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

                                  Consumer Complaint No.388 of 2015

                                 Date of institution:          04.08.2015

                                               Date of Decision:            06.04.2016

Meena Aggarwal wife of Vijay Aggarwal, through her power of attorney holder Mrs. Renu Gupta wife of Dinesh Gupta, resident of LIG 129, Sector 1, Parwanoo, Himachal Pradesh.

                                     ……..Complainant

                                        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 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Pankaj Maini, counsel for the complainant.

Shri Kulwinder Singh, counsel for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

1.             By this common order, we are disposing of 4 connected complaints, as detailed below, as all are having same controversy as well as similar question of facts and law:

Facts of complaint No.388 of 2015 titled as Meena Aggarwal Vs. The Managing Director, Bajwa Developers Limited & another.

2.             This complaint has been filed by the complainant through her power of attorney Mrs. Renu Gupta. As per the complainant, she had booked 2BHK BR No.(482) 2082, F21, Mohali Sector 74-A, 117 having 900 sq. ft. (approx.) area with the OPs for a total sale consideration of Rs.25,00,000/-. An agreement dated 10.05.2011 was also executed between the parties in which schedule of payment was also mentioned. As per the agreement, the final payment was to be made by the complainant on 10.11.2012 at the time of possession.  The complainant paid Rs.2.00 lacs on 19.04.2011 and then Rs.4,25,000/- on 01.05.2011 towards the sale consideration of the flat. The OPs after receipt of Rs.6,25,000/- from the complainant have not demanded any amount from the complainant nor handed over the possession of the flat to the complainant.  The complainant came to know that the OPs got the permission for the project from GMADA on 19.05.2014. Thus, according to the complainant, receipt of payment of Rs.6,25,000/- from her by the OPs in the year 2011, when they were not having necessary approval/sanction for the project, amounts to unfair trade practice and deficiency in service. Hence, the OPs are liable to refund the amount of Rs.6,25,000/- alongwith interest @ 24% per annum; compensation to the tune of Rs.5.00 lacs for mental agony  and punitive damages to the tune of Rs.75,000/-.

                In support of her case, the complainant tendered in evidence affidavit Ex.CW-1/1 and documents Ex.C-1 to C-2.

Facts of complaint No.389 of 2015 titled as Lt. Col. Pankaj Gupta Vs. The Managing Director, Bajwa Developers Limited & another.

3.             As per the complainant, he had booked 1BHK BR No. 1293, F21, Mohali Sector 74-A, 117 having 450 sq. ft. (approx.) area with the OPs for a total sale consideration of Rs.12,52,000/-. An agreement dated 30.04.2011 was also executed between the parties in which schedule of payment was also mentioned. As per the agreement, the final payment was to be made by the complainant on 30.12.2012 at the time of possession.  The complainant paid Rs.3,13,000/- on 30.04.2011 towards the sale consideration of the flat. The OPs after receipt of Rs.3,13,000/- from the complainant have not demanded any amount from the complainant nor handed over the possession of the flat to the complainant.  The complainant came to know that the OPs got the permission for the project from GMADA on 19.05.2014. Thus, according to the complainant, receipt of payment of Rs.3,13,000/- from him by the OPs in the year 2011, when they were not having necessary approval/sanction for the project, amounts to unfair trade practice and deficiency in service. Hence, the OPs are liable to refund the amount of Rs.3,13,000/- alongwith interest @ 24% per annum; compensation to the tune of Rs.5.00 lacs for mental agony  and punitive damages to the tune of Rs.4,87,000/-.

                In support of his case, the complainant tendered in evidence affidavit Ex.CW-1/1 and documents Ex.C-1 to C-2.

Facts of complaint No.390 of 2015 titled as Mrs. Arti Gupta Vs. The Managing Director, Bajwa Developers Limited & another.

4.             As per the complainant, she had booked 1BHK BR No.(566) 1466, F21, Mohali Sector 74-A, 117 having 450 sq. ft. (approx.) area with the OPs for a total sale consideration of Rs.12,00,000/-. An agreement dated 29.04.2011 was also executed between the parties in which schedule of payment was also mentioned. As per the agreement, the final payment was to be made by the complainant on 28.10.2012 at the time of possession.  The complainant paid Rs.3.00 lacs on 29.04.2011 towards the sale consideration of the flat. The OPs after receipt of Rs.3,00,000/- from the complainant have not demanded any amount from her nor handed over the possession of the flat to the complainant.  The complainant came to know that the OPs got the permission for the project from GMADA on 19.05.2014. Thus, according to the complainant, receipt of payment of Rs.3,00,000/- from her by the OPs in the year 2011, when they were not having necessary approval/sanction for the project, amounts to unfair trade practice and deficiency in service. Hence, the OPs are liable to refund the amount of Rs.3,00,000/- alongwith interest @ 24% per annum; compensation to the tune of Rs.5.00 lacs for mental agony  and punitive damages to the tune of Rs.5,12,000/-.

