Consumer Complaint No. : 432/2015 Date of Institution : 12.08.2015 Date of Decision : 03/02/2016 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Ram Kumar Garg s/o Sh.Narsingh Dass r/o H.No.3328, Sector 27-D, Chandigarh ... Complainant. Versus Reliant Infrastructure Pvt. Ltd., SCO 60-62, Sector 17-C, Chandigarh through its Director. . Opposite Party. BEFORE: SHRI RAJAN DEWAN, PRESIDENT SMT.PRITI MALHOTRA, MEMBER : Sh.Rohit Goswami, Counsel for the complainantArgued by Sh.Nitin Gupta, Counsel for the OP. PER RAJAN DEWAN, PRESIDENT In brief, the case of the complainant is that the OP issued an advertisement in all circulating newspapers at Chandigarh in the month of April, 2008 that they are developing Group Housing Residential Scheme as they had received the necessary approval from the concerned authorities. In pursuance of the said advertisement, he made an application (Annexure C-1) for purchase of a Studio Apartment by depositing Rs.1.50 lacs as an earnest money vide cheque dated 03.06.2008. He was allotted apartment No.G-09, Tower-E, Ground Floor in World 1 at Mohali vide allotment letter (Annexure C-2). Subsequently an buyers agreement dated 17.06.2008 (Annexure C-3) was entered between the parties as per which the total sale consideration of the apartment was Rs.14.99 lacs and the possession of the same was to be delivered by October, 2009. According to the complainant, he made the payment as per the schedule mentioned in para 2(c) of the agreement in question as and when demanded by the OP and in all he deposited a sum of Rs.12.69 lacs vide different receipts [Annexure C-4 (Colly.)] with the OP and the remaining amount was to be deposited at the time of delivery of the possession of the apartment. In month of September, 2009, he visited the site and was shocked to see that the construction had not been started by the OP and on enquiry, he was informed that the construction would be raised very soon and the possession would be delivered to him soon. It has further been averred that he requested vide letters (Annexure C-5 Collectively) to deliver the possession of the apartment but the OP gave false assurance that the possession would be delivered to him soon. It has further been averred that he took a loan of Rs.5.85 lacs from the Union Bank of India for the purchase of the apartment in question. According to the complainant, the OP has failed to deliver the possession of the apartment after the expiry of 6 years and ultimately, he requested for refund of the deposited amount which has not been refunded. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Party, the complainant has filed the instant complaint. In its written statement the OP took preliminary objections inter alia that the complainant is not a consumer as defined under the provisions of the Consumer Protection Act, 1986 as he had purchased the apartment for the purpose of making profit out of it by way of investment and that the complaint is barred by limitation. It has further been pleaded that the complainant did not follow the agreement payment plan and delayed the payments of the apartment and resultantly, the construction of the apartment was got delayed. It has been pleaded that the complainant paid his first installment of the booked apartment after a delay of about three years which was to be paid in a period of 30 days from the date of booking of the apartment despite repeated reminders and legal notice. It has further been pleaded that the OP was ready to deliver the possession and also served the possession letter to the complainant but he was demanding possession without clearing his dues towards the apartment. The remaining allegations were denied, being false. Pleading that there is no deficiency in service on its part, a prayer for dismissal of the complaint has been made. We have heard the learned counsel for the parties and have gone through the documents on record including the written arguments. The first question that arises for determination is whether the complainant is covered under the definition of Consumer as defined in Section 2(1)(d) of the Consumer Protection Act, 1986. It is significant that super area of the apartment No.G09 allotted to the complainant by the OP is approximately 628 sq. feet. The Opposite Party has not been able to place on record any documentary evidence to show that the complainant has purchased the apartment in question for the purpose of making profit out of it by way of investment i.e. commercial purpose. There is no evidence that the complainant has invested the money in a number of flats/apartment in order to earn profits and therefore, complainant is covered under the definition of consumer as defined in Section 2(1)(d) of the Consumer Protection Act. As regards the plea of the Opposite Party that the complaint is barred by time is concerned, there is no merit in the same because the Opposite Party has itself offered the possession apartment in question to the complainant vide its letter dated 16.03.2015 whereas the present complaint has been filed on 10.08.2015 and as such the complaint is well within time. The next question to be determined in this case is as to whether the complainant is entitled for the refund of his deposited amount or not. It has been argued by the