DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.392 of 2016
Date of institution: 28.06.2016 Date of decision : 27.11.2017
Gurpreet Singh son of Balbir Singh, resident of House No.HL-70, Phase-VII, SAS Nagar, Mohali, Punjab.
……..Complainant
Versus
Bajwa Developers Ltd., Sunny Business Centre, 5th Floor, Gopal Sweets, Sector 125, New Sunny Enclave, Mohali through its Managing Director Jarnail Singh Bajwa.
………. Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Ms. Balwinder Kaur, counsel for the complainant.
Shri Kulwinder Singh, counsel for the OP.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Gurpreet Singh has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant had entered into an agreement dated 23.04.2011 with the OP. As per the agreement, the OP had agreed to handover the residential developed plot/one BHK (BR No.552), 1452 Khata No. Sunny, Khasra No. Apartment, Village F 21, Mohali, Sector 74A, 117, area 450 sq. yards for a total consideration of Rs.12,00,150/- which was rounded to Rs.12,00,000/- including development charges. The OP assured to handover the possession on or before 23.10.2012. The complainant paid Rs.3,00,000/- to the OP on 19.04.2011 in cash. The complainant paid first installment of Rs.1,80,000/- through cheque dated 23.08.2011 against receipt dated 24.08.2011, second installment of Rs.1,80,000/- through cheque dated 05.01.2012 against receipt dated 06.01.2012, third installment of Rs.1,80,000/- through cheque dated 06.07.2012 against receipt dated 13.07.2012, fourth installment of Rs.1,80,000/- through cheque dated 23.04.2013 against receipt dated 23.04.2013. The receipts are mentioned on the back side of first page of the agreement. Thus, till 23.04.2013 the complainant had paid Rs.10,20,000/- to the OP. After payment of fourth installment the complainant approached the OP for possession of the plot/one BHK but the OP assured that possession will be handed over within six months. The complainant visited the site many times but no progress was there. The construction work had not started at the site even in February, 2016. Finally the complainant requested the OP to handover the possession or refund the amount with interest as the OP has failed to give the possession of the flat as promised. The complainant even sent legal notice dated 26.04.2016 to the OP for refund of his deposited amount. The OP has neither sent any reply to the legal notice nor has any refund been made to the complainant. Hence this complaint for giving directions to the OP to refund the amount of Rs.10,20,000/- alongwith interest @ 18% per annum; compensation of Rs.3,00,000/- for mental agony and harassment and Rs.25,000/- as costs of litigation.
3. The complaint is contested by the OP by filing reply, in which it has raised certain preliminary objections, inter alia, this Forum has no jurisdiction to entertain and try the complaint as the transaction between the parties is purely sale agreement; as the complainant has committed default in payment of installments, as per Clause 3 of the agreement the amount deposited by the complainant is liable to be forfeited; the complaint is being filed without any cause of action; the complainant after deposit of some installments failed to deposit the remaining installments and the agreement in fact stood rescinded on 08.112012. By virtue of Section 27 of Limitation Act 1963, the rights of the complainant in the flat in question have already been extinguished. The complainant was well aware that the approvals of the project are under process and it will take time for getting approval and possession of the flat. On merits, the OPs have denied, the averments of the complaint and have sought dismissal of the complaint.
4. In order to prove the case, the complainant tendered in evidence his affidavit Ex. CW-1/1; copies of agreement Ex.C-1; cheques Ex.C-2 to C-4; receipts Ex.C-5 and C-6; legal notice Ex.C-7; postal receipt Ex.C-8 and original photographs Ex.C-9 and Ex.C-10. In rebuttal the OP tendered in evidence affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.
5. Learned counsel for the complainant has argued that the complaint is to be allowed on this ground that there was violation of the provisions of the PAPRA by the OP and without having the requisite permissions/sanctions of the competent authorities they received amounts exceeding Rs.25,000/- and executed the Agreement Ex.C-1 regarding the flat in dispute. The Agreement is dated 23.04.2011 whereas CLU has been granted by the GMADA on 19.05.2014. By selling the flat without the requisite permissions/sanctions the OP adopted unfair trade practice. There is no likelihood of the completion of the Project in the near future and as such, the complainant is no more interested in the possession of the flat and confines his request for the refund of the amount along with interest and compensation for the harassment and mental agony suffered by him.
6. On the other hand, it was submitted by the learned counsel for the OP that from the evidence produced on the record, it stands proved that they had already applied for permissions/sanctions of the competent authorities before the Agreement was executed and, as such, there was no violation of provisions of the PAPRA. The Project was exempted from the provisions of that Act and, as such, the complainant cannot invoke the same to get the relief claimed in the complaint. The complainant is not entitled to any of the amounts claimed in the complaint and the same is liable to be dismissed.
7. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties. According to the complainant, against the total price of Rs.12,00,000/- he paid an amount of Rs.10,20,000/-. The receipts issued by the OPs for Rs.10,20,000/- are Ex.C-5 and C-6. The OP had been collecting huge amounts from the buyers for the development of the Project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. It is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing its part of the Agreement. Except the bald statement of Jarnail Singh Bajwa, made in his affidavit Ex.OP-1/1, that the OPs had applied for the issuance of Letter of Intent or for permission for Change of Land Use before the Agreement, no supporting document has been proved on the record. The contents of the documents could have been proved only by the documents itself and the oral evidence produced by the OPs cannot be relied upon. By executing the Agreement Ex.C-1 and receiving the amount more than Rs.25,000/- the OPs had violated the provisions of PAPRA. It was not competent to execute the Agreement in respect of the flat and to receive different amounts. These acts on the part of the opposite party amount to adoption of unfair trade practice. In these circumstances the complainant is entitled to the refund of the amount so paid by him. Though he had not paid all the amounts as per the Agreement, yet keeping in view the fact that the opposite party had not obtained all the permissions/sanctions as per PAPRA from the competent authorities, he was justified in not making further payments as and when these facts came to his knowledge. The OPs cannot withhold his amount and is liable to refund the same along with interest. The Hon’ble State Consumer Disputes Redressal Commission in Ms. Sneh Sood Vs. M/s. Bajwa Developers Ltd. in Consumer Complaint No.240 of 2016 decided on 23.02.2017 has ordered refund of the deposited amount of the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund.
8. Accordingly, in view of our aforesaid discussion, we direct the OP to refund the deposited amount of Rs.10,20,000/- (Rs. Ten Lakhs Twenty Thousand only) to the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund. We also find that complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony due to the negligent act of the OP and litigation cost of Rs.10,000/- (Rs. Ten thousand only). The present complaint stands allowed accordingly.
The OP is further directed to comply with the order of this Forum within 30 days from the date of receipt of this order, failing which the amount of compensation awarded shall carry interest at the rate of 12% per annum from the date of this order till realisation.
The arguments on the complaint were heard 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: 27.11.2017
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
