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

                                      Consumer Complaint No.722 of 2016

                                                Date of institution:  21.10.2016                                         Date of decision   :  05.12.2017

1.     Manpreet Singh son of Sukattar Singh

2.     Mr. Manish Katoch son of B.C. Katoch

        Residents of 1065, Sector 67, Mohali.

 ……..Complainants

                                        Versus

1.     The Managing Director, Bajwa Developers Limited, 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).

3.     Shri Jarnail Singh son of Bishan Singh, Managing Director, Bajwa Developers Limited, Sunny Enclave, Desu Majra, District SAS Nagar (Mohali).

                                                           ………. Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                          Mrs. Natasha Chopra, Member.

Present:    Shri Pawan Kumar Sharma, cl. for the complainants.

Shri Kulwinder Singh, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainants Manpreet Singh and Manish Katoch  have filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The complainants jointly booked flat consisting of 1 BHK BR  No.(399) 1399 having value of Rs.12,01,500/- and area of 450 sq. ft.  and agreement was entered into between the parties on 27.05.2011. As per the payment schedule mentioned in the agreement, the final payment was to be made on 27.11.2012. The date of handing over the possession was in the end of 2012. The complainants have paid Rs.6,60,000/- to the OPs from April, 2011 to 01.12.2012.  The OPs have not shown the permissions from the statutory bodies to establish the residential colony.  After receipt of Rs.6,60,000/-the OPs have not demanded any money from the complainants. There is no construction being carried out by the OPs at the site of the project. Hence this complaint for giving directions to the OPs to refund the amount of Rs.6,60,000/- alongwith interest @ 24% per annum; compensation of Rs.5,00,000/- for mental agony and harassment and Rs.25,000/- as costs of litigation.

3.             The complaint is contested by the OPs by filing reply, in which they have raised certain preliminary objections, inter alia, that the complaint is time barred as the complainant has made the last payment on 01.12.2012 and the present complaint has been filed on 21.10.2016 after a period of more than three years;  as the complainant has committed default in payment of installments thus 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.  On merits, the OPs have pleaded that they never informed the complainants that the possession will be delivered in the year 2012. In fact the complainants were clearly informed that the flats are meant for EWS category persons only and the approvals are yet to be taken. The complainants are not entitled to any refund as they have booked the flat posing themselves as members of EWS category whereas they failed to produce any document to prove that they are under EWS category. Thus denying the averments of the complaint the OPs have sought dismissal of the complaint.

4.             In order to prove the case, the counsel tendered in evidence affidavit of the complainants Ex. CW-1/1;affidavit of B.C. Katoch Ex.CW-1/2; affidavit Sukatar Singh Ex.CW-1/3; copies of agreement to sell Ex.C-1; receipt Ex.C-2 and letter from GMADA dated 16.12.2016 Ex.C-3.  In rebuttal the OP tendered in evidence affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.

5.              Learned counsel for the complainants has argued that the complaint is to be allowed on this ground that there was violation of the provisions of the PAPRA by the OPs 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 27.05.2011 whereas CLU has been granted by the GMADA on 19.05.2014. By selling the flat without the requisite permissions/sanctions the OPs adopted unfair trade practice. There is no likelihood of the completion of the Project in the near future and as such, the complainants are no more interested in the possession of the flat and confines their 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 OPs 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 complainants, against the total price of Rs.12,00,1500/- they had paid an amount of Rs.6,60,000/- as has been admitted by the OPs in Para No.1 of reply on merits in  their written statement.  The OPs had been collecting huge amounts from the buyers for the development of the Project. The amount received from the complainants-buyers 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 OPs to refund the deposited amount of Rs.6,60,000/-   (Rs. Six Lakhs Sixty Thousand only) to the complainants alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of 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 due to the negligent act of the OPs and litigation cost of Rs.10,000/-  (Rs. Ten thousand only). The present complaint stands allowed accordingly.   

                The OPs are 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: 05.12.2017    

                                           (A.P.S.Rajput)                 

President

(Mrs. Natasha Chopra)

Member