Chandigarh

StateCommission

A/133/2023

MANJIT KAUR SHARMA - Complainant(s)

Versus

JEEVAN VASUDHA WELFARE SOCIETY REGD. THROUGH ITS PRESIDENT - Opp.Party(s)

Amardeep Singh Walia

31 Aug 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	133 of 2023
Date of Institution	:	13.04.2023
Date of Decision	:	31.08.2023

 

1. Manjit Kaur Sharma wife of Shri Pradeep Sharma resident of H. No. 539, Sector 8-B, Chandigarh.
2. Narinder Chillar wife of Shri R.S. Chillar resident of H. No. 539, Sector 8-B, Chandigarh.

……Appellants/Complainants

V e r s u s

 

Jeevan Vasudha Welfare Society (Regd.) Office No.203, Second Floor, Suneja Tower-II, District Centre, Janak Puri, New Delhi through its President.

…..Respondent/opposite party

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR.RAJESH K. ARYA, MEMBER

                            

Present:-     Sh.Amandeep Singh Walia, Advocate for the appellants.

                   Sh.Pradeep Aggarwal, Authorized Representative of Respondent-Society.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The complainants have assailed the order dated 27.03.2023 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), vide which the consumer complaint bearing no.357 of 2021 filed by them was dismissed by it holding as under:-

“……On perusal of the documents it is observed that many members of the society including the complainants had not paid the desired money and complainants themselves are responsible for causing delay in further proceedings/progress to be carried out by the society. The complainants are a Member of the OP Society and have equal say and responsibilities as of any other members of the society. Hence, they are themselves responsible by not paying the money demanded by the society for the progress of the scheme. Thus, the complainants have failed to prove any deficiency or unfair trade practice against the OP society. Thus, no case is made out against the OP.…..”  

 

