Punjab

Fatehgarh Sahib

RBT/CC/1228/2018

Sudarshan Maini - Complainant(s)

Versus

Bajwa Developers Ltd - Opp.Party(s)

Himanshu Raj

15 Mar 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FATEHGARH SAHIB.

                                                                    RBT/CC/1228/2018

Complaint No. 1228 of 2018

                                                                   Date of Institution: 28.11.2018

                                                                   Date of Decision: 15.03.2022

Sudarshan Maini, W/o D.D Maini, R/o H No.434, Jeewan  Aadhaar Corporative Society, Sec 48-A, Chandigarh, through authorized representative Vikas Maini, S/o Durga Dass Maini, R/o Flat No.33, Megha Terraces Scoeity, Wireless Colony, Aundh, Pune City, Pune, Maharashtra, 411007.                                                                     

                                                                                        …………....Complainant(s)

                                                Versus

Bajwa Developers Limited, Through its Managing Director/Directors/Promoters/Authorized Representative, office address: Sunny Enclave, Desu Majra, Kharar, Mohali.

 

..………....... Opposite Party(s)

Complaint under Section 12/14 of Consumer Protection Act 1986

Quorum

Sh. Pushvinder Singh, President

Sh. Manjit Singh Bhinder, Member

Ms. Shivani Bhargava, Member

 

Present: Sh. Himnanshu Raj, counsel for the Complainant.

     Sh. Amit Sharma, counsel for OP

Order By

Pushvinder Singh, President

 

1.                 The present complaint has been filed by the complainant against the OP(opposite party), with a prayer to direct the OP to return the amount paid by her along with interest, cost and compensation.
2.                   The complainant has alleged that two properties i.e. (Apartment No.1024 and plot no.536) have booked by the complainant and her husband for their own and family’s personal use. The complainant alleged that the OP is a private limited company, in corporate under the Companies Act, 1958, having its office at address mentioned above, engaged in the business of developing and promoting constructed and under constructed residential and commercial areas in lieu of valuable considerations for profit being their primary objective. The opposite party is the promoter and developer of Sector 74-A, Mohali and had approached the complainant in January, 2010 and persuaded her to purchase a flat in its said project, Sunny Apartments. It is pertinent to mentioned here that after complying with the initial formalities and by being fascinated by the advertisements and believing that such highly reputed builder would stand upto their reputation and deliver the said unit to the complainant on time and the complainant acts upon the commitments and promises made by the OP and paid the booking amount of Rs.2,00,000/- out of the total consideration i.e. Rs.12,00,000/-. That the complainant was allotted unit No.1024 by the OP in its project. The total amount paid by the complainant is annexed as Ex. C-2. That on 21.09.2011, the complainant and the OP entered into an agreement for sale annexed as Ex.C-3. That according to the agreement for sale the date of final payment has to be made by the complainant on 06.11.2012 i.e. date of delivery. But the OP was not having the permission from the GMADA authorities for setting up the residential colony in Sector 74-A, SAS Nagar, Mohali. It is pertinent to mention here that the complainant regularly used to communicate with the OP to know the actual date of delivery but the OP always used to dodge the question by giving vague/uncertain replies. That on 20.06.2017, i.e. six years from the date of booking of the unit, the OP furnished a document stating that as the Unit booked by the complainant is meant for EWS and if the complainant does not belong to the Economic Weaker Section then the complainant can opt for alternate units in alternate sectors. Letter from OP is annexed as Ex.C-4. But it is pertinent to mention here that even then, OP cannot retain the received amount for past six years because in doing so, OP virtually is seeking unjust enrichment of itself and OP by not starting construction of the unit for more than six years from the date of booking is at fault.
3.                Notice of this complaint was given to the OP. Sh. Amit Shamra Advocate, counsel appeared on behalf of the OP and filed the reply stating that the complaint is not maintainable as the Hon’ble Court does not have territorial jurisdiction to try and entertain the present complaint. The complainant has wilfully and intentionally suppressed and concealed material facts from this Hon’ble Court. As per the company policy and duly signed contract executed between the parties, OP is not liable to pay any interest in case the applicant does not fall under the EWS/LIC category of flat as per terms of the buyer’s agreement. She was supposed to submit an Income Certificate from the competent authorities to the effect that her income from all sources does not exceed Rs.3,00,000/- but she did not furnish the said certificate.  The complaint is hopelessly time-barred. The last payment was allegedly made on 20.05.2012. The period of limitation under the Consumer Protection Act is only 2 years whereas the complaint has been filed on 28.11.2018. The flat agreed to be sold was subject to furnishing of Income Certificate as well as Domicile Certificate in terms of Clause No.7 of the agreement to sell but the complainant did not furnish the same. So, OP denied all other allegations of the complaint and prayed for dismissal of complaint with costs.