                In support of her case, the complainant tendered in evidence affidavit Ex.CW-1/1 and documents Ex.C-1 to C-2.

Facts of complaint No.391 of 2015 titled as Pardeep Garg Vs. The Managing Director, Bajwa Developers Limited & another.

5.             As per the complainant, he had booked 2BHK BR No.(975) 2175, F21, Mohali Sector 74-A, 117 having 900 sq. ft. (approx.) area with the OPs for a total sale consideration of Rs.25,00,000/-. An agreement dated 13.05.2011 was also executed between the parties in which schedule of payment was also mentioned. As per the agreement, the final payment was to be made by the complainant on 13.11.2012 at the time of possession.  The complainant paid a total amount of Rs.11,05,000/- to the OPs from 20.04.2011 to 11.06.2015 towards the sale consideration of the flat. The OPs after receipt of Rs.11,05,000/- from the complainant have not demanded any amount from him nor handed over the possession of the flat to the complainant.  The complainant came to know that the OPs got the permission for the project from GMADA on 19.05.2014. Thus, according to the complainant, receipt of payment of Rs.11,05,000/- from her by the OPs in the year 2011, when they were not having necessary approval/sanction for the project, amounts to unfair trade practice and deficiency in service. Hence, the OPs are liable to refund the amount of Rs.11,05,000/- alongwith interest @ 18% per annum; compensation to the tune of Rs.2.00 lacs for mental agony  and punitive damages to the tune of Rs.50,000/-.

                In support of his case, the complainant tendered in evidence affidavit Ex.CW-1/1 and documents Ex.C-1 to C-2.

Pleas of the OPs

6.             The common stand of the OPs in all the aforesaid complaints is that they have already filed suit for declaration against the complainants regarding the agreement to sell before the Civil Court and notice has already been issued to the complainants. The complainants are not consumers as no plot numbers have been allotted till date and they are prospective buyer. No ‘consumer-service provider’ relationship between the complainants and the OPs exist.  The complainants are stopped by their own act and conduct. The complainants have failed to pay the installments due within the period as per agreement.  Nowhere in the agreement any date for handing over the possession has been mentioned. The OPs have not given any assurance to the complainants regarding date of possession of the said flat.  The possession will be handed over as and when the construction is complete.  Thus the OPs have sought dismissal of the complaints.

                In evidence of the OPs, affidavit of Jarnail Singh Bajwa their MD has been tendered as Ex.OP-1/1 and order of civil court has been tendered as Mark-A.

7.             We have heard learned counsel for the parties and have also gone through the written arguments submitted by them.

8.             Before going into the merits of the complaints, it will be appropriate to address the preliminary objection raised by the OPs. As per the OPs, the complainants are not consumers within the meaning of Section 2 (1) (d) of the Act, as the complainants have only booked 1/BHK/2BHK flats and, therefore, the complaints are not maintainable. In support of his contention while arguing on the issue, the counsel for the OPs has relied upon two orders of the Hon’ble National Commission in Kamlesh  Gulati Vs. HUDA 2015 (2) CPR 640 and DDA & others 2015(2) CPR 640 and  Nirmala Devi Vs.Parveen Kumar & Others, 2015(1) CPR 454. As per counsel for the OPs a person who applies for allotment of a plot, will not be a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act if neither any allotment is made to him nor he is registered for and awaiting such an allotment. Since the complainants have only booked the flats with the OPs and, therefore, are not consumers. The plea of the OPs is contrary to the facts and evidence on record. The complainants have actually entered into agreements to sell dated 10.05.2011 Ex.C-1 in complaint No.389 of 2015 and similarly in other complaints as narrated under the respective complaint heads, with the OPs and the said agreements duly signed are binding between the parties. In furtherance of the said agreements, the complainants have made part payments of the agreed amount of sale consideration with regard to their respective flats and the said amounts have been duly received and acknowledged by the OPs. Thus the recital of the duly signed agreements with all the complainants clearly reveal that the complainants have been allotted specific flat Numbers by the OPs and the OPs have accepted the part payments against the agreed sale consideration.  Therefore, the complainants having availed paid services for purchase of fully developed and constructed flats from the OPs are consumers and fall within the definition of consumers as defined under Section 2 (1) (d) of the CPA and the plea of the OPs is not maintainable and the complainants are held to be consumers of the OPs.  