2.           Before the District Commission, it was the case of the complainants that they being members of housing society floated by the opposite party had applied for 3 BHK flat. They paid membership fee of Rs.5000/- vide cheque dated 5.3.2014 and further paid Rs.3,25,000/- as Ist installment vide cheque dated 3.4.2014 and Rs.12,05,000/- as IInd installment vide cheque dated 5.11.2014 i.e. totaling Rs.15,35,000/-. After receiving second installment, the opposite party failed to make progress with acquisition of land as per the DDA’s policy for land pooling for construction of flats as promised. Thereafter the opposite party vide letter dated 10.4.2019 raised a demand of Rs.4,50,000/- in two equal monthly installments payable by 30.4.2019 and 31.5.2019 for intended purchase of 2 Acres of extra land in view of the revised FAR from 400 to 200 under land pooling policy of Urban Ministry. In response to the said demand, the complainant vide letters dated 17.4.2019 and 27.5.2019 requested the opposite party to consider their request for cancellation of membership as it had failed to make any progress in the last 5 years and further they are not in position to pay any extra and sudden demand and refund the amount of Rs.15,35,000/- with interest but it refused to do so and on the other hand, asked them to transfer their membership. Hence, consumer complaint was filed before the District Commission.
3.           In its reply filed, the opposite party stated that the complainants deposited 1^st and 2^nd installment on 18.4.2014 and 13.11.2014 respectively and the opposite party society immediately purchased 21 Bighas of land on 20.11.2014 and 19.12.2014. However, when the opposite party demanded 3^rd and 4^th installment as cost of purchasing additional 2 acres of land after the Delhi Development Authority amended proposed land pooling policy vide notification dated 11.10.2018, the complainants failed to pay the same and on the other hand, sought refund of the amount paid. The opposite party even assured the complainants that the size of proposed flat will be reduced according to their payment of Rs.15,30,000/- and no further demand of amount towards 3^rd and 4^th installment of land cost will be made. At the time of formation of society, it was apprised that progress of society will be totally dependent upon the pace with which the DDA & other Govt. authorities will take decisions and give finality to the project.  The society is not a deciding authority for finality of project. Since the DDA & Urban Ministry has been taking decisions belatedly, so the project has got delayed and as such, it was beyond the control of the opposite party to allot flat to the complainants immediately for which the society never promised them nor gave any assurance at any point of time.
4.           In the rejoinder filed, the complainants reiterated all the averments of their complaint and controverted those of the opposite party.
5.           The District Commission after hearing the contesting parties and on going through the material available on record dismissed the consumer complaint, in the manner stated above. Hence this appeal has been filed by the appellants/complainants for setting aside the order impugned and granting them relief of refund of the amount paid, alongwith interest, compensation and litigation expenses.  
6.           We have heard the contesting parties and carefully gone through the material available on the record and also the written arguments filed by the parties concerned.
7.           Counsel for the appellants/complainants contended with vehemence that the complainants were compelled to seek refund of the  amount paid only due to the reason that there was inordinate delay on the part of the respondent/opposite party to complete the development and  construction work at the project site for about 5 years, yet, by  refusing to refund the same, it indulged into unfair trade practice, but the District Commission fell into a grave error by dismissing the consumer complaint, holding to the contrary. He further contended that in case the order passed by the District Commission is not set aside, an irreparable loss will be caused to the appellants.  
8.           On the other hand, Authorized Representative of Respondent-Society contended that since the appellants/complainants, including some other members failed to make payment as demanded by them vide letter dated 10.4.2019 Annexure C-6 towards purchase of additional land cost payable on or before 31.5.2019, as per the DDA Cooperative Housing Society Amended Rules, as such, they themselves are responsible for causing delay in progress to be carried out by the society at the project site. He strongly contended that the complainants being members of the society did not fall within the definition of consumer and that the order impugned passed by the District Commission needs to be upheld.
9.           First, we will deal with the objection taken by the respondent/opposite party to the effect that since the appellants/complainants have invested their money with the Society-opposite party, as such, they being members of the said society did not fall within the definition of consumer. It may be stated here that it is well settled law that a dispute between the society and its members can be entertained by the consumer Commission. In the case of The Secretary, Thirumurugan Co operative Agricultural Credit Society v/s M Lalitha (Dead) through LRs (Appeal (civil)  92 of 1998), decided on 11/12/2003, the Hon’ble Supreme Court of India held that  disputes between a cooperative society and its member regarding deficiency in service can be maintained under the Consumer Protection Act. Furthermore, in its order dated 13.04.2013 passed by the Hon’ble Supreme Court in Virender Jain v. Alaknanda Coop. Group Housing Society Ltd., (2013) 9 SCC 383, it was held that disputes raised by members of the society can be decided by the Consumer Fora. Similar view was taken by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case titled ‘Raj Kumar Goyal Vs. Kamal Chaudhary & 3 Ors.’, Revision Petition No.2644 of 2012 and Adarsh Nagar Pragatisheel Sehkari Awas Samiti Ltd. Vs. Chet Ram & 23 Ors., Revision Petition No.3119 of 2017, decided on 01.02.2018. In this view of the matter, objection taken by the respondent in this regard stands rejected.
