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

                                  Consumer Complaint No.209 of 2016

                                        Date of institution:  18.04.2016                                         Date of decision   :  25.07.2017

Gaurav Passi son of Narinder Kumar Passi, resident of Flat No.102-A, Green Enclave, Lohgarh Road, Zirakpur.

 ……..Complainant

                                        Versus

M/s. Bajwa Developers Limited through its Managing Director Shri Jarnail Singh Bajwa, Office at Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali.

                                                            ………. Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President

Mrs. Natasha Chopra, Member.

Present:    Shri Abhishek Bhateja, counsel for the complainant.

                Shri Kulwinder Singh, counsel for the OP.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant Gaurav Passi 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 OP had floated a scheme for developing a housing project in Sector 74-A, Mohali under the name and style of Sunny Apartments. The complainant submitted application for booking of 1 BHK BR No.(1486) Apartment  No.1686 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 450 sq. ft. at a sale consideration of Rs.12,52,000/- . The complainant had purchased this apartment by paying initial amount of Rs.1,00,000/-. The complainant made further payment of Rs.57,500/- vide cheque  on 11.05.2011 and Rs.1,55,000/- on 12.05.2011. Thereafter buyers agreement was executed between the parties on 12.05.2011.  The OP had assured that the possession of the flat would be delivered by November, 2012. Then on 30.09.2011 the complainant made further payment of Rs.1,87,800/-  vide two cheque of Punjab National Bank. Then again on 02.02.2012 the complainant made payment of Rs.1,87,800/- vide cheque and further paid Rs.1,87,800/- vide cheque on 05.06.2012.  Thus, in all the complainant made payment of Rs.8,76,400/- to the OP. The entries of these payments have been made in the Buyers agreement issued by the OP. The complainant had not made payment of the rest installments as there was no construction/ development made by the OP. The agreement was executed by the OP with the sole intention to grab the money from the purchasers and to harass them. The OP has created the agreement in complete violation of provisions of Punjab Apartment and Property Regulation Act, 1995.  As per point No.3 of the agreement dated 12.05.2011 the OP is not even owner of the land in question. The OP has not raised any demand for the payment.  The complainant was and is still ready to make the payment provided the flat is handed over to him by the OP.  The complainant made number of calls and also visited the office of the OP but could not get a satisfactory response. The complainant also came to know that certain permissions were pending which are necessary for approval of the project and had not been taken by the OP. The complainant got issued a legal notice dated 23.03.2016 to the OP but no reply has been sent by the OP. Hence this complaint for giving directions to the OP to either handover the possession or  refund the deposited amount of Rs.8,76,400/- and Rs.10,000/-  alongwith interest @ 18% per annum; compensation of Rs.2,50,000/- for harassment and mental agony and Rs.33,000/- as litigation expenses.

3.             The complaint is contested by the OP by filing reply, in which it had raised certain preliminary objections, inter alia, that the complainant has committed default in making payments of installments, as per agreement an amount Rs.3,13,000/- deposited by the complainant is liable to be forfeited.  The complainant after deposit of Rs.8,76,400/- failed to deposit the left over amount and the agreement stood rescinded on 27.09.2012 as the last payment was received on 05.06.2012. Approvals of the project are under process and it will take time for getting the approval and possession of the flat.  The complainant had paid only Rs.8,76,400/- out of Rs.12,52,000/-. On merits, the OP has denied the averments of the complaint and prayed for dismissal of the complaint.

4.             In order to prove the case, the counsel tendered in evidence affidavit of the complainant Ex. CW-1/1; agreement to sell Ex.C-1; photographs Ex.C-2 to C-11; legal notice Ex.C-12; original postal receipt Ex.C-13 and information received under RTI Ex.C-14 and C-15. In rebuttal counsel for the OP tendered in evidence affidavit of Jarnail Singh Bajwa, MD Ex.OP-1/1.

5.             It has been argued by learned counsel for the complainant that 1 BHK BR No.(1486) Apartment  No.1686 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 450 sq. ft.  was allotted to the complainant at a sale consideration of Rs.12,52,000/-. Learned counsel has argued that the complainant had paid a total sum of Rs.8,76,400/- to the OP as per the agreement to sell  dated 12.05.2011. The possession of the flat was to be handed over to the complainant by November, 2012.  Learned counsel for the complainant has argued that the complainant did not pay the balance installments as there was no construction, development made by the OP. The complainant visited the OP number of times but no satisfactory reply regarding handing over the possession of the apartment was given to him. Learned counsel has thus prayed that the amount deposited by the complainant may be got refunded alongwith interest and compensation for mental agony, harassment besides costs of litigation. 

6.             On the other hand, the learned counsel for the OP has contended that the complainant has committed default in making payment of installments as per agreement to sell dated 12.05.2011.  Learned counsel for the OP further argued that all the necessary approvals and sanctions for the project in question are under process and there is no deficiency in service on the part of the OP.

7.             We have gone through the pleadings, evidence and written arguments of the complainant and heard the oral submissions addressed by the learned counsel for the parties. We are of the opinion that in the present case the complainant had purchased the apartment and paid Rs.8,76,400/- on different dates towards sale consideration of the apartment. The complainant did not pay the remaining installments as no construction/development work was taking place at the site. As per the buyers agreement Ex.C-1 the last installment was to be paid ten days before registration of the sale deed.  Thus, it is established from the material placed on record by the complainant that he is not a defaulter in making payment of the installments. The OP has not been able to produce any record to prove that it had offered the possession to the complainant before the stipulated date. Rather the complainant has submitted the photographs Ex.C-2 to C-11 to show that there is no development at the site.  Thus, the complainant is entitled to receive the deposited amount alongwith 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.8,76,400/-   (Rs. Eight Lakhs Seventy Six thousand Four hundred 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: 25.07.2017    

                                     (A.P.S.Rajput)                  

President

(Mrs. Natasha Chopra)

Member