IMPORTANT POINTS
Relief of refund - Possession had since already been taken by the Complainant, the relief of refund could not have been granted to the Complainant

ORDER (ORAL)

The present Appeal has been filed against the order dated 11.10.2018 of Punjab State Consumer Disputes Redressal Commission, Chandigarh (for short “the State Commission”) in Consumer Complaint No.1074/2017. This Appeal has been filed by the Complainant alleging that he had asked for refund of the deposited money but the State Commission had ordered for registration of the sale deed. It is submitted that the project was declared illegal in the year 2009 since the licence of the developer, i.e. the Respondent, had expired and that the Tehsildar had declared on 16.02.2018 that no sale deed can be executed in respect of this project. It is therefore submitted that the order of the State Commission be set aside and that the entire deposited amount be ordered to be refunded to the Complainant along with interest. It is contended that the Complainant is ready to hand over the possession of the subject flat to the Respondent.

2. The Respondents have not attended the proceedings despite service and therefore, ex parte arguments heard on behalf of the Complainant.

3. The facts as narrated by the Complainant in the Complaint are that the Complainant is a software engineer by profession and was visiting United State of America on some project and his parents were residing at Flat No.264, GBM Apartments at Kharar-Kurali Road, Village Khanpur, Tehsil Kharar, District SAS Nagar. That in the year 2009-2010, the Complainant was looking for a suitable accommodation in the vicinity of Chandigarh. The Respondent was developing a project called “GBM Apartments” at Khara-Kurali Road, Village Khanpur, Tehsil Kharar, District SAS Nagar. He booked one 3 BHK flat in the year 2010. Vide allotment letter dated 09.11.2010, flat no.264 on 2nd floor was allotted to him for total consideration of Rs.33,50,000/-. An agreement dated 09.11.2010 was also executed between the parties. Subsequent payments were made by the Complainant to the Respondent on several dates. It was contended that the Respondent failed to fulfil the promise and had not provided several items in the bedroom and drawing room. It was also contended that despite payment of 98% of the total payment due, the Respondent did not get the Sale Deed of the flat executed and after strenuous efforts, the Respondent agreed to execute the Sale Deed in the month of November 2016 but somehow it could not executed. Thereafter, the Respondent avoided the same. For execution of the Sale Deed, the Complainant has to travel from USA to India as well. Even his father had made numerous visits to the office of the Respondent for getting the Sale Deed registered. With these contentions, the Appellant has filed the present Appeal alleging that the failure of the Respondent to execute the Sale Deed amounts to deficiency in service.

4. The Respondent No.1 had taken several contentions. It was submitted that the Complainant had not approached the Commission with clean hands. That although the Complainant had taken possession of the flat but he had not so averred in the Complaint. That the possession was handed over as soon as the payment was made and the balance sum had not been paid by the Complainant despite several reminders and after taking possession, the Complainant did not pay single penny. That the Sale Deed was not executed because the balance money had not been paid by the Complainant. It was contended that it was a frivolous Complaint.

5. Parties led their evidences before the State Commission. After hearing the arguments of the parties and going through the evidences on record, the State Commission has held as under:—

“8. Per contra, learned counsel for opposite party No.1 has vehemently contended that the complainant has concealed material facts from this Commission as he had already taken the possession of the flat in question in the year 2013 and this fact is clearly depicted on the record of the case. Once the possession had already been taken, there is no question of refund of the depos