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

                                  Consumer Complaint No.424 of 2015

                                                Date of institution:  25.08.2015                                         Date of decision   :  25.10.2016

Suman wife of Chahara Sunder Lal, resident of House No.3038, Sector 38-D, 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, Suman wife of Chahara Sunder Lal, resident of House No.3038, Sector 38-D, 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 13.12.2010  with the OP for purchase of a Plot No.9861 measuring 140.5 sq. ft. in Revenue Estate,  Jhungian, Sunny Enclave, Desu Majra, Kharar  for a total sale consideration of Rs.19,24,800/-. The complainant at that time paid Rs.5,25,000/- to the OP as earnest money alongwith Rs.8,000/- and the remaining amount of Rs.13,99,800/- was to be paid in three installments i.e. 25% after eighty days, 25% after 150 days and 25% after 180 days. The OP assured to handover the possession and execute the sale deed on 12.10.2011.  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 complainant deposited Rs.1,49,500/- with the OP as stamp duty charges and also offered to pay the remaining amount. The OP issued allotment letter to the complainant on 06.09.2011 but did not handover the physical possession of the plot.  The OP assured the complainant that it would get the CLU clearance and layout plans before the date of execution of sale deed on 12.10.2011.  The complainant is ready and willing to fulfill his part of agreement and purchase the plot provided the OP handover the possession of the plot with all clearances. The complainant also got bank loan of Rs.14,00,000/- and the cheque of this amount was offered to the OP but it refused to accept the same on the ground that it is not in a position to handover the physical possession of the plot. The complainant had to pay Rs.7,721/- as loan processing charges and had paid EMIs @ Rs.8,439/- for the months of October, November and December, 2011. The date of execution of sale deed was lastly extended to 31.03.2015 by the OP. However, the OP failed to handover the possession by this date also. The complainant visited the OP on 17.07.2015 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 is living in a rented house and paying rent @ Rs.10,000/- per month. Hence the complaint for giving directions to the OP for refund of the earnest money of Rs.5,25,000/-; Rs.8,000/- booking amount; Rs.1,49,500/- stamp duty charges and Rs.7,721/- as loan processing charges alongwith interest @ 18% per annum and also to pay her  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 it has already filed civil suit for declaration regarding agreement to sell before the civil court and notice has been issued to the complainant and the present complaint deserves to be dismissed on this ground. 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.19,24,800/-. The complainant herself 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 her affidavit Ex. CW-1/1; copies of agreement to sell Ex.C-1; site plan Ex.C-2; receipt dated 13.12.2010 Ex.C-3; allotment letter dated 06.09.2011 Ex.C-4; letter dated 08.04.2011 Ex.C-5; cheque dated 04.10.2011 Ex.C-6; statement of account Ex.C-7 and receipt dated 12.10.2011 Ex.C-8.   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 was ready to make the payments as per the agreement but  the OP was not in a position to handover the possession, it continued to extend the date of execution of sale deed which was lastly extended to 31.03.2015. The complainant had also deposited with the OP stamp duty charges and had to pay loan processing fee for obtaining loan of Rs.14.00 lacs. The complainant even paid some of the EMIs towards loan.  The complainant offered the cheque to the OP but it did not receive it as it was not in a position to deliver the possession to the complainant. As the OP failed to handover the possession, 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 13.12.2010.  The complainant herself had agreed to pay the installments within the stipulated period as per the agreement dated 13.12.2010.  Learned counsel for the OPs 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 judgment citied by the counsel for the OP of Hon’ble State Commission, Punjab in case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh (Supra), is not applicable to the facts of the present case. The complainant has proved letter dated 08.04.2011 Ex.C-5 of HDFC Ltd. vide which loan of Rs.14.00 lacs was sanctioned. The complainant had paid Rs.7721.00/- to HDFC Ltd. for process of her loan case.  After sanction of the loan, Cheque Ex.C-6 dated 04.10.2011 in the name of the OP has also been proved by the complainant. The complainant has also proved document dated 14.08.2015 Ex.C-7 to the effect that EMIs of the loan has been paid by her to the bank. Further the complainant has also proved receipt dated 12.10.2011 issued by the OP in token of having received Rs.1,49,500/- towards stamp duty charges.  The complainant has specifically mentioned in para No.5 of her complaint that the cheque Ex.C-6 was duly offered to the OP but the OP refused to accept the same on the ground that it is still not in a position to handover the physical possession of the plot. The reply of the OP to this para is a vague reply that the complainant herself is at default in payment as per agreement/biana as per the settled law.  Thus, we find that the complainant is not defaulter in making payments but it is the OP who had refused to accept the cheque offered by the complainant because it was not in a position to handover the possession of the plot to the complainant.  Therefore, the complainant is entitled to refund of the deposited amount alongwith interest.  We also find that the complainant is also entitled to Rs.1,49,500/- which she has paid to the OP vide receipt Ex.C-8 dated 12.10.2011 as this amount was paid by the complainant towards stamp duty for execution of sale deed. The complainant is also entitled to get Rs.7,721/- from the OP as she has paid this amount towards charges for processing of loan from HDFC Ltd. the cheque she offered to the OP but the OP refused to receive the same.

8.             In view of our aforestated discussion, we direct the OP to refund to the complainant the deposited amount of Rs.5,25,000/- (Rs. Five lacs twenty five thousand  only) alongwith interest @ 12% per annum from the respective dates of deposit till actual payment. We also direct the OP to refund to the complainant Rs.1,49,500/- (Rs. One lac forty nine thousand five hundred only), paid by her towards stamp duty charges, alongwith interest @ 12% per annum from the date of deposit till payment. The OP shall also pay to the complainant  Rs.7,721/- (Rs. Seven thousand seven hundred twenty one only) with interest @ 12% per annum from the date when the complainant paid this amount to the HDFC Ltd. for processing of loan till actual payment. 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.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 45 days from the date of receipt of this order,                     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: 25.10.2016    

                                         (A.P.S.Rajput)           

President

                  (Amrinder Singh Sidhu)

Member 

(Mrs. R.K. Aulakh)

Member