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

                                      Consumer Complaint No.505 of 2016

                                                Date of institution:  26.08.2016                                         Date of decision   :  12.12.2017

Sarabjit Singh son of Labh Singh (deceased) through LRs:

1.     Smt. Jaspal Kaur (widow)

2.     Shri Harkirat Singh (son)

3.     Ms. Ikjot Kaur (daughter)

residents of House No.927, Phase-7, SAS Nagar (Mohali) presently residing at H.No.28/1, Sector 125, Sunny Enclave, Kharar, Punjab.

 ……..Complainants

                                        Versus

Bajwa Developers Limited through its Managing Director Jarnail Singh Bajwa, Registered Office at Sunny Enclave, Village Desu Majra, Tehsil 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 Rajbir Singh Guron, cl. for the complainant.

Shri Kulwinder Singh, counsel for the OP.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant Sarabjit Singh had filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Section 12 of the Consumer Protection Act. However, during pendency of the complaint, Sarabjit Singh complaint died on 24.12.2016 and his aforesaid legal heirs were impleaded as party in the present complaint. The brief facts of the complaint are as under:

2.             The complainant applied to the OP for booking of 1 BHK Flat measuring 450 sq. ft. situated at Sunny Apartment F21, Sector 74-A, SAS Nagar (Mohali) for total price of Rs.12,00,150/-. The complainant paid Rs.1,00,000/- vide cheque dated 21.04.2011 at the time of booking and also paid Rs.1,00,000/- in cash on 21.04.2011.  An agreement dated 17.05.2011 was also executed between the complainant and the OP. The complainant thereafter paid Rs.1,80,000/- to the OP vide cheque dated 25.09.2011 and Rs.1,80,000/- in cash on 01.07.2012. Thus the complainant paid a total amount of Rs.6,60,000/- to the OP.  The OP had promised to handover the possession of the flat by 17.11.2012. However, despite lapse of 5 years from the date of agreement, the OP did not start construction at the site. The complainant made numerous visits to the OP requesting it to return his money. The complainant also came to know that the OP does not have the requisite permissions from the competent authorities to start construction and even title of the land on which the project is to be implemented is not clear nor the OP has permission to change the land use. The OP as a counter blast to the legal notice sent by the complainant for refund of the amount has filed a civil suit for declaration that nothing is due and outstanding to the complainant on account of cancellation of agreement. The complainant has not received any letter from the OP regarding cancellation of his booking. The complainant was always ready and willing to perform his part of the obligation and pay the balance sale consideration, however, the OP has abandoned the project.  Hence this complaint for giving directions to the OP to refund the amount of Rs.6,60,000/- alongwith interest @ 18% per annum from the dates of deposit till realisation; compensation of Rs.3,50,000/- for mental trauma  and harassment and Rs.55,000/- as costs of litigation.

3.             The complaint is contested by the OP by filing reply, in which it has raised certain preliminary objections, inter alia, that the complainant  has booked two flats one in his own name and the second in the name of his wife  and as per settled law by the Hon’ble National Commission, the person who booked more than one plot/flat is not a consumer. The OP has already filed the suit for declaration regarding the agreement to sell before the civil court and the present complaint is liable to be dismissed on this score alone.  The complainant committed default in making payment of installments and as per agreement the amount of Rs.3,00,000/- deposited by the complainant is liable to be forfeited.  After payment of some installments, the complainant failed to deposit the left over amount and the agreement in fact stood rescinded on 02.06.2012. By virtue of Section 27 of the Limitation Act, 1963 the rights of the complainant in respect of the flat in question have already been extinguished.  The complainant was well aware that the approvals of the project are under process and it will take time for getting the approval and possession of the flat. The complainant was made aware that LOI was received on 19.05.2014 from GMADA  but the complainant who got the flat for speculative purposes wanted to sell the same at premium. Now he has filed the present complaint as he is not fetching good price in the open market.  On merits, by denying the averments of the complaint have sought its dismissal.

