DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.550 of 2016
Date of institution: 06.09.2016 Date of decision : 05.10.2018
Varkha Bajaj wife of Shri Charan Singh, resident of Flat No.2450, Ground Floor, Mundi Complex, Sector 70, SAS Nagar, Mohali.
…….Complainant
Versus
1. The Bajwa Developers Limited through its Managing Director, Sunny Business Centre, Sunny Enclave, Sector 125, Near KFC, 5th Floor, District SAS Nagar Mohali.
2. Bajwa Developers Limited Sunny Business Centre, Sunny Business Centre, Sunny Enclave, Sector 125, Near KFC, 5th Floor, District SAS Nagar Mohali through its Manager (Sales).
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member.
Mrs. Natasha Chopra, Member.
Present: Shri Pankaj Maini, counsel for complainant.
Shri Amit Sharma, counsel for OPs.
Order by :- Shri G.K. Dhir, President.
Order
Complainant booked booth No.56 in Hill View Market situate in Sunny Enclave, Village Jhungia, Kharar by agreeing to pay Rs.17.00 lakhs in all. Agreement of sale dated 12.09.2010 was executed. Size of the booth was 10 feet x 30 feet. 70% of total cost of booth was paid by complainant on different dates. Rs.3,50,000/- was paid at the time of entering into agreement on 12.09.2010; Rs.1.00 lakh was paid on 07.03.2011; Rs.1.00 lakh more paid on 19.05.2011; Rs.67,000/- paid on 09.10.2011; Rs.1.00 lakh on 04.11.2011; Rs.1,47,000/- on 31.11.2011 (date erroneously mentioned); Rs.1,50,000/- on 14.04.2012 and Rs.1.00 lakh on 23.05.2012. Due receipts regarding receipt of these amounts were issued by OPs. Though actual possession was promised to be delivered by 12.03.2011, but thereafter new date after doing cutting was mentioned as 15.04.2011. These dates further stood extended upto 30.06.2011, then to 30.10.2011 and lastly upto 15.05.2012. However, when complainant visited office of OPs numerous times in June 2013, then it was found as if OPs have changed the booth number from 56 to 440. Complainant reconciled this fact because she had already paid Rs.11.00 lakhs to OPs. Complainant alongwith her husband had booked two plots with OPs for raising construction on those plots because complainant is running boutique in Sector 70 and needed proper place for running business for earning livelihood by way of self employment. It is not feasible for complainant, being lady to travel at odd hours and that is why booth was booked with OPs. On 20.10.2014 complainant alongwith her husband requested OPs to extend the time schedule. OPs initially expressed their inability, but subsequently adjusted the paid amount towards plot No.631/909 towards outstanding amount of plot No.854/862. Complainant requested for adjustment of amount paid against booth No.56/440 towards price of the plots, but OPs have not done anything for more than 1-1/2 years. Rather OPs by issue of letters dated 18.02.2014 and 30.08.2014 demanded balance price amount of booth No.440, which later on stood arbitrarily changed to No.1040 in Sector 125. Threat for charging interest @ 18% even was administered. When OPs contacted many times, then on 06.08.2016 allotment letter in respect of booth No.1040 in Hill View Market was handed over to complainant against her wishes. Booth No.1040 was mentioned on photocopy of agreement of sale dated 12.09.2010 and copy of allotment letter dated 06.08.2016 is attached with the complaint. As booth number has been changed illegally and in arbitrary manner and as such complainant by way of filing the complaint seeking refund of paid amount of Rs.11,14,000/- with interest @ 12% per annum with compensation for mental harassment and agony of Rs.2.50 lakhs.
2. In joint reply filed by OPs, it is pleaded inter alia as if complainant is not consumer because the booth in question booked for commercial purpose and not for earning livelihood by way of self employment. Besides, it is claimed that this Forum has no jurisdiction because transaction between complainant and OPs was based on agreement of sale of booth and complainant failed to deposit further installments as per schedule of agreement. Complainant booked the booth with OPs with full knowledge that approvals yet to be got by OPs. OPs by putting extra efforts got those approvals, but despite that complainant failed to deposit further installments. In view of default committed by complainant in making payment of installments, earnest amount of Rs.3,50,000/- liable to be forfeited as per Clause-3 of agreement. No cause of action alleged to have accrued in favour of complainant and moreover it is claimed that relationship of consumer and service provider do not exist between parties. Ops have got all the approvals and licenses for development of colony from GMADA, but complainant indulged in speculative motive with intention to sell the plot on finding premium. It is claimed that now the booth in question is not fetching good price and that is why complainant seeking refund from OPs. Present complaint alleged to be filed for abusing process of law and for harassing and blackmailing OPs and as such prayer made for dismissal of same with costs. Moreover, it is claimed that complaint is barred by limitation because agreement was arrived at on 12.08.2012, but present complaint filed on 30.08.2016 i.e. after delay of more than 24 months. Concocted story alleged to be made by complainant, but it is admitted that complainant was allotted booth No.1040 with advice to deposit installments. Complainant kept silent from 2014 to 2016 regarding allotment of booth No.1040 because she herself approached OPs for issuing allotment letter so that she can avail bank loan for making balance payment. It is claimed that complainant not entitled for refund of any amount or for compensation.
3. Complainant to prove her case tendered in evidence his affidavit Ex.CW-1/1 and then her counsel closed evidence. On the other hand counsel for OPs tendered in evidence affidavits Ex.OP-1/1 of Shri Jarnail Singh Bajwa, Managing Director and Ex.OP-1/2 of Shri Baldev Singh Bajwa, Director and thereafter closed evidence.
