DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                      Consumer Complaint No.653 of 2015                                         Date of institution:  07.12.2015                                         Date of decision   :  24.01.2017

1.     Arvinder Singh son of Kulwant Singh resident of House No.399, Phase 1, SAS Nagar, Mohali.

2.     Mohinder Singh son of Kulwant Singh resident of House No.399, Phase 1, SAS Nagar, Mohali.

                                  ……..Complainants

                                        Versus

1.     The Managing Director, Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.

2.     The Manager (Sales), Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.

                                                      ………. Opposite Parties

Complaint under Section 12 read with

Section 14 of Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                          Shri Amrinder Singh Sidhu, Member.

Present:    Shri Pankaj Maini, counsel for the complainants.

                Shri Kulwinder Singh, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainants, Arvinder Singh and Mohinder Singh have filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12  read with Section 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The complainants booked with the OPs 2 BHK Flat No.BR(446) 2046 in F21, Sector 74-A, 117, Mohali for value of Rs.25,00,000/- having area of 900 sq. ft. (approx.). An agreement was entered into between the parties on 18.04.2011. The complainants paid to the OPs first installment of Rs.1,00,000/- on 18.04.2011, Rs.4,75,000/- on 18.06.2011 and Rs.50,000/- on 26.06.2011. Another amount of Rs.50,000/- was also paid to the OPs by the complainants. Thus, in all the complainants paid total amount of Rs.6,75,000/-. The OPs had assured that the possession of the flat would be handed over in the end of 2012.  As per the schedule of payment given in the agreement, the final payment was to be made by the complainants on 23.12.2012 i.e. at the time of giving the possession. However, the OPs have neither offered possession of the flat nor they demanded any further installments from the complainants. The complainants visited the site and found that no construction is being done by the OPs there. The OPs have received letter of CLU from the GMADA vide letter dated 19.05.2014. Thus, the OPs have illegally received the payment from the complainants in the year 2011 when they were not having any sanctions from the competent authorities for the flat to be handed over to the complainants. The OPs are using the funds of the complainants for other profitable business and earning profits which amounts to unfair trade practice.  Hence this complaint for giving directions to the OPs to refund the deposited amount of Rs.6,75,500/- alongwith interest @ 24% per annum from the dates of deposit till actual refund; compensation of Rs.2,75,000/- for mental agony and harassment and Rs.2,00,000/- as punitive damages.

3.             The complaint is contested by the OPs by filing reply, in which it had raised certain preliminary objections, inter alia, that the present complaint is not maintainable; this Forum has no jurisdiction to entertain and try the complaint; as the complainants have committed default in payment of installments, as per Clause 3 of the agreement the amount deposited by the complainants is liable to be forfeited. Approvals of the project are under process and it will take time for getting the approval and possession of the flat.  The complainants had not paid to the OPs Rs.6,75,000/- but only paid Rs.6,25,000/- against the sale price of the flat. On merits, the OPs have denied the averments of the complaint and prayed for dismissal of the complaint.

4.             In order to prove the case, the complainants tendered in evidence affidavit Ex. CW-1/1; copies of agreement to sell Ex.C-1;  letter dated 19.05.2014 Ex.C-2.. In rebuttal the OP tendered in evidence affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.

5.             It has been argued by learned counsel for the complainants that 2 BHK BR Apartment No.2046 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 900 sq. ft.  was allotted to the complainants at a sale consideration of Rs.25,00,000/-.  Learned counsel has argued that the complainants had paid a total sum of Rs.6,75,000/- to the OPs as per the agreement to sell  dated 18.04.2011. The possession of the flat was to be handed over to the complainants on 23.12.2012. As there was no construction, development made by the OP, the complainants visited the OPs number of times for refund of the deposited amount but without any result.  Learned counsel for the complainants has also argued that the OPs have received the payment for the apartment from the complainant in the absence of any sanction as the CLU was issued by the GMADA to the OPs on 19.05.2014.

6.             On the other hand, the learned counsel for the OPs has contended that the complainants have committed default in making payment of installments as per agreement to sell dated 18.04.2011.  The complainants themselves had agreed to pay the installments within the stipulated period as per the agreement to sell.  Learned counsel for the OPs has relied upon the decision of Hon’ble State Consumer Disputes Redressal Commission Punjab in case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh in First Appeal No.329 of 2015 decided on 01.08.2016, in which the Hon’ble State Commission while relying upon the decision of Hon’ble National Commission in 2015(1) CPJ 514 (Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd.)  has held in Para No.9 that as  the complainants were  defaulter in not making the payment of installments; to which they had agreed, they were not entitled to any interest.

7.             We have gone through the pleadings, evidence and written arguments of the parties and heard the oral submissions, addressed by the learned counsel for the parties. We are of the opinion that in the present case also the complainants had paid Rs.6,75,000/- to the OPs but did not pay the remaining installments as it is established from the material placed on record by the complainants. Thus the complainants cannot be held entitled to any interest on the deposited amount.

8.             In view of our aforestated discussion and the judgment citied by the OPs of Hon’ble State Commission, Punjab in case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh (Supra), we are of the view that the present case is also covered by the aforestated judgment.

9.            Accordingly, we direct the OPs to refund the deposited amount of Rs.6,75,000/- (Rs. Six Lakhs Seventy Five Thousand only) to the complainants. We also find that complainants are entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony due to negligent act of the OPs and litigation cost of Rs.5,000/- (Rs. Five thousand only).   The present complaint stands partly allowed.            

                The OPs are further directed to comply with the order of this Forum within 45 days from the date of receipt of this order, failing which the OPs shall be liable to pay 8% interest per annum on the total cost awarded from the date of order till actual payment.

                The arguments on the complaint were heard on 17.01.2017 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated: 24.01.2017    

                                         (A.P.S.Rajput)           

President

(Amrinder Singh Sidhu)

Member