Chandigarh

DF-II

CC/638/2020

Mrs. Santosh Guleria - Complainant(s)

Versus

Bajwa Developers Ltd. - Opp.Party(s)

Hitender Kansal Adv

10 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	638 of 2020
Date  of  Institution	:	01.12.2020
Date   of   Decision	:	10.07.2024

 

 

 

 

1] Mrs. Santosh Guleria W/o Lt. Sh.Tej Pal Guleria, Age 60 Years,

2]  Ashish Guleria Son of Lt. Sh.Tej Pal Guleria, Age 39 Years,

Both, Resident of No. 3455, Sector 23-D, Chandigarh-160023.

3]  Puneet Guleria Son of Lt. Sh. Tej Pal Guleria, Age 39 Years, Resident of Flat No. 32-C, Garden Villa, Nagla Road, Singhpura, Zirakpur, District SAS Nagar (Mohali)-140603.

.... Complainants

VERSUS

1]  Bajwa Developers Limited, S.C.O. No. 17-18, Sunny Enclave, Dasumajra, Kharar, Tehsil-Kharar, District SAS Nagar (Mohali)140301, through its Managing Director

2nd Address:

Bajwa Developers Limited, Sunny Business Center, 5th Floor, New Sunny Enclave, Sector-124, Tehsil Kharar, District SAS Nagar (Mohali)- 140301, through its Managing Director

2]  Jarnail Singh Bajwa S/ o Bishan Singh Bajwa, Managing Director Bajwa Developers Limited S.C.O. No. 17-18, Sunny Enclave, Dasumajra, Kharar, Tehsil-Kharar, District SAS Nagar (Mohali)140301.

2nd Address:

Jarnail Singh Bajwa S/ o Bishan Singh Bajwa, Managing Director Bajwa Developers Limited, Sunny Business Center, 5th Floor, New

.....Opposite Parties

 

BEFORE:      MR.AMRINDER SINGH SIDHU,  PRESIDENT

                            MR.B.M.SHARMA             MEMBER

 

Present:-       Sh.Hitender Kansal, Counsel for the complainant      Ms.Dhivya Jerath, Counsel for OP (Through V.C.)

 

ORDER BY AMRINDER SINGH SIDHU, M.A (Eng.), LLM, PRESIDENT

 

1]       The complainants have filed the present complaint being the legal heirs of Late Sh.Tej Pal Guleria.  It is stated that Late Sh.Tej Pal Guleria had booked a residential Plot with OPs measuring 125 Sq. Yds. in their project namely “New Friend Enclave, Sector 113, Tehsil Kharar, Distt. SAS Nagar, Mohali on 28.2.2012 by making payment of Rs.50,000/- against its total cost of Rs.19,37,500/-. Thereafter, an amount of Rs.4,35,000/- was paid to OPs at the time of executing Agreement to Sell dated 16.4.2012.  It is stated that the OPs made endorsement about the receipt of payment on the back side of the Agreement to Sell dated 16.4.2012  (Ann.C-2 to C-4).  Thereafter, an amount of Rs.3,87,500/- was paid to the OPs (Ann.C-5).  However, the OPs despite receipt of substantial amount of Rs.8,72,500/- neither obtained approvals, sanctions for the said project nor developed the project nor refunded the amount.  It is stated that Late Sh.Tej Pal Guleria had visited the OPs a number of time to even refund the amount but to no avail. Hence, this complaint has been filed alleging deficiency in service and unfair trade practice on the part of OPs with a prayer to direct the OPs to refund the deposited amount along with interest, compensation for mental agony and harassment, litigation expenses.

 

2]       After service of notice, OPs appeared before this Commission through counsel, filed written version and while admitting the factual matrix of the case about booking of plot, execution of agreement as well as receipt of amount alleged by the complainants as a matter of record, stated that the OPs never made claims to obtain CLU or Layout Plan before the due date of first installment.  It is stated that the complainant had no intention to buy the property rather he deceitfully chose to frame the OP and claim interest on the amount paid. Denying other allegations, the OP has prayed for dismissal of the complaint.

 

3]       The complainants filed replication controverting the stand of the OPs made in their reply.

 

4]       Parties led evidence in support of their contentions.

5]       We have heard the ld.Counsel for the contesting parties and have gone through the documents on record including written submissions.

6]       From the submissions of the parties and the documentary evidence especially the Agreement to Sell dated 16.4.2012 placed on record as Annexure C-3, it is observed that OPs had agreed to sell the subject plot i.e. measuring 125 sq. yd. to the complainant  for total sale consideration of Rs.19,37,500/-. It is also observed from the Agreement & Receipt (Ann.C-3 Pg. 33) that out of the total sale consideration, OPs had received a sum of Rs.8,72,500/- qua the plot in question from the complainants.  It is relevant to mention here that OPs have not only failed to deliver the possession of the plot in question to the complainants despite receipt of the substantial amount but also failed to refund the deposited amount to the complainants despite their requests which itself amounts to deficiency in service as also unfair trade practice on the part of OP.

7]       The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

    “15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there  was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”

         Further, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed as under:-

    “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

         The Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed as under:- 

“It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/ apartments, invites offers and collects money from the buyers. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

 

8]       Keeping in view the facts and circumstances of the case, we are of the considered view that the complainants cannot be made to wait for an indefinite period and OPs who failed to deliver the possession of the subject plot within the a reasonable period to the complainants has no right to retain the hard earned money of the complainants. Thus, the complainants cannot be made to wait indefinitely for the possession of the unit allotted to them and the complainants are entitled to seek the refund of the amount paid along with interest.

 

9]       In the light of above observations, the present complaint deserves to succeed against the OPs.  Accordingly, the present complaint is partly allowed against the OPs with directions to refund to the complainants the deposited amount of Rs.8,72,500/- along with interest @10% per annum from the respective dates of its deposit, as mentioned in the agreement (Ann.C-3 Pg.33) till the date of its actual payment to the complainants.

 

        The above said order shall be complied with by the OPs within a period of 60 days from the date of receipt of copy of this order.

 

10]      The pending application(s) if any, stands disposed of accordingly.

        The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.

Announced

10.07.2024                                                                    

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER