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

                                      Consumer Complaint No.287 of 2016                                         Date of institution:  18.05.2016                                         Date of decision   :  27.09.2017

Mrs. Himani Wadhwa wife of Munish Wadhwa resident of House No.149, Sector 19-A, Chandigarh.

                                  ……..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 read with

Section 14 of Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                          Shri Amrinder Singh Sidhu, Member.

Mrs. Natasha Chopra, Member.

Present:    Shri Pankaj Maini, counsel for the complainants.

                Shri Kulwinder Singh, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant, Mrs. Himani Wadhwa has 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 complainant had booked with the OPs 1 BHK Flat No.BR (360) 1360 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 17.04.2011. The complainant had paid a total sum of Rs.6,87,500/- to the OPs at various dates from 17.04.2011 to 25.07.2012. The final payment was to be made at the time of delivery on 07.02.2013. This date was mentioned by cutting the earlier date of 07.11.2012 in the agreement.  The complainant has further averred that at the time of executing the agreement with the complainant and other customers, the OPs were not having the permission from GMADA for setting up the residential colony under the name of Sunny Basant as the OPs received the permission from GMADA on 19.05.2014 subject to receiving approvals from other statutory bodies.  The flat sold to the complainant which was earmarked for EWS category but taken the money from the complainant under the general category which the OPs cannot do.  Neither the possession was offered to the complainant nor the OPs demanded payment of further installments from the complainant. As the OPs have not started the work at the site, they started extending the date regarding handing over the possession of the flat. Lastly the OPs have extended the date till 31.03.2015. As the OPs are not in a position to hand over the possession of the flat, the complainant has sought refund of the same. Hence this complaint for giving directions to the OPs to refund the amount of Rs.6,87,500/- alongwith interest @ 18% per annum till date; compensation of Rs.3,00,000/- for mental agony and harassment and Rs.2,90,000/- as punitive damages.

3.             The complaint is contested by the OPs by filing reply, in which it had 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 first installment failed to deposit the left over installments and the agreement in fact stood rescinded on 24.07.2015 as the last payment was received on 25.07.2012. By virtue of Section 27 of Limitation Act 1963, the rights of the complainant in the flat in question have already been extinguished.  On merits, the OPs have pleaded that no assurance regarding approvals of the flat was given by the OPs. The complainant was made aware that the approvals of the project are yet to be received and the complainant entered into agreement with complete knowledge that in case the approvals are not received, then he would be entitled for refund only and no interest/compensation will be given.  The OPs obtained the CLU from GMADA and work is in progress. The possession will be handed over as and when the construction is complete.  The earnest money has been forfeited as the agreement stood rescinded on 26.05.2015. Thus, denying deficiency in service on their part, the OPs have sought dismissal of the complaint.

4.             In order to prove the case, the counsel for the complainant tendered in evidence her affidavit Ex. CW-1/1; copies of agreement to sell Ex.C-1 and CLU 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.              Learned counsel for the complainant has argued that

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 17.04.2011 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 complainant is no more interested in the possession of the flat and confines her request for the refund of the amount along with interest and compensation for the harassment and mental agony suffered by her.

8.             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. She  is not entitled to any of the amounts claimed in the complaint and the same is liable to be dismissed.

9.             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.12,50,000/- she paid an amount of Rs.6,87,500/-. The complainant has given the details of those payments in para no.1 of her complaint.  The opposite party 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 her. Though she 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, she was justified in not making further payments as and when these facts came to her knowledge. The OPs cannot withhold her 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.6,87,500/-   (Rs. Six Lakhs Eighty Seven thousand five 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 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: 27.09.2017    

                                         (A.P.S.Rajput)           

President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member