DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 246 of 2016
Date of institution: 29.04.2016 Date of decision : 20.07.2017
Nagar Singh son of Hakam Singh resident of VPO Kheri, Bajheri, Kharar, District Mohali.
……..Complainant
Versus
M/s. Bajwa Developers Ltd., through Shri Jarnail Singh Bajwa, Managing Director, Regd. Office: Sunny Enclave, 5th Floor, above Gopal Sweet, Sunny Tower, 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 R.K.S. Verka, counsel for the complainant.
Shri Kulwinder Singh, counsel for the OP.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Nagar Singh 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 complainant entered into agreement to sell dated 28.05.2011 for purchase of a one BHK Flat with covered area of 450 sq. ft. for value of Rs.12,50,100.00. As per terms and conditions of the agreement, the payment was to be made by way of six installments of different value. The final payment was to be paid on or before 28.11.2012. As per the agreement, the OP was to handover physical possession of the flat on 28.11.2012. The complainant paid an amount of Rs.1,25,000/- to the OP by cheque on 16.04.2011 and again paid an amount of Rs.1,87,500/- vide cheque on 26.05.2011 which were duly received by the OP. Thus the complainant had paid a total sum of Rs.3,12,500/- to the OP but to the utter surprise of the complainant the construction work has not been started yet and physical possession of the flat has not been given to the complainant till now. The complainant sent legal notice dated 21.12.2015 to the OP but no reply to it was given by the OP. On enquiry of the complainant, the OP informed that it will not return the amount of the complainant. Hence this complaint for giving directions to the OP to refund Rs.3,12,500/- alongwith interest @ 18% per annum; to pay him Rs.1,00,000/- as compensation and Rs.50,000/- as litigation expenses.
3. Upon notice, the OP caused appearance and filed reply in which it has raised certain preliminary objections, inter alia, that this Forum has no jurisdiction to entertain and try the complaint as the transaction between the complainant and the OP is purely of sale agreement of the flat; the complainant has committed default in payment of installments; the complainant is estopped by his act and conduct to file the present complaint against the OP; the complainant after deposit of installments failed to deposit the remaining installments as per agreement and that as per agreement clause the amount deposited by the complainant is liable to be forfeited. The complainant himself 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 counsel tendered in evidence affidavit of the complainant Ex. CW-1/1; copies of agreement Ex.C-1 and legal notice Ex.C-2. In rebuttal the counsel for the OP, tendered in evidence affidavit of Jarnail Singh Bajwa, MD of the OP Ex.OP-1/1.
5. It has been argued by learned counsel for the complainant that flat No.1 BHK BR No.1190 in 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.12,50,100/-. Learned counsel has argued that the complainant had paid a total sum of Rs.3,12,500/- to the OP as per agreement to sell dated 28.05.2011. Learned counsel further argued that the OP has failed to handover the possession of the apartment to the complainant which amounts to deficiency in service on the part of the OPs.
6. On the other hand, the learned counsel for the OP has argued that the complainant has not paid the full installments and committed default in making payment. Learned counsel has further argued that as per terms of the agreement, the possession can only be offered to the complainant if he has paid the entire installments but the complainant has not paid the balance installments. Hence the complainant 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.12,50,100/- the complainant had paid an amount of Rs.3,12,500/-. The possession of the flat was to be handed over to the complainant by 28.11.2012. However, the OP did not start any construction at the site. The OP has not been able to rebut this plea of the complainant by any cogent evidence. 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. Accordingly, the amount deposited by the complainant with the OP is to be refunded to him 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.3,12,500/- (Rs. Three Lakhs Twelve 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 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: 20.07.2017
(A.P.S.Rajput)
President
(Mrs. Natasha Chopra)
Member