Counsel for the complainant that the complainant deposited a sum of Rs.12.69 lacs with the Opposite Party towards the cost of the apartment in question and rest of the amount was to be deposited at the time of its delivery. It has further been argued that the Opposite Party has failed to deliver the possession after a lapse of 6 years despite the various requests made by the complainant and ultimately, he requested for refund of his deposited amount but the same has not been refunded. On the other hand, the case of the Opposite Party is that the complainant paid his first installment towards the apartment in question after a delay of about three years which was to be paid in a period of 30 days from the date of booking of the apartment. It has further been pleaded that the OP was ready to deliver the possession and also served the possession letter to the complainant but he was demanding possession without clearing his dues towards the apartment. We have considered the above arguments of the parties. It is true that as per the clause of 2(c) of the agreement in question, the complainant was required to deposit the first installment towards the apartment in question within 30 days from the date of booking of the apartment in question and the same was deposited after a lapse of three years. However, it is apt to mention here that the Opposite Party had itself accepted the payment to the tune of Rs.11.19 lacs towards the apartment in question vide different receipts in the year 2011 without charging any interest from the complainant meaning thereby that they forego the penal interest, if any, chargeable from the complainant and this fact is further apparent from the letter dated 04.12.2012 (at page 43 of the file) sent by the Opposite Party to the complainant. It is a factum on record that the possession of the apartment in question was to be delivered by October, 2009 as per the buyers agreement. Since the complainant himself has made the payments to the tune of Rs.12.69 lacs towards the apartment in question in the year 2011 i.e. after about two years of the booking of the apartment in question and, therefore, the plea of the complainant that the OP had failed to deliver the possession by October, 2009 cannot be accepted and the same is rejected accordingly. However, it is apt to mention here that since the Opposite Party had received the substantial amount of Rs.12.69 lacs out of Rs.14.99 lacs towards the apartment in question from the complainant in the year 2011 and as such they are certainly liable to deliver the possession of the apartment in question within a reasonable period of time of about one year or at the most within two years from the receipt of the payments aforesaid but they failed to do so. Moreover, in the letter dated 19.11.2012 at page 42 of the file, the OP informed the complainant that the possession of the apartment in question would be ready within the next 6-7 months, but despite passing of the 6-7 months, the OP had failed to deliver the possession of the apartment in question to the complainant which itself amounts to deficiency in service on its part. Besides this the Opposite Party has failed to give any definite date of possession to the complainant despite his repeated requests sent through e-mails and, thus under these circumstances, the complainant was left with no option but to seek the refund of his deposited amount because huge period of six and half years have already passed from the date of booking of the apartment in question. Needless to mention here that the Opposite Party for the first time offered the possession of the apartment in question to the complainant vide letter dated 16.03.2015 (Annexure OP-5) i.e. after six and half years from the date of the booking of the apartment, and that too after the request made by the complainant for refund of the deposited amount. Had the Opposite Party offered the possession of the apartment in the question within a reasonable period, then the position certainly would have been different. In our considered view, the complainant cannot be made to wait indefinite period and as such he was right in seeking refund of his hard earned money and non-refund of the same tantamounts to deficiency in service as well as indulgence into unfair trade practice on the party of the OP.
iii. In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The Opposite Party is directed as under ;- To refund the amount of Rs.12,69,000/- to the complainant along with interest @9% p.a. from the respective date of its deposit till actual payment. To pay a sum of Rs.25,000/- as compensation to the complainant on account of mental tension, agony, harassment. To pay Rs.7,000/- as litigation expenses. This order shall be complied with by the Opposite Party within one month from the date of receipt of its certified copy, failing which, it shall be liable to refund the amount of Rs.12.69 lacs to the complainant along with interest @12% p.a. from the respective date of its deposit till actual payment and compensation amount of Rs.25,000/- alongwith interest @ 12% p.a. from the date of this order, till its realization, besides costs of litigation. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 03/02/2016 Sd/- (RAJAN DEWAN) PRESIDENT Sd/- (PRITI MALHOTRA) MEMBER