9.               Now on merits,  it is a well settled law as has been held by the Hon’ble National Commission  in Kamal Sood Vs. DLF Universal Ltd., 2007 (2) CLT 440  that a builder/developer collecting money from the consumers without having proper and necessary sanctions in its favour from the competent authorities has indulged into unfair trade practice. The facts of the present complaints are squarely covered with the decision of the Hon’ble National Commission.  On the day of signing of buyer’s agreements the OPs were not even the owners of land in question for which they entered into agreements to sell with the complainants. The buyer’s agreements state that the OPs have booked the said land from someone and are willing and ready to sell the same to the complainants. When a person who is not holding a good title in his own favour, he is prohibited under law to pass on the same to another person, being the purchaser of the same.  Once the OPs have failed to show the clear title in their own favour regarding the land on which they agreed to build the flats and sell to the complainants, the OPs have indulged into unfair trade practice by signing the agreements. The act of the OPs per se being an illegal act in executing the said buyer’s agreements, is an act of unfair trade practice on the part of the OPs. Further the grant of approval by GMADA vide memo dated 19.05.2014 as relied upon by the complainant in their complaints is admitted by the OPs. The perusal of the same shows that the said permission has been granted by the authorities in favour of the OPs on 19.05.2014 whereas  the OPs have already entered into buyer’s agreement with the complainants in the year 2011 and in pursuance thereof have also accepted the part sale consideration. The perusal of Ex.C-2 i.e. letter dated 19.05.2014  shows that the OPs for the first time moved an application dated 05.07.2013 for grant of license of setting up of residential colony at Sector 117 and 74-A, SAS Nagar.  Thus, the OPs have taken the steps to seek the permission even after two years after collecting the money from the complainants under the agreements to sell. Further delay   in this regard on the part of the OPs is an act of unfair trade practice which is a continuing cause of harassment and mental agony to the complainants. Thus, it is ample clear that on the day when the OPs entered into buyer’s agreements with the complainants, they were not having proper and necessary sanctions for development of land and raise the construction thereon. The act of the OPs without having proper and necessary sanctions in their favour on the day of signing of agreements to sell with the complainants is an act of unfair trade practice as has been held by Kamal Sood Vs. DLF Universal Ltd (supra). Since the OPs act of unfair trade practice has been amply proved by the complainants i.e, signing of buyer’s agreements without clear title in their favour, acceptance of part sale consideration from the complainants without necessary sanctions and approvals. The OPs have failed to discharge their contractual obligation leading to financial loss, mental agony and harassment to the complainants. Therefore, the complaints deserve to be allowed and the complainants deserve to be adequately compensated for mental agony, harassment and financial loss and forced litigation.

10.           The complainants, therefore, are entitled to receive back their deposited amounts alongwith interest @ 12% per annum w.e.f. from the dates of respective deposit till realization. The grant of said rate of interest on the deposited amounts is in consonance with the orders passed by the Hon’ble Punjab state Consumer Disputes Redressal Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others, 2014(2) CLT 401.

11.           Regarding award of compensation to the complainants, the counsel for the complainants has drawn our attention to the order dated 29.07.2015 passed by this Forum in CC No.16 of 2015 titled as Varinder Kumar Gupta Vs. MD Bajwa Developers & another  and many other complaints decided against the same builder i.e. the OPs, wherein this Forum has allowed the complaints against the OPs by issuing the directions to refund the deposited amounts alongwith interest and lump sum compensation of Rs.50,000/- and state that the facts of the present complaints are squarely covered by the orders of this Forum as stated supra.  The compensation awarded in the cases referred supra, as per counsel for the complainants is fair and just and is in accordance with the principle of law laid down in  Charan Singh Vs. Healing Touch Hospital and others, AIR 2000 Supreme Court 3138.  In Surendra Kumar Tyagi Vs. Jagat Nursing Home and Hospital and another IV (2010) CPJ 199 (NC), the principle of law laid down by the Hon’ble National Commission and followed by the Hon’ble State Commission UT Chandigarh in  Gurpreet Singh vs. Karbonn Mobiles India Pvt. Ltd. in First Appeal No.341 of 2014 decided on 31.10.2014 where the principle of fair and just compensation has been laid down. The OPs have not produced any contrary order on the issue.

12.             Hence the complaints are allowed with the following directions to the Ops:

(a)    In CC No.388 of 2015: to refund to the complainant the total deposited amount of Rs.6,25,000/- (Rs. Six lacs twenty five thousand only) with interest thereon @ 12% per annum from the respective dates of deposit till actual refund.

(b)    In CC No.389 of 2015: to refund to the complainant the total deposited amount of Rs.3,13,000/- (Rs. Three lacs thirteen thousand only) with interest thereon @ 12% per annum from the respective dates of deposit till actual refund.

(c)    In CC No.390 of 2015: to refund to the complainant the total deposited amount of Rs.3,00,000/- (Rs. Three lacs only) with interest thereon @ 12% per annum from the respective dates of deposit till actual refund.

(d)    In CC No.391 of 2015: to refund to the complainant the total deposited amount of Rs.11,05,000/- (Rs. Eleven lacs five thousand only) with interest thereon @ 12% per annum from the respective dates of deposit till actual refund.

(e)    to pay to each of the complainant a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order.

                A copy of this order be also placed in the connected files. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

April 06, 2016

                            (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                  Member