BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No. 16 of 2015
Date of institution: 07.01.2015
Date of Decision: 29.07.2015
Varinder Kumar Gupta son of Prem Chand Gupta resident of House No.31, Shivalik Enclave, NAC Manimajra, UT Chandigarh (being Karta of Hindu Undivided Family).
……..Complainant
Versus
1. The Managing Director, Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.
2. The Manager (Sales) Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Pankaj Maini, counsel for the complainant.
Shri Kulwinder Singh, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) pay him Rs.4,50,000/- as interest on the deposited amount of Rs.9,12,500/- w.e.f. 30.04.2011 and 28.06.2011.
(b) pay him compensation of Rs.5,00,000/- for mental torture, harassment, agony and pain.
(c) pay him Rs.2,00,000/- paid as rent by the complainant due to delay in possession.
(c) pay him punitive loss of Rs.3,50,000/-.
The case of the complainant that he has booked two flats bearing No. 681 2BHK, F-21 Mohali, Sector 74-A, 117 area of 900 sq. ft. on 28.06.2011 vide buyers agreement Ex.C-1 at a sale consideration of Rs.24.00 lacs and another flat one BHK Flat No.1040 F21 Mohali Sector 74-A, 111 for an area of 450 sq. f. at sale consideration of Rs.12.50 lacs vide agreement to sell dated 30.04.2011 Ex.C-2. The OPs have agreed to sell the fully constructed habitable flats to the complainant. As per the agreement the complainant has paid Rs.9,12,500/- to the OP as on 28.11.2011 after adjusting the amount of part paid sale consideration for flat No.1040. The said amount is now to be considered for part payment of the sale consideration for flat No.681 which is the subject matter of dispute before this complaint. The remaining amount was to be paid as 4th and final installment by 28.12.2012 and thereafter it was agreed that the possession of the flat will be handed over and the sale deed was to be executed within 10 days thereafter. The complainant found the OPs have not received the requisite sanction and approval from the competent authorities before executing the buyers agreement and receiving the payment in pursuance thereof from the complainant. When the OPs have failed to show any progress at site and has not handed over the possession of the flat in question, the complainant further waited till he got an intimation from the GMADA authorities vide Ex.C-3 that the letter of intent in favour of the Ops have been issued in favour of the competent authority on 19.05.2014. Thereafter disbelieving the promises made by the OP in the buyers agreement and for retaining his money without any corresponding approval benefit to the complainant, the OP has indulged into unfair trade practice for which the complainant has suffered financial loss and agony and therefore he has sought compensation by way of interest on the deposited amount and compensation for mental agony and financial loss due to deprivation of use and benefit of his agreed property and punitive damages, total being Rs.15.00 lacs. Legal notice sent by the complainant remained unanswered.
2. The Ops have denied the unfair trade practice on its part in the written statement filed by it and has further admitted having executed the buyers agreement and having received part consideration. As per the OP there is no specific agreed date for handing over the possession in the buyers agreement nor any verbal assurance regarding date of possession has been given by the OP. the OP has admitted having received the permission and sanction from the competent authority and taken a stand that the work is in progress and it is willing and ready to handover the possession to the complainant as and when the construction is complete. The OP has denied having received the legal notice and denied indulging into unfair trade practice.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-6.
4. Evidence of the OPs consists of affidavit of Jarnail Singh Bajwa, their MD Ex.OP-1/1.
5. We have heard learned counsel for the parties and have also gone through written arguments filed by them.
6. It is well settled law as has been held by the Hon’ble National Commission in Kamal Sood Vs. DLF Universal Ltd., 2007 (2) CLT 440 that a builder/developer collecting money from the consumers without having proper and necessary sanctions in its favour from the competent authorities has indulged into unfair trade practice. The facts of the present complaint are squarely covered with the decision of the Hon’ble National Commission. On the day of signing of buyers agreement Ex.C-1, the OPs are not even the owners of land in question for which they entered into an agreement to sell with the complainant. The third line of the buyers agreement state that the OPs have booked the said land from someone and are willing and ready to sell the same to the complainant. When a person who is not holding a good title in his own favour, he is prohibited under law to pass on the same to another person, being the purchaser of the same. During the course of arguments, the OPs have shown the documents pertaining to booking of land in question in their favour from the other buyers but the perusal of the same reveals that those documents were not pertaining to the land in question which is the subject matter of dispute between the parties in the present complaint. Therefore, after seeing the documents, the same were returned to the OPs. Once the OPs have failed to show the clear title in their own favour regarding the land on which they agreed to built the apartment and sell to the complainant, the OPs have indulged into unfair trade practice by signing the buyers agreement. The act of the OPs per se being an illegal act in executing the said buyers agreement, is an act of unfair trade practice on the part of the OPs. Further the grant of approval by GMADA vide memo dated 19.05.2014 as relied upon by the complainant in Para No.2 of his complaint is admitted by the OPs. The perusal of the same shows that the said permission has been granted by the authorities in favour of the OPs on 19.05.2014 whereas the OPs have already entered into buyers agreement with the complainant on 28.06.2011 Ex.C-1 and in pursuance thereof have also accepted the part sale consideration upto 28.112011. The perusal of Ex.C-3 i.e. letter dated 19.05.2014 shows that the OPs for the first time moved an application dated 05.07.2013 for grant of license of setting up of residential colony at Sector 117 and 74-A, SAS Nagar. Thus, the OPs have taken the steps to seek the permission even after one year after collecting the money from the complainant under the agreement to sell Ex.C-1. The further delay in this regard on the part of the OPs is an act of unfair trade practice which is a continuing cause of harassment and mental agony to the complainant. Thus, it is ample clear that on the day when the OPs entered into buyers agreement Ex.C-1 with the complainant, they were not having proper and necessary sanctions for development of land and raise the construction thereon. The act of the OPs without having proper and necessary sanctions in their favour on the day of signing of agreement to sell with the complainant is an act of unfair trade practice as has been held by Kamal Sood Vs. DLF Universal Ltd (supra). Since the OPs act of unfair trade practice has been amply proved by the complainant, the signing of buyers agreement without clear title in their favour by the OPs, collection of various amounts to the tune of Rs.9,12,500/- from the complainant without necessary sanctions, the complainant has certainly suffered financial loss and mental agony and harassment due to the acts of omission and commission of the OPs. Therefore, the complainant deserves to receive back his deposited amount alongwith interest @ 12% per annum w.e.f. from the dates of respective deposit till realisation. The grant of said rate of interest on the deposited amount is in consonance with the orders passed by the Hon’ble Punjab state Consumer Disputes Redressal Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others, 2014(2) CLT 401.
7. The complaint, therefore, is allowed with the following directions to the Ops:
(a) to refund to the complainant the total deposited amount of Rs.9,12,500/- (Rs. Nine lacs twelve thousand five hundred only) with interest thereon @ 12% per annum from the respective dates of deposit till actual realisation.
(b) to pay to the complainant lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty 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.
July 29, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
