1.Ansal Lotus Melange Projects Pvt. Ltd., A-2, Dhawandeep Building, 6 Jantar Mantar Road,New Delhi,through its Managing Director

2.Branch Manager, Ansal Lotus Melange Projects Pvt. Ltd., SCO 183-184, Sector 9-C, Madhya Marg, Above British Library, Chandigarh.

……Appellants/Opposite Parties

V e r s u s

1.Gaurav Raj Prashar, resident of House No.1191, Progressive Enclave, Sector 50-B,Chandigarh.

2.Ms. Usha Prashar resident of House No.1191, Progressive Enclave, Sector 50-B,Chandigarh

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  

Argued by:

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

“In view of the above discussion, the present complaint deserves to succeed and the same is accordingly allowed.  The opposite parties are directed as under :-

i)     to refund the total amount deposited  i.e. Rs.4,93,000/- to the complainants

ii)    to pay Rs.50,000/- as compensation for mental agony and harassment;

iii)   to pay Rs.7,000/- as costs of litigation.  

This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) & (ii) above shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.”

2.            The facts, in brief, are that the complainants, in order to earn their livelihood, by way of self employment, applied for a commercial space, in the proposed “Retail and Commercial Cum Office Complex” of the Opposite Parties, namely “City Centre” situated on Kharar-Landran Road, Mohali, Punjab. The complainants were allotted a commercial space, having approximate super area of 53.15 sq. mtrs. (572.09 sq. ft.), bearing Unit No.SH-25 FF,

3.             It was further stated that the commercial space, allotted to the complainants was complete upto the required stage. 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.

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8.           Complaint No.02 of 2010, decided on 27.05.2011, by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh, in support of his contention that since the commercial space was allotted to the complainants, they did not fall within the definition of consumers. The facts of the aforesaid case, are distinguishable, from the facts of the instant case. No help, therefore, could be drawn by the Counsel for the appellants, therefrom. The submission of the Counsel for the appellants, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

9.           , a case decided by the Madras High Court, in support of his contention that burden was on the complainants, to prove their case. There is, no dispute, with regard to the proposition of law, laid down, in the aforesaid authorities. However, there is an exception to the general rule of onus of proof, contained in Section 106 of the Indian Evidence Act. According to Section 106 of the Indian Evidence Act, a person within special means of knowledge and possession of a particular fact, must prove the same, by producing the primary evidence. No help, therefore, can be drawn by the Counsel for the appellants, from the principle of law, laid down, in the aforesaid cases.10.        In Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), no development work was carried out, at the site. Thus, the payment of further installments was stopped by the complainants. It was, under these circumstances, held that the builder could not be allowed to take shelter, under the agreement clause, to usurp the money, deposited by the complainants. It was further held that the builder cannot forfeit the money, paid by the complainants, on account of his own fault, in not carrying out the development work. Ultimately, the Hon’ble National Commission, ordered the refund of amount with interest. The principle of law, laid down, in Prasad Homes Private Limited`s case (supra), is fully applicable to the facts of the instant case. The submission of the Counsel for the appellants/Opposite Parties, in this regard, being devoid of merit, must fail, and the same is rejected.

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                         The appellants/Opposite Parties shall refund the amount of Rs.4,93,000/-, deposited by the respondents/complainants, to them.

                        The appellants/Opposite Parties are directed to pay compensation, in the sum of Rs.25,000/-, for mental agony and physical harassment, instead of Rs.50,000/-, awarded by the District Forum.

                      The appellants/Opposite Parties shall pay a sum of Rs.7,000/-, as cost of litigation, as awarded by the District Forum.

                       The amounts mentioned in Clauses (i) and (ii) shall be paid by the appellants/Opposite Parties, to the respondents/complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which the same shall carry interest @9% P.A., till realization

                        Any other direction, given by the District Forum, which is contrary to, or in variance of this order, subject to the modification, aforesaid, shall stand set aside  

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Pronounced.

December 4, 2013

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Rg