10.           Now coming to the merits of this case, it may be stated here that it is not in dispute that the complainants had booked a residential unit in question, in the project in question, for which, over and above the amount of Rs.5,000/- as membership fee, they have paid an amount of  Rs.3,25,000/- as Ist installment vide cheque dated 3.4.2014 and Rs.12,05,000/- as IInd installment vide cheque dated 5.11.2014 i.e. totaling to Rs.15,35,000/-. It is also coming out from the record that thereafter the respondent/opposite party maintained silence for about 5 years i.e. till 09.04.2019 and raised another demand vide letter dated 10.4.2019 in the sum of Rs.4,50,000/-  to be paid in two equal monthly installments by 30.4.2019 and 31.5.2019 on the ground that it intended to purchase 2 Acres of extra land in view of the revised FAR from 400 to 200 under land pooling policy of Urban Ministry. It is also coming out from the record that on receipt of the said demand, the appellants wrote letters dated 17.4.2019, Annexure C-7, 09.09.2019, Annexure C-8  and 27.5.2019, Annexure C-9 requesting the respondent/opposite party to consider their request for cancellation of membership as it failed to make any progress in the last 5 years and further they are not in position to pay any extra and sudden demand. However, the said request was not acceded by the respondent/opposite party, as it showed its inability to refund the same, by way of sending letter dated 07.06.2019, Annexure C-9.
11.           Under above circumstances, the moot question which needs to be decided by this Commission is, as to whether, the appellants are entitled to get refund of their amount paid or not? It may be stated here that during arguments when this Commission put a specific question to Authorized Representative of Respondent-Society as to why possession of the unit in question has been delivered to the appellants, despite the fact that they have booked the unit in question as far as back in 2014 and paid substantial amount of Rs.15,35,000/-, he answered that it was on account of delay on the part of the competent Authorities/DDA & Urban Ministry in deciding and giving finality to the project, as a result of which, the project got delayed. It is significant to mention here that the respondent has failed to place on record not even a single evidence in the shape of any letter followed by reminders having been sent to the competent Authorities, to prove that after receipt of payment from the appellants in the year 2014, it requested the competent Authorities to take up the matter qua grant of approvals etc. for finality of the project in question. The respondent has also failed to convince this Commission as to what steps were taken by it qua development at the project site after receipt huge amount of Rs.15,35,000/- from the appellants in the year 2014 itself, especially, when it has been stated in its reply that they will not demand any further installment towards price of the unit in question and that they will reduce the size of the unit according to the payment of Rs.15,30,000/- will adjust the amount already paid towards it. In our considered opinion, if the respondent kept silent and did nothing at the project site, qua development and construction activities, for the period starting from 2014 till September 2018, as such, thereafter,  if there was any amendment made by the Delhi Development Authority for purchase of additional 2 Acres of land vide notification dated 11.10.2018, the said fact cannot be made a tool to wriggle out of the deficiency in providing service and negligence  adopted  by the respondent. Under these circumstances, the appellants/complainants cannot be made to wait for an indefinite period for getting a house in the said project at the whims and fancies of the opposite party. Under these circumstances, the complainants are held entitled to get  refund of the amount paid alongwith interest. The District Commission fell into a grave error in dismissing the consumer complaint by holding to the contrary.
12.           To wriggle out of the situation, Authorized Representative of Respondent-Society also contended with vehemence that since the appellants failed to make the payments Rs.4,50,000/- in two equal monthly installments payable by 30.4.2019 and 31.5.2019 as demanded vide letter dated 10.4.2019, as such, they being defaulters are themselves responsible for the delay in completing the project in question. We have considered this contention but do not agree with the same for the reasons given hereinafter. In our considered opinion, once it has been proved that the respondent did nothing qua development and construction activities at the project site despite receiving huge amount of Rs.15,35,000/- from the complainants as far as back in 2014 till 2019 and still they were demanding more amount without doing any progress of construction and development at the project site, as such, the appellants were right in not making the remaining payment, in view of principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the project proponent is at fault in not delivering possession of the units/plots, it cannot expect the buyers to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. In this view of the matter, contention raised by the respondent is of no help to it.
13.           In view of peculiar facts and circumstances of this case, the complainants are held entitled for refund of the entire amount paid by them, towards the unit in question, alongwith interest @12% p.a. from the respective dates of deposits onwards, in view of  ratio of law laid down by the Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019; Anil Kumar Jain & Anr  Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019; Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021 and also in M/s Phoenix Infra Pvt. Ltd., Vs. Paramjit Kaur Tiwana, FA No.1855 of 2017 decided on 04.05.2022, wherein, under similar circumstances  award of interest @12% p.a. on the amount to be refunded by the developer to the complainants was upheld.
14.           Keeping in view the above discussion, we are of the considered view that the impugned order passed by the District Commission, being not based on the correct appreciation of evidence and law on the point, suffers from illegality and perversity, warranting interference of this Commission. Resultantly, this appeal stands partly stands partly allowed and the order impugned is set aside. The consumer complaint stands partly allowed and respondent- Jeevan Vasudha Welfare Society is directed as under:-

1. To refund the amount of Rs.15,35,000/- alongwith compensation by way of interest @12% p.a., without deducting any TDS, to the complainants, from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of default, till realization.
2. Pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.75,000/- to the complainants, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% p.a. from the date of default, till realization.

15.           Certified copies of this order be sent to the parties, free of charge.
16.           The appeal file be consigned to Record Room, after completion and record of the District Commission concerned be sent back immediately.

 

Pronounced

31.08.2023

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

(RAJESH K. ARYA)

MEMBER

 

 

 

Rg