State Consumer Disputes Redressal Commission
Amit Goyal vs The State Officer, Gmada on 1 January, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.388 of 2017
Date of Institution: 19.05.2017
Order reserved on: 21.12.2017
Date of Decision : 01.01.2018
Sh. Amit Goyal son of Sh. Ashok Goyal, resident of House No.448
Dalim Vihar Rajpura Punjab.
.....Complainant
Versus
The Estate Officer, Greater Mohali Area Development Authority,
PUDA Bhawan, Sector 62, Sahibzada Ajit Singh Nagar, Mohali
(Punjab).
.....Opposite Party
Consumer Complaint U/s 17(1)(a) of the
Consumer Protection Act, 1986 (as
amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Ms. Namita Kandhari, Advocate For the opposite party : Ex-parte .................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act"), against opposite party (OP) on the averments that the latter issued an advertisement for allotment of flats on the basis of draw in Purab Premium Apartment at Sector 88, SAS Nagar Mohali in various newspapers. He applied for a flat for his own residential purpose in general category by depositing Rs.5,50,000/- (earnest money) through RTGS with UTR no.9266A1 dated 09.01.2012 in the account Consumer Complaint No.388 of 2017 2 of GMADA with HDFC Bank. He was declared successful in the draw of lots held on 19.03.2012, under application form no.PUR000144 for general category, Apartment type-II. Letter of intent (LOI) was issued in his favour by OP on 21.05.2012. He further deposited Rs.11,00,000/-, vide DD no.011008 dated 15.06.2012 in the Axis bank account of GMADA, as per payment schedule. It is further averred by complainant that he again deposited Rs.33,96,250/- vide DD no.165035 dated 16.07.2012 in Axis bank account of GMADA, as balance payment of above apartment. As per clause 3(ii) of LOI, the possession of the apartment was to be handed over after completion of development works at site within a period of 36 months from the date of issuance of LOI i.e. upto 21.05.2015. In case of any reason, the authority is unable to deliver the possession of the apartment within stipulated period, the allottee shall have the right to withdraw from the scheme by moving an application to Estate Officer GMADA and it shall refund the entire deposited amount with 8% interest compounded annually to allottee. In the first week of May 2016, he visited the site and was shocked to see that there was no substantial construction work done at the site. Even though a period of 48 months has passed after issuance of LOI, it was not possible for OP to handover the possession of the flat within more months. Construction Incharge apprised him that possession could not be delivered till June 2017.
He approached office of OP for knowing the date of delivery, but OP's staff could not give any satisfactory reply and then he Consumer Complaint No.388 of 2017 3 requested for refund of his entire deposited amount with interest, as per clause 3(ii) of LOI. He also submitted application dated 11.05.2016 for refund of entire deposited amount, as it failed to hand over the possession within agreed 36 months from the date of issuance of LOI. OP assured him for refund of whole amount alongwith interest as per LOI. He has surrendered the above said apartment to concerned authority of OP, due its deficiency in service and unfair trade practice. After considering his request, OP refunded him an amount of Rs.54,14,086/- through cheque no.662045 dated 31.08.2016, out of total amount of Rs.68,48,583/-, but OP did not give any reason for the deduction of above amount. It is further averred by complainant that there is no fault of complainant in depositing the installments and the fault is squarely on the part of OP by not developing the above project within time and to handover the possession of the apartment to him within 36 months from the date of letter of intent i.e. 21.05.2012 and possession was to be handed over to him by OP on 21.05.2015. He has alleged deficiency in service and unfair trade practice on the part of OP and has prayed that OP be directed to refund the total deposited amount alongwith interest @12% per annum compounded annually from the date of deposit of earnest money till the actual payment i.e. an amount of Rs.29,69,980/- upto 30.04.2017 alongwith future interest @12% annual compounding w.e.f. 01.05.2017 till the actual payment; further to pay Rs.8,00,000/- as compensation for mental harassment; and to pay Rs.one lakh as cost of litigation.
Consumer Complaint No.388 of 2017 4
2. Notice of this complaint was issued to OP, but none had appeared on behalf of OP, hence it was proceeded against exparte vide order dated 02.08.2017.
3. The complainant tendered in exparte evidence affidavit of Ashok Goyal Ex.C-A alongwith copies of documents Ex.C-1/1, Mark-A and Mark-D and closed the exparte evidence.