4. Written arguments not submitted by any of the parties. Oral arguments of counsel for parties heard and records gone through.
5. It is admitted through affidavit Ex.OP-1/2 of Shri Baldev Singh Bajwa, Director of OPs that amount of Rs.11,14,000/- in all has been deposited by complainant with OPs, out of total sale consideration amount of Rs.17.00 lakhs. In view of this admission on part of OPs, there remains no dispute that amount of Rs.11,14,000/- has been deposited by complainant with OPs in consideration of getting booth No.56 in Hill View Market for total sale consideration of Rs.17.00 lakhs. This booth number was subsequently changed to 440 and then to 1040 is a fact admitted by complainant and also by OPs in their submitted affidavits. Bone of contention remains as to whether booth No.1040 was changed without consent of complainant or not. No material produced on record to show the circumstances leading to change of this booth No.1040 from 440 by OPs. Though photocopy of agreement of sale Annexure C-1 shows that booth No.56 was originally agreed to be sold after acknowledging the received amount of Rs.11,14,000/-, regarding which endorsements made by OPs on the agreement itself, but updation of records letter dated 18.02.2014 Annexure C-3 shows as if booth No.1040 in Sector 125 was allotted to complainant subsequently. Same fact finds mention in letter dated 30.08.2014 sent by OPs to complainant and copy of allotment letter dated 06.08.2016 regarding booth No.1040 is produced as Annexure C-4 with the complaint itself. So these documents produced by complainant itself establishes that complainant was disclosed on 18.02.2014 itself that booth No.1040 has been allotted to her. Complainant was called upon to deposit due installments as per agreement through Annexure C-3, but no response thereto shown to be sent by complainant to OPs. Even demand was put forth through letter dated 30.08.2014 for deposit of next installment, but reply thereto not shown to be sent and as such certainly fault lays with complainant in not paying the due amounts.
6. It is claimed by complainant that requisite sanctions/approvals for development of the project have not been obtained by OPs and OPs have not produced any documentary proof to prove that such approvals actually have been received. If that be the position, then certainly it is made out as if OPs may not be in a position to handover possession of the booth and that is why complainant seeking refund of the paid amount.
7. It is contended by counsel for OPs that complaint is barred by limitation because last payment was made on 23.05.2012 and as such cause of action accrued with effect from that date. In view of Section 24-A of Consumer Protection Act, it is contended that complaint being not filed within period of two years from the accrual of cause of action, is barred by limitation. However, that submission of counsel for OPs has no force because perusal of above referred letters Annexure C-3 of dates 18.02.2014 and 30.08.2014 itself reflects as if after acknowledging allotment of booth No.1040 to complainant, demand of next installment was put forth from complainant. Moreover, allotment letter dated 06.08.2016 regarding this booth No.1040 issued by OPs under their signatures and as such this complaint being filed on 06.09.2016 after issue of this allotment letter dated 06.08.2016 is within limitation. It is after issue of this allotment letter which gave cause of action to complainant to claim refund of paid amount. If the allotment letter was issued on 06.08.2016, then certainly OPs could not have sought deposit of balance installments by issue of letters dated 18.02.2014 and 30.08.2014. It is so because no one can be supposed to pay full sale consideration amount of allotted booth before being sure as to which booth number is allotted to him or her. So cause of action virtually accrued to complainant w.e.f. 06.08.2016 and as such complaint is not barred by limitation.
8. Even as per law laid down in Vasant Mahadero Kate Vs. Shastri Gruha Nirman Sahkari Sanstha Ltd. II (2015) CPJ 4 (NC), purchaser of plot has continuous cause of action available to him unless and until possession of plot handed over to him. So in view of availability of recurring cause of action in favour of complainant till refusal, certainly complaint is not barred by limitation and submission of counsel for OPs to the contrary has no force.
9. Even if condition No.3 in agreement may be providing for forfeiture of the earnest amount in case payment of installments not made as per schedule, despite that enforcement of this clause by OPs is not legally tenable, because of provisions of Section 64 and 65 of Indian Contract Act.
10. Another contentious issue remains as to whether relationship of consumer and service provide exists between complainant and OPs or not. Complainant has specifically pleaded in the complaint and also alleged in the affidavit that booth in question purchased by her for carrying on business of boutique for earning livelihood by way of self employment because being lady it was difficult for her to travel during odd hours from Sector 70 after purchase of plot in Sectors 123-125, situate in same area, in which booth in question exists. So virtually booth in question booked by complainant for running business for earning livelihood by way of self employment and as such complainant is consumer within meaning of Section 2 (1) (d) read with explanation appended thereto of Consumer Protection Act, 1986.
11. It is also contended by counsel for complainant that 70% of price amount has already been paid, but CLU has not been got till date and as such submitted request through this complaint is appropriate. Certainly 70% of balance amount has been paid by complainant to OPs and it is not shown if OPs got approvals for the project in question, as discussed above, and as such certainly complainant entitled for refund of deposited amount of Rs.11,14,000/- with interest @ 12% per annum with effect from the dates of deposits till payment in view of provisions of Rule 17 framed under PAPRA Act, 1995.
12. As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.11,14,000/- (Rs. Eleven Lakhs Fourteen Thousand only) with interest @ 12% per annum from the dates of deposits till payment. Compensation for mental agony and harassment of Rs.20,000/- (Rs. Twenty thousand only) and litigation expenses of Rs.5,000/- (Rs. Five thousand only) more allowed in favour of complainant and against OPs. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order, failing which complainant will be entitled to interest on the amounts of compensation and litigation expenses @ 7% per annum after expiry of said period of 30 days of receipt of certified copy of the order till payment. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
October 05, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
