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

                                      Consumer Complaint No. 02 of 2016                                           Date of institution:  01.01.2016                                         Date of decision   :  24.01.2017

1.     Gurinder Mohan Singh son of Ajit Singh resident of House No.HM-53, Phase 3B1, SAS Nagar, Mohali.

2.     Satinderjit Kaur wife of Gurinder Mohan Singh resident of House No.HM-53, Phase 3B1, 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, Gurinder Mohan Singh and Satinderjit Kaur 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 1 BHK Flat BR No.(16) 1016 in F21, Sector 74-A, 117, Mohali for value of Rs.12,50,000/- having area of 450 sq. ft. (approx.). An agreement was entered into between the parties on 16.04.2011. The complainants paid to the OPs first installment of Rs.2,00,000/- on 16.04.2011, Rs.1,12,500/- on 8.06.2011, Rs.1,87,800/- on 21.10.2011, Rs.1,80,000/- on 22.02.2012 and Rs.1,35,000/- on 31.12.2012.  Thus, in all the complainants paid total amount of Rs.9,65,300/- to the OPs. 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 08.12.2012 i.e. at the time of giving the possession. However, the OPs have neither offered possession of the flat nor they demanded any last installment 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 and 2012 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.9,63,500/- alongwith interest @ 18% per annum from the dates of deposit till actual refund; compensation of Rs.2,50,000/- for mental agony and harassment and Rs.1,84,700/- as punitive damages.

3.             The complaint is contested by the OPs by filing reply, in which they 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 of Rs.3,13,000/- 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 paid to the OPs Rs.9,63,500/-  only 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 1 BHK BR Apartment No.1016 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 450 sq. ft.  was allotted to the complainants at a sale consideration of Rs.12,50,000/-.  Learned counsel has argued that the complainants had paid a total sum of Rs.9,63,500/- 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. Learned counsel for the complainants has argued that the complainant did not pay the last installment as the same was to be paid at the time of handing over possession and registration of sale deed. As there was no construction, development made by the OPs, the complainant visited the OPs number of times seeking for refund of the deposited amount alongwith interest.  In support of this contention, learned counsel for the complainant has relied upon the decision of the Hon’ble State Consumer Disputes Redressal Commission Punjab in Managing Director Bajwa Developers Ltd. & Anr. Vs. Varinder Kumar Gupta, in First Appeal No.1269 of 2015 decided on 04.10.2016. It has been observed by the Hon’ble State Commission in Para No.10 as under:

“As per the agreement, the last payment was to be paid on 28.12.2012. Normally, the final payment is taken when the flats are ready for possession but in this case, nothing was done by the OPs upto 19.05.2014. In case no specific date for the possession is given then it should be a reasonable time and where the OPs has indulged in unfair trade practice then the complainant is entitled for refund of the amount deposited by him. In these circumstances, the order passed by the District Forum is justified giving refund of the amount deposited by the complainant. This factual and legal position was not rebutted by the counsel for the OPs.”

6.             On the other hand, the learned counsel for the OPs has contended that the complainant has committed default in making payment of installments as per agreement to sell dated 18.04.2011.  Learned counsel for the OPs further argued that all the necessary approvals and sanctions were received by the OPs for the project in question and there is no deficiency in service on the part of the OPs.

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 the complainants had paid Rs.9,63,500/- to the OPs but did not pay the last installment as the OPs had not got executed the sale deed of the flat of the complainants. As per the buyers agreement Ex.C-1 the last installment was to be paid at the time of registration of the sale deed.  Thus, it is established from the material placed on record by the complainants that they are not defaulter in making payment of the last installment. Rather it was the OPs who had not got the sale deed executed by stipulated date i.e. 08.12.2012. The OPs have not been able to produce any record to prove that they had offered the possession to the complainants before the stipulated date. Thus, the complainants are entitled to receive the deposited amount alongwith interest.

8.             In view of our aforestated discussion and the decision of the Hon’ble State Commission, Punjab in case titled as Managing Director Bajwa Developers Ltd. & Anr. Vs. Varinder Kumar Gupta (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.9,63,500/- (Rs. Nine Lakhs Sixty Three Thousand Five Hundred only) to the complainants alongwith interest @ 12% per annum from the respective dates of receipt till actual refund. We also find that complainants are entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony caused to them due  to the negligent act of the OPs and litigation cost of Rs.5,000/- (Rs. Five thousand only).   The present complaint stands allowed accordingly.            

                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. Copies 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