4.             In order to prove the case, the counsel tendered in evidence affidavit of Harkirat Singh LR of the complainant Ex. CW-1/1; copies of agreement to sell Ex.C-1; legal notice Ex.C-2; civil suit filed by the OP Ex.C-3; copies of Aadhar Cards of LRs Ex.C-4 to C-6 and order of dismissal of civil suit Mark-A.  In rebuttal the OP tendered in evidence affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.

5.              Learned counsel for the complainant has argued that the complaint is to be allowed on this ground that there was violation of the provisions of the PAPRA by the OP and without having the requisite permissions/sanctions of the competent authorities it received amounts exceeding Rs.25,000/- and executed Agreement Ex.C-1 regarding the flat in dispute. The Agreement is dated 17.05.2011 whereas LOI has been granted by the GMADA on 19.05.2014. By selling the flat without the requisite permissions/sanctions the OPs adopted unfair trade practice. There is no likelihood of the completion of the Project in the near future and as such, the complainant is no more interested in the possession of the flat and confines his request for the refund of the amount along with interest and compensation for the harassment and mental agony suffered by him.

6.             On the other hand, it was submitted by the learned counsel for the OP that from the evidence produced on the record, it stands proved that it had already applied for permissions/sanctions of the competent authorities before the Agreement was executed and, as such, there was no violation of provisions of the PAPRA. The Project was exempted from the provisions of that Act and, as such, the complainant cannot invoke the same to get the relief claimed in the complaint. The complainant has booked two flats one on his name and the other on the name of his wife and thus he is not consumer.  The complainant is not entitled to any of the amounts claimed in the complaint and the same is liable to be dismissed.

7.             We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties. According to the complainants, against the total price of Rs.12,00,150/- he had paid an amount of Rs.6,60,000/- as has been admitted by the OP in Para No.12 of preliminary objections of the  written statement.  As regards contention of the OP that the complainant is not a consumer because he has booked two flats with the OP one on his name and the other on the name of his wife, the Hon’ble National Commission in  Kavijt Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developers Pvt. Ltd., 2016(1) CPJ 31 wherein it is held that unless it is shown that the complainant was engaged in the business of selling and purchasing of houses on regular basis, it cannot be said that merely because of the complainant had agreed to purchase three flats in the same complex, the said acquisition was for a commercial purpose.  In view of this decision of the Hon’ble National Commission, we hold that the complainant is consumer of the OP.  Even the civil suit filed by the OP against Sarabjit Singh has been dismissed in default by the court vide order dated 03.03.2017 Mark-A.

8.              The OP had been collecting huge amounts from the buyers for the development of the Project. The amount received from the complainants-buyers was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. It is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing its part of the Agreement. Except the bald statement of Jarnail Singh Bajwa, made in his affidavit Ex.OP-1/1, that the OPs had applied for the issuance of Letter of Intent or for permission for Change of Land Use before the Agreement, no supporting document has been proved on the record. The contents of the documents could have been proved only by the documents itself and the oral evidence produced by the OPs cannot be relied upon. By executing the Agreement Ex.C-1 and receiving the amount more than Rs.25,000/- the OPs had violated the provisions of PAPRA. It was not competent to execute the Agreement in respect of the flat and to receive different amounts. These acts on the part of the opposite party amount to adoption of unfair trade practice. In these circumstances the complainant is entitled to the refund of the amount so paid by him. Though he had not paid all the amounts as per the Agreement, yet keeping in view the fact that the opposite party had not obtained all the permissions/sanctions as per PAPRA from the competent authorities, he was justified in not making further payments as and when these facts came to his knowledge. The OPs cannot withhold his amount and is liable to refund the same along with interest. The Hon’ble State Consumer Disputes Redressal Commission 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.

9.             Accordingly, in view of our aforesaid discussion, we direct the OP to refund the deposited amount of Rs.6,60,000/-   (Rs. Six Lakhs Sixty 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 OPs and litigation cost of Rs.10,000/-  (Rs. Ten thousand only). The present complaint stands allowed accordingly.   

                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: 12.12.2017    

                                           (A.P.S.Rajput)                 

President

(Mrs. Natasha Chopra)

Member