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

                                  Consumer Complaint No. 283 of 2016

                                                Date of institution:  16.05.2016                                                 Date of decision   :  28.06.2017

Harpreet Kaur daughter of Joginder Singh, resident of House No.MIG 1367-C, Phase-X, SAS Nagar (Mohali) 160062.

……..Complainant

                                        Versus

M/s. Bajwa Developers Ltd., Regd. Office, SCO 17-18, Sunny Enclave, Desumajra, Kharar, District Mohali 140301 through its Managing Director Shri Jarnail Singh Bajwa.

                                                              ………. Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President 

Shri Amrinder Singh Sidhu, Member         

Mrs. Natasha Chopra, Member

Present:    Shri Divjyot S. Sandhu, counsel for the complainant.

                Shri Kulwinder Singh, counsel for the OP.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant Harpreet Kaur 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.             Allured by the advertisements and tall claims of the OP, the complainant  booked a  dwelling unit/flat in the project of the OP namely Sunny Apartment District SAS Nagar (Mohali) by paying Rs.1,00,000/- as token amount on 16.04.2011. The complainant paid to the OP Rs.1.50 lakhs on 22.04.2011 and two amounts of Rs.25,000/- on 27.04.2011 totaling to Rs.3.00 lakhs  as earnest money and an agreement to sell was also executed between the complainant and the OP on 31.07.2011. The complainant was allotted dwelling unit/flat No.1 BHK BR No.1313 in Khata No.Sunny Apartment situated in village F21 Mohali, Sector 74-A,117, SAS Nagar having area of 450 sq. ft. (approximately) in the aforesaid project by the OP at a total sale consideration of Rs.12.00 lakhs.  The complainant also paid an amount of Rs.1,80,000/- to the OP vide cheque which was acknowledged by the OP on 19.02.2012 on the reverse side of the agreement to sell. Thus, in all the complainant paid a total sum of Rs.4,80,000/- to the OP till 19.02.2012.   It was assured by the OP that the project would be completed soon and the possession would be delivered.  Thereafter, the complainant visited the OP many times for seeing the construction and progress of the flat. However, there was no construction at the site. The OP has also not raised any demand for payment of balance sale consideration.   The complainant then asked the OP to refund the deposited amount. The complainant is ready to pay the balance amount as per installments provided the sale deed of the flat is executed and possession is delivered to the complainant.  Hence this complaint for giving directions to the OP to refund Rs.4,80,000/- alongwith interest @ 18% per annum from the dates of deposit till realisation; to pay her Rs.5,00,000/- as compensation for mental and financial loss and Rs.1,10,000/- as litigation expenses.

3.             Upon notice, the OP caused appearance and filed reply in which it has raised certain preliminary objections, inter alia, that the complainant has purchased the flat in auction and as such she does not fall within the category of consumer.  As per terms of the agreement, the possession was to be delivered at the time of final installment. This Forum has no jurisdiction to entertain and try the complaint; as the complainant has committed default in payment of installments, as per agreement clause the amount deposited by the complainant is liable to be forfeited.  The complainant herself is at fault in making balance payment. 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 complainant tendered in evidence her affidavit Ex. CW-1/1 and copy of agreement to sell Ex.C-1. In rebuttal the OPs tendered in evidence affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.

5.             It has been argued by learned counsel for the complainant that dwelling unit/flat No.1 BHK BR No.1313 in Khata No. Sunny Apartment situated in village F21 Mohali, Sector 74-A,117, SAS Nagar having area of 450 sq. ft. (approximately)was agreed to be purchased by the complainant at a sale consideration of Rs.12,00,000/-.  Learned counsel has argued that the complainant had paid a total sum of Rs.4,80,000/- to the OP as per agreement to sell  dated 31.07.2011.  Learned counsel further argued that the OP has failed to handover the possession of the apartment to the complainant by 27.10.2012 which amounts to deficiency in service on the part of the OPs.

6.             On the other hand, the learned counsel for the OPs has argued that the complainant has booked two facts in her own name and as per the settled law by Hon’ble National Commission the person who booked more than one plot/flat is not a consumer.  Learned counsel argued that the complainant herself committed default in making payment hence she is not entitled to any of the amounts claimed in the complaint and the complaint is liable to be dismissed.

7.             We have gone through the pleadings, evidence and written arguments of the parties and heard the oral submissions, addressed by the learned counsel for the parties. Against the total price of Rs.12,00,000/- the complainant had paid an amount of Rs.4,80,000/-. The possession of the flat was to be handed over to the complainant by 27.10.2012. However, the OP did not start any construction at the site nor demanded any payment from the complainant.  The OP has not been able to rebut this plea of the complainant by any cogent evidence. The contention of the OP that the complainant has booked two flats with the OP and she is thus not a consumer of the OP is not acceptable. The complainant has specifically pleaded in Para No.3 of the complaint that she has two sons of marriageable age and in order to settle them she has agreed to purchase the flat from the OP.  Thus, non delivery of possession or refund of the deposited amount is a clear cut case of unfair trade practice and deficiency in service on the part of the OP.  Thus, the amount deposited by the complainant with the OP is to be got refunded to her alongwith interest.  Hon’ble State Consumer Disputes Redressal Commission in a latest decision 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.4,80,000/- (Rs. Four Lakhs  eighty thousand 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.            

                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: 28.06.2017    

                                         (A.P.S.Rajput)           

President

 (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member