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

                             Consumer Complaint No. 425 of 2016

                                 Date of institution:  14.07.2016                                        Date of decision   :  24.07.2017

Sanjay Sharma son of M.C. Sharma, resident of 1698, Aman Colony, Dhanas, Chandigarh.

……..Complainant

                                        Versus

Bajwa Developers Limited, Regd. Office at Sunny Enclave, Desu Majra, Kharar 140301 through its Managing Director Shri J.S. 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:    Complainant in person.

                Shri Kulwinder Singh, counsel for the OP.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant Sanjay Sharma 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 29.04.2011 with the OP for purchase of 1 BHK BR No.1289 in Sunny Apartment Village F21, Sector 74-A, 117, Mohali for sale consideration of Rs.12,00,000.00. The OP informed the complainant that it has in its possession requisite permission and approvals to sale the apartments to the buyers/consumers. As per the agreement, the complainant made payment of all the installments except the last installment which was to be paid at the time of delivery of possession of the apartment. As per the agreement, the OP was to handover physical possession of the flat within three years from the date of first installment i.e. 29.08.2011.  The complainant  visited the OP on 29.10.2012 with the last payment of Rs.1,80,000/-  but the representative of the OP told the complainant that due to some delay in the project, the OP is unable to deliver the possession to the complainant. And that the final installment will be taken at the time of delivery of possession.  The complainant again visited the OP in May, 2013 to know the status of the apartment, but no positive response was given to him.  The OP has failed to comply with the terms and conditions of the license and to the provisions of PAPRA Act.  As the OP has not delivered the possession of the apartment within time, the complainant sent a registered application to the OP for refund of the amount. The complainant also sent e-mails to the OP for refund of the amount but to no avail. The complainant requested the OP to give a firm receipt of the amount by mentioning the same on a fresh agreement with same date. However, the OP retained the original agreement with it when the complainant requested for refund of the amount.  The OP received the amount without getting any permissions and approvals as such the OP has indulged in unfair trade practice and is liable to refund the amount alongwith interest. Hence this complaint for giving directions to the OP to refund Rs.10,20,000/- alongwith interest from the respective dates of deposit till realisation; to pay him Rs.2,00,000/- as compensation for mental agony and physical harassment etc.  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;  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 as he has paid only Rs.10,20,000/- out of Rs.12,00,000/-. 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 dated 29.04.2011 Ex.C-1; information received under RTI dated 06.11.2015 Ex.C-2; letter dated 25.05.2016 Ex.C-3; e-mails Ex.C-4 and agreement dated 29.04.2011 Ex.C-5. 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 the complainant that flat No.1 BHK BR No.1289 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.12,00,000/-.  The complainant has argued that he had paid a total sum of Rs.10,20,000/- to the OP as per agreement to sell  dated 29.04.2011. The complainant has 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 complainant and learned counsel for the OP. Against the total price of Rs.12,00,000/- the complainant had paid an amount of Rs.10,20,000/-. The possession of the flat was to be handed over to the complainant by October, 2012. 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.10,20,000/-   (Rs. Ten Lakhs twenty 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: 24.07.2017    

                                  (A.P.S.Rajput)                  

President

 (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member