4. We have heard the learned counsel for complainant and also examined the exparte evidence on the record in this case. The averments pleaded by the complainant are that pursuant to the advertisement issued by OPs for allotment of flats on the draw of lots basis in Purab Premium Apartment at Sector 88, SAS Nagar Mohali in various newspapers, he applied for a flat for his residential purpose as general category candidate. He deposited Rs.5,50,000/- (earnest money) through RTGS with UTR no.9266A1 dated 09.01.2012 in the account of GMADA with HDFC Bank, as earnest money. His case is that he was declared as successful allottee in the draw held on 19.03.2012 for Apartment type-II. Letter of intent was issued in his favour by OP on 21.05.2012. He further deposited Rs.11,00,000/-, vide DD no.011008 dated 15.06.2012 in the Axis bank account of GMADA, as per payment schedule and he again deposited Rs.33,96,250/- vide DD no.165035 dated 16.07.2012 in Axis bank account of GMADA, as balance payment of above apartment. As per clause 3(ii) of letter of intent, the possession of the apartment was to be handed over after completion of development works at site within a period of 36 months from the date of issuance Consumer Complaint No.388 of 2017 5 of LOI i.e. upto 21.05.2015. The complainant's case as set up in the complaint is that the development work was not completed by OP even in May 2016, when he visited the site and even only insubstantial work was found there, despite passage of 48 months from the date of issuance of letter of intent. He submitted an application dated 11.05.2016 to OP for refund of whole of his deposited amount alongwith interest, as per LOI condition. OP refunded him an amount of Rs.54,14,086/- only, out of total amount i.e. Rs.68,48,583/-. The complainant sought the refund of the deposited amount by him with interest @12% per annum from the date of deposit and further prayed for compensation of Rs.8,00,000/- for mental harassment and Rs.1,00,000/- for litigation expenses.
5. To establish his exparte case, the complainant produced on record Ex.C-1, the acknowledgement slip dated 12.01.2012 issued by OP. The letter of intent is Ex.C-2 on the record issued by OP to complainant. The tentative price of the apartment in it was shown as Rs.55,00,000/-. The payment schedule is contained in clause II of letter of intent. As per clause 3 (ii), the possession of the apartment was to be handed over after completion of development at site in a period of 36 months from the date of issuance of letter of intent. In case, the authority is unable to deliver the possession of apartments within stipulated period, the allottee shall have right to withdraw from the scheme by moving an application to the Estate Officer, where the authority shall refund the entire amount deposited with interest @8% compounded annually. Apart from this, there shall Consumer Complaint No.388 of 2017 6 be no liability of the authority. Ex.C-3 is receipt issued by Axis Bank Limited for the posit of amount of Rs.11,00,000/- in the name of complainant. Ex.C-3(a) is receipt issued by Axis Bank for the deposit amount of Rs.33,96,250/-. The complainant applied to Estate Officer GMADA Mohali vide Ex.C-4 dated 11.05.2016, pointing out their deficiency in service and his entitlement to refund of the amount of Rs.68,48,583/-. Ex.C-5 is letter issued by OP to complainant on 16.09.2016 sending cheque no.662045 dated 31.08.2016 of Allahabad Bank, Mohali for Rs.54,14,086/-. The complainant also tendered his evidence by means of affidavit Ex.C-A on the record proving the above documents. Instrument of special power of attorney executed by complainant in favour of Ashok Goyal is Ex.C1/1.
6. From appraisal of entire exparte evidence on the record and hearing the submissions of counsel for the complainant, we find that complainant applied for the above flat with OP. OP was to deliver the possession of the above flat within three years period from the date of letter of intent, as embodied in clause 3(ii) of Ex.C-2, the letter of intent dated 21.05.2011, but OP failed to deliver the possession within 36 months to complainant. As per clause 3(ii) of letter of intent Ex.C-2, the complainant is entitled to refund of the deposited amount by withdrawing from the scheme with interest @8% compounded annually. The complainant applied to OP for withdrawal from the scheme for their failure to deliver the possession within stipulated period to him and this fact is established on record Consumer Complaint No.388 of 2017 7 by letter Ex.C-4 dated 11.05.2016. The parties are bound by the terms and conditions of letter of intent Ex.C-2 on the record. Clause 3(ii) makes it clear that in case of failure of OP to deliver the possession within three years period, complainant can withdraw from the scheme with his entitlement to seek refund of the amount with interest @8% compounded annually. The OP is bound to refund the deposited amount of complainant with interest @8% compounded annually. Exparte case of the complainant is established by the above evidence on the record. The National Commission has held in "Greater Mohali Area Development Authority & Anr. Versus Priyanka Nayyar" in first appeal no.1456 of 2016 decided on 22.12.2016 that the amount of award of compensation of Rs.2,00,000/- to complainant in addition to interest @8% cannot be said to be unreasonable or excessive because complainant paid interest to the bank on the loan disbursed for purchasing the apartment. Similarly, the matter was examined by the National Commission in "Vijay Gupta Vs. Estate Officer (H) GMADA" in C.C. No.750 of 2015, decided on 10.03.2016 wherein it has been held that GMADA shall return the amount received from complainant alongwith interest compounded annually @8% from the date of deposit till realization, besides compensation of Rupees One Lakh.
7. In view of law laid down above and the evidence on the record, we accept the complaint of the complainant exparte and order that OP shall refund the entire deposited amount to complainant with interest @8% compounded annually from the date Consumer Complaint No.388 of 2017 8 of deposits till the actual payment. Further, it is made clear that the amount already disbursed by OP to complainant shall be set off out of the same. We further award compensation of Rs.1,00,000/- to complainant for mental harassment, as appositely held by the National Commission in "Vijay Gupta Vs. Estate Officer (H) GMADA" (Supra). We also award litigation expenses of Rs.30,000/- to complainant in this complaint. The complaint is accepted exparte and stand disposed off accordingly.
8. Arguments in this complaint were heard on 21.12.2017 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
9. The complaint 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 January 01, 2018.
(MM)