amount of Rs.8900/- in this Commission at the time of filing the appeal and further deposited an amount of Rs.9200/- in compliance with order of this Commission. These amounts alongwith interest, which accrued thereon, if any, be remitted by the registry to the respondents of this appeal, being complainants, in equal shares, by way of crossed cheque/demand draft after the expiry of 45. Remaining amount shall be paid by the OPs to the complainants within 30 days from the date of receipt of certified copy of the order. First Appeal No.425 of 2016 10
10. Arguments in above referred appeals were heard on 02.05.2017 and the orders were reserved. Certified copies of the orders be communicated to the parties as per rules.
11. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER May 03, 2017 (MM)