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

                                  Consumer Complaint No.560 of 2015

                                                Date of institution:  16.10.2015                                         Date of decision   :  18.10.2016

Radha Krishan son of Bal Chand, resident of House No.242, Top Floor, Sarangpur, U.T. Chandigarh.

                                  ……..Complainant

                                        Versus

Bajwa Developers Limited, Sunny Enclave, Desu Majra, Sector 127, Tehsil Kharar, District Mohali through its Managing Director, Jarnail Singh Bajwa.

                                                           ………. Opposite Party

Complaints under Sections 12 to 14

of the Consumer Protection Act

Quorum

Shri Ajit Pal Singh Rajput, President

Shri Amrinder Singh Sidhu, Member.                

Mrs. R.K. Aulakh, Member.

Present:    Shri S.P. Singh proxy counsel for Shri Baldev Singh Sodhi, counsel for the complainant.

                Shri Kulwinder Singh, counsel for the OP.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant, Radha Krishan son of Bal Chand, resident of House No.242, Top Floor, Sarangpur, U.T. Chandigarh has filed the present complaint against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The complainant had entered into agreement to sell dated 07.12.2012 with the OP for purchase of a Plot No.198 measuring 138.89 sq. ft. in Village E10, Sector 124, Jandpur, District Mohali  for a total sale consideration of Rs.22,63,907/-. The complainant paid Rs.10,000/- as initial amount and further paid Rs.5,54,000/- to the OP as earnest money. The remaining amount  was to be paid in three installments. The OP assured to handover the possession and execute the sale deed on 03.08.2013.  However, the OP extended the dates of handing over the possession and execution of sale deed from time to time as it was not in a possession to handover the possession which fact is mentioned in the agreement. The OP assured the complainant that it would get the CLU clearance and layout plans before the date of execution of sale deed.  The date of execution of sale deed was lastly extended to 30.06.2014 by the OP. However, the OP failed to handover the possession by this date also. The complainant visited the OP on 13.09.2015 and requested to handover the possession or refund the amount alongwith interest @ 18% per annum. However, after lingering on the matter for sometimes, the Op refused to refund the money to the complainant on the ground of recession in the market.  The complainant also got issued legal notice dated 14.09.2015 but the amount has not been refunded to him. The complainant is living in a rented house and paying rent @ Rs.10,000/- per month. Hence the complaint for giving directions to the OP to refund the amount of Rs.5,66,000/- alongwith interest @ 18% per annum and also to pay him  Rs.2,50,000/- for mental and physical harassment; Rs.5,00,000/- in lieu of rent paid by the complainant and Rs.30,000/- 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 this Forum does not have jurisdiction to try the present complaint and the transaction between the complainant and the OP is purely sale agreement for total sale consideration of Rs.22,63,907/-. The complainant himself has committed default in making payment of installments and as per the agreement the amount paid by the complainant is liable to be forfeited. There is no consumer-service provider relationship between the complainant and the OP. The complainant is not a consumer. The complainant was well aware that the approvals of the project are under process and it will take time for getting the approvals and possession of the plot.  The OP has got all the approvals and license to develop colony from
GMADA.   On merits, the OP has denied the averments and prayed for dismissal of the complaints.

4.             In order to prove the case, the complainant tendered in evidence his affidavit Ex. CW-1/1; copies of agreement Ex.C-1; legal notice dated 14.09.2015 Ex.C-2 original postal receipt Ex.C-3.   In rebuttal the OP 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 the complainant had entered into agreement to sell dated 07.12.2012 with the OP for purchase of a Plot No.198 measuring 138.89 sq. ft. in Village E10, Sector 124, Jandpur, District Mohali  for a total sale consideration of Rs.22,63,907/-. An amount of Rs.10,000/- as initial amount and Rs.5,54,000/- as earnest money was paid to the OP. However, the OP could not handover the possession on the stipulated date and continued to extend the date of execution of sale which was lastly extended to 30.06.2014. As the OP failed to handover the possession and ultimately the complainant sought refund of the amount to which the OP flatly refused. Thus, the OP has committed unfair trade practice and deficiency in service.

6.             On the other hand, the learned counsel for the OPs  has argued that the complainant has committed default in making payment of installments as per buyers agreement dated 07.12.2012.  The complainant himself had agreed to pay the installments within the stipulated period as per the agreements dated 07.12.2012.  Learned counsel for the OP has relied upon the decision of Hon’ble State Consumer Disputes Redressal Commission Punjab in case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh in First Appeal No.329 of 2015 decided on 01.08.2016, in which the Hon’ble State Commission while relying upon the decision of Hon’ble National Commission in 2015(1) CPJ 514 (Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd.)  has held in Para No.9 that as  the complainants were  defaulter in not making the payment of installments; to which they had agreed, they were not entitled to any interest.

7.             We have gone through the pleadings, evidence and written arguments and heard the oral submissions addressed by the learned counsel for the parties. We are of the opinion that in the present complaint also the complainant had paid Rs.5,66,000/- to the OP but did not pay the remaining installments as it is established from the material placed on record by the complainant. Thus the complainant cannot be held entitled to any interest on the deposited amount.

8.             In view of our aforestated discussion and the judgment citied by the OPs of Hon’ble State Commission, Punjab in case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh (Supra), we are of the view that the present case is also covered by the aforestated judgment.

9.             Accordingly, we direct the OP to refund to the complainant the deposited amount of Rs.5,66,000/- (Rs. Five lacs  sixty  six thousand only). We also find that the complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony caused due to negligent act of the OP and litigation cost of Rs.5000/- (Rs. Five thousand only).   The present complaint stands partly allowed.            

                The OP is further directed to comply with the order of this Forum within 45 days from the date of receipt of this order, otherwise the OPs shall be liable to pay 8% interest per annum on the total cost awarded.

                The arguments on the complaint were heard on 12.10.2016 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: 18.10.2016    

                                         (A.P.S.Rajput)           

President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

Member