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

                                  Consumer Complaint No.145 of 2015

                                 Date of institution:         06.04.2015

                                               Date of Decision:           25.08.2015

Satyapal Singh Godara son of Rameshwar Lal Godara resident of House No.94, Sarangpur, Chandigarh.

    ……..Complainant

                                        Versus

Bajwa Developers Limited, Desu Majra, Sector 125, Sunny Enclave, Tehsil Kharar, District Mohali through its Managing Director Shri Jarnail Singh Bajwa.

………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

ARGUMENTS HEARD AND DECIDED BY THE CORAM

Shri Amrinder Singh Sidhu, Presiding Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Ravi K. Mattoo, counsel for the complainant.

                Shri Kulwinder Singh, counsel for the OP.

(Amrinder Singh Sidhu,  Presiding Member)

ORDER

                The complainant pleaded in his complaint that he has availed the service of the Opposite Party (for short ‘the OP’) and hence he is a consumer. The OP carries  on the business of building, developing housing projects and further sale of plots falling in Sectors 123 to 125, Greater Mohali, also known as Sunny Enclave, Tehsil Kharar, District Mohali. The OP advertise about its projects and plots through various newspapers in order to allure common man to invest into its project/plots. In the month of March, 2012 the OP himself alongwith his officials convinced the complainant to purchase a plot in his project near village Jandpur to be named as New Sunny Enclave (as told by the OP). OP convinced the complainant to enter into an agreement to sell dated 13.03.2012 qua a plot falling in list No.329T measuring 150 sq. yards village E10, S.123 Jandpur, Tehsil Kharar for a total sale consideration of Rs.23,70,000/- ( Rs. Twenty three lacs seventy thousand only). The OP assured complainant to pay total amount in four installments of Rs.5,92,500/- each as the progress grows in the respective land. OP orally informed the complainant that after payment of earnest money, he is supposed to pay the first installment after three months from the date OP gets the CLU (Change of Land Use) clearance and lay out plan etc. and second installment after another three months when the plot is ready for possession.  OP assured complainant that they will inform him to pay the installment when CLU clearance and lay out plan is complete.  Though OP assured complainant that he will get the CLU clearance and lay out plan before the due date of first installment i.e. 13.06.2012 yet he failed to stick to his words. OP extended the date of first installment in agreement to sell 14 times right from 13.06.2012 to 22.08.2014 so that he can perform part of the agreement. Even after expiry of last extended date, OP failed to provide him the plot with all clearances and formalities required enabling him to raise the construction. Complainant sent legal notice dated 18.02.2015 either to provide plot ready for construction or to refund the money alongwith interest of two years. OP has withheld his hard earned money of Rs. 5,92,500/-  which was received by OP as earnest money for two years causing him continuous mental and physical agony. OP has acted in unjust, unfair and unreasonable manner for which complainant deserves refund of his earnest money alongwith interest @ 12% per annum.

                Lastly complainant prayed to allow the complaint and direct the OP:

(a)    to refund to the complainant amount of Rs.5,92,500/-  alongwith interest @ 12% per annum.

(b)    to pay to the complainant amount of compensation of Rs.One lakh on account of mental and physical harassment.

(c)    to pay to the complainant cost of Rs.15,000/- for litigation expenses.

2.             After the service of notice upon the OP, the OP appeared through counsel and filed written statement taking preliminary objections that transaction between the complainant and OP is purely sale agreement of plot for total sale consideration of Rs. Rs.23,70,000/-; complainant booked the plot with the OP with the complete knowledge that the approvals are yet to be taken and the OP with extra efforts got the approval on 15.10.2013 and draw of lots was done and the complainant was allotted plot No.92 and demand letters were issued through courier as well as through registered post to the complainant but the complainant failed to deposit any of the installment and the complainant requested for extension of time for payment  and on the request of the complainant agreement date was extended number of times till 22.08.2014 and the complainant has filed the present complaint to cover up the non payment and forfeiture of amount. The complainant has approached this Forum with unclean hands; complainant is in default of payment of installments; he is stopped by his own act and conduct; no cause of action arose to the complainant; there is no consumer/service provider relationship between the complainant and the OP; complainant is well aware that approvals of the project are under process and it will take time for getting the approval and possession of the plot. The OP got all the approvals and got all the licenses to develop colony from GMADA on 15.03.2013  but the complainant want to sell the plot at premium found that he is not fetching good price in the open market filed the present complaint for getting refund from the OP. The complaint is wholly misconceived; groundless and unsustainable in law; baseless; frivolous; vexatious; barred by limitation. On merits also the OP denied all the allegations made against them and prayed for dismissal of the complaint with costs.

3.             To succeed in the complaint, the complainant proved on record affidavit Exb.CW-1/1 and tendered in evidence documents Exb.C-1 to C-9.

4.             Evidence of the OPs consists of affidavit of Jarnail Singh Bajwa, OP No.2 Exb.OP-1/1 and copies of documents Ex.OP-1 to OP-4.

5.             We have heard learned counsel for the parties and we have also gone through written arguments filed by them.

6.             The main allegations  of the complainant are that OP was bound to obtain CLU clearance and lay out plans before the due date of first installment i.e. 13.06.2012. However, OP failed to stick to his words. OP extended the date of first installment in agreement to sell 14 times right from 13.06.2012 to 22.08.2014. Even after expiry of two and half years till 22.08.2014, the OP failed to provide him the plot with all clearance and formalities required enabling him to raise the construction. Complainant sent legal notice dated 18.02.2015 to OP either to provide plot ready for construction or refund the money alongwith interest of two years which is proved on record by Exb.C-2. The complainant is a consumer of the OP as the complainant has paid an earnest amount for the purchase of the plot along with clearance, facilities and other formalities in the above said project of the developer and builder who is not only seller but also service provider to the complainant. It is observed that OP has annexed copy of lay out plan as Ex OP-1 of village Chando and not of village Jandpur whereas OP has entered into agreement to sell for plot falling in village Jandpur as per agreement to sell which is Exb.C-1. Further OP has not placed on record any document that proves CLU or license to develop a colony in village Jandpur is obtained. OP has obtained the license to develop a colony in village Chando on 04.11.2014 which is Exb.C-3 but OP has no license to develop a colony in village Jandpur. So the OP failed to perform his part of getting approvals/sanctions from all the competent authorities in time including CLU of land of village Jandpur in order to execute sale deed  in favour of the complainant which amounts to deficiency in service on the part of the OP. Therefore, the complaint is partly allowed and  the OP is directed to refund to the complainant :-

a) Rs. 5,92,000/- (Rs. Five lacs and ninety  two thousand only) along with interest @ 9% P.A from the date of deposit till its actual realisation.

b) To pay Rs. 10,000/-( Rs. Ten thousand only) for litigation expenses.

                Compliance of this order be made within a period of forty five days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.

August 25, 2015.                    

(Amrinder Singh Sidhu)

Presiding Member

(Mrs. R.K. Aulakh)

Member