 

4.                The complainant has produced copy of judgement passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi as Ex.C-1 and Ex.C-1A  vide which similar complaints were decided against Developers. The complainant also produced the detail of amount paid by her as Ex.C-2 along with receipt, copy of agreement for sale as Ex.C-3, copy of a letter written by OP on 26.06.2017 to the complainant as Ex.C-4, copy of an order passed by District Consumer Disputes Redressal Commission, Mohali as Ex.C-5, copy of an order passed by the Hon’ble National Consumer Disputes Redressal  Commission as Ex. C-6, copy of list of the complaints filed/pending against the OP as Ex.C-7, Authority letter as  Ex.C-8 calculation sheet as Ex.C-9. On the other hand there is no evidence on behalf of the OP.
5.                 We have heard counsel for complainant and gone through the file.   
6.                  The complainant has pleaded in the complaint and also deposed by way of affidavit that the complainant and her husband got booked flats from the OP for her own use and for the use of other family members. The complainant paid an amount of Rs.2,00,000/- as booking amount out of total consideration of Rs.12,00,000/- and she was allotted Unit No.1024 by the OP in its project and the total amount of the flat was paid by the complainant and in this regard an agreement for sale was executed and the complainant paid total amount of Rs.5,05,000/- out of entire sale consideration and the final payment is to be made on delivery of possession. The OP did not deny the booking of flat in the name of complainant and also did not deny the receipt of amount as alleged by the complainant. OP has alleged that the complainant misrepresented the OP that she belongs to Economical Weaker Section (EWS) and she was also supposed to submit an income certificate to the effect that her income from all sources does not exceed Rs.3,00,000/- per annum. But the complainant did not produce the certificate and as such she did not fulfil the prerequisites for allotment of flat.

7.                    We find that in case the complainant did not belong to the weaker section then the OP should not had booked the flat in the name of the complainant by receiving the amount. So the complainant is entitled to receive the amount paid by her from the OP as the OP failed to even construct the flats. The act and conduct of OP is a clear case of misrepresentation which resulted in the injury and loss of opportunity to the complaint. The builder is under the obligation to deliver the possession of flat within a reasonable period. The complainant cannot be said to wait indefinitely to get possession of the flat booked from the facts and evidence brought on record of the complaint it is clearly made out that OP knew from very beginning that it has not complied with the provision of PAPRA(Punjab Apartment and Property Regulation Act & Rules) and would not be able to deliver possession within the stipulated period, thus by misrepresentation in dues to the complainant to book the flat, due to which the complainant has suffered mental agony and harassment. In these circumstances the complainant is entitled to refund of the amount deposited by him along with interest and suitable compensation.

8.                As per Rule 17 of the “Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA, it has been provided as under: -

              “17. Rate of interest on refund of advance money upon cancellation of agreement. -The promoter shall refund full amount collected from the prospective buyers under sub section (1) of Section 6 together with interest thereon at the rate of 12% annum payable from the date of receipt of amount so collected till the date of re-payment. :"

9.              As a result of our aforementioned discussion, we accept the complaint of complainant and the OP is directed to refund the amount of Rs.5,05,000/- to the complainant along with interest @12% from the date of payment till the date of refund. The OP is also directed to pay a sum of Rs.25,000/- as litigation expenses. The compliance of this order be made by the OP within a period of 45 days on receipt of certified copy of this order. The copy of this order be provided to the complainant and OP free of cost. The file be return back to the District Consumer Commission, Mohali for consignment.

 Announced: 15.03.2022

                                                    

                                                                             (Pushvinder Singh)

                                                                              President

 

 

(Manjit Singh Bhinder)

                                                                             Member

 

                                                                                  (Shivani Bhargava)

                                                                                  Member