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

Consumer Complaint No.927 of 2017

                                                Date of institution:  01.11.2017                                             Date of decision   :  04.10.2018

Joginder Singh son of Ishar Singh, resident of 222, Sector 45-A, Chandigarh.

…….Complainant

Versus

1.     M/s. Bajwa Developers Ltd. through its Managing Director,  having its registered office at Sunny Enclave,  Village Desu Majra, Tehsil Kharar, District Mohali.

2.     Mr. Jarnail Singh, Managing Director, M/s. Bajwa Developers Ltd.  c/o Sunny Enclave,  Village Desu Majra, Tehsil Kharar, District Mohali.

                                                            ……..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 Dinesh Madra, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant, on submission of registration form dated 23.01.2012 for allotment of plot measuring 125 sq. yards in PGI/PU/Govt. Employees Housing Enclave in Sunny Enclave, Sector 124, Mohali, was allotted plot bearing No.234 in draw of lots @ Rs.15,500/- per sq. yard. Total sale consideration price of the plot was Rs.19,37,500/-. Allotted plot was in Sector 124, Sunny Enclave, Kharar. Complainant was to make payment as per schedule of payment worked out in the agreement. Rs.50,000/- was paid in the first instance. That amount included Rs.5,000/- as token money for registration of plot. Rs.45,000/- was paid towards next installment. OPs raised demand of next payment of 25% of total sale consideration amount through letter dated 30.03.2012 and that is why complainant paid Rs.4,34,375/- vide cheque dated 08.04.2012, which was got duly encashed by OPs on its presentation through their banker on 11.04.2012. Balance 75% of amount was payable as per payment plan i.e. 20% was payable after CLU, but 25% by 10.10.2012; 20% by 10.01.2013 and balance 10% at the time of delivery of possession or execution of sale deed. It is claimed that OPs yet to obtain CLU and if at all the same obtained by OPs, then information regarding same never conveyed to complainant. OPs made demand of payment of next installment through their demand letter dated 16.05.2013 by threatening to charge penalty, if the next installment not paid. So complainant paid Rs.3,87,500/- vide cheque dated 30.05.2013, which was got encashed by OPs on 08.06.2013. Thereafter demand for next installment was put forth through letter dated 27.11.2014 and complainant paid amount of Rs.5,81,250/- through cheque dated 06.12.2014 which also was got encashed by OPs. OPs have not filed any application for CLU for Sector 124, but they have filed application for grant of CLU for construction in Sector 123 on 03.06.2013. That application was submitted after expiry of time for payment schedule. It is claimed that plot of complainant is situate in Sector 124 and not in Sector 123 and as such grant of CLU for Sector 123 has no relevancy for the complainant. Application filed by OP for grant of CLU for Sector 123, Village Chando Gobindgarh  has been accepted by the Govt. as per copy of CLU given to the complainant. Amount of Rs.14,53,125/- i.e. 75% of total sale consideration amount has already been deposited by complainant with OPs, but despite that OPs failed to handover possession of the plot. Criminal case as per news item published in Daily Tribune Chandigarh dated 20.08.2017 was lodged on the orders of court of Ms. Ekta Uppal, ld. Sub Divisional Judicial Magistrate, Kharar. Action of OPs in sale of plots without obtaining necessary sanctions/permissions being violative of provisions of PAPRA Act, 1995, is illegal. Consumer Complaint before Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh bearing No.736 of 2017  was filed, but the same was disposed of vide orders dated 31.08.2017 by finding that Hon’ble State Commission has no pecuniary jurisdiction. OPs vide letter No.8566 dated 20.09.2017 offered to handover physical possession of Plot No.234 of 125 sq. yards in Sector 123 Block T, Mohali, but complainant refused that offer vide e-mail dated 04.10.2017 because complainant was no longer interested in the plot in question. Possession of plot offered in Sector 123 is different than that of the plot purchased by complainant.  It is claimed that no development activity in the area of plot has been carried out by OPs and as such by claiming that OPs adopted unfair trade practice, this complaint filed after serving notice for seeking refund of the paid amount of Rs.14,53,125/- with interest @ 15% per annum of amount of Rs.11,22,334/- calculated upto August, 2017. Besides, compensation for deficiency in service due to adoption of unfair trade practice of Rs.5.00 lakhs and for mental agony and harassment of Rs.5.00 lakhs more claimed. Litigation expenses of Rs.55,000/- also was claimed.

2.             In reply submitted by OPs it is admitted that agreement for purchase of one plot measuring 125 sq. yards  was arrived at for total sale consideration amount of Rs.19,37,500/- and complainant deposited Rs.50,000/-. Admittedly demands were raised in accordance with terms of agreement.  It is claimed that payment schedule annexed with the complaint as Annexure C-3 is not part of agreement, but same reflects general scheme issued in respect of one proposed new friends enclave. General brochures and pamphlets do not form part of agreement. There is no concluded contract between the parties like Annexure C-3 because complainant is relying only on invitation for allotment of residential plot. However, it is admitted that invitation reflects payment schedule as under:      

                It is denied that there was any unilateral change in terms and conditions of allotment without consent of the complainant.  It is admitted specifically that amount of Rs.14,53,125/- has been received by OPs from complainant. Litigation alleged to be pending in the court of Ms. Ekta Uppal, Ld. Addl. Civil Judge (Sr. Division), Kharar. Suit for recision of the contract was filed by OPs on failure of complainant to make payment of balance sale consideration amount in time. Matter regarding registration of FIR as published in news item of the Tribune, Chandigarh is sub judice. Revision petition is pending before court of Smt. Anshul Berry, Ld. Addl. Sessions Judge, Mohali. An application under Section 340 of Cr.P.C. is also pending against Jagroop Singh and Amarjit Singh for wrongly obtaining orders from the court because they kept the court in dark. It is claimed that OPs reserve their right to seek damages from the complainant for defaming OPs. Allegations of adoption of unfair trade practice and of violation of provisions of PAPRA Act, 1995 specifically denied by claiming that OPs have already obtained exemption from operation of PAPRA Act vide notification dated 18.06.2013. Complainant was offered plot in Sector 123 of same size, but there is no acceptance on part of complainant with regard to invitation for offer of plot. Such action on part of OPs is within their right as per stipulations contained in invitation for allotment letter. Invitation letter binds provisional allottees to make full payment and to ensure clearance of cheque payments. Other averments of the complaint denied.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-15 and thereafter his counsel closed evidence. On the other hand counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Director of OPs and thereafter closed evidence. 

4.             Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.

5.             Earlier the complainant filed complaint before Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh  and the Hon’ble State Commission vide orders dated 31.08.2017 passed in Consumer Complaint No.736 of 2017 has held that the amount of reliefs claimed is less than Rs.20.00 lakhs and as such Hon’ble Commission has no pecuniary jurisdiction. So after passing of this order dated 31.08.2017, this complaint was filed in this Forum. This Forum bound to follow the orders passed by Hon’ble State Commission and as such it is held that this Forum has pecuniary jurisdiction.

6.             It is admitted by OPs in their reply as if amount of Rs.14,53,125/- has been received by them from complainant and as such the same admission enough to establish as if complainant paid Rs.14,53,125/- to OPs. Details of these payments are mentioned in letter Ex.C-10 sent by complainant to OPs and certification of clearance issued by bank also endorsed on      Ex.C-10. 

7.             Registration form Ex.C-1 produced to show that location of plot of size of 125 sq. yards is in Sector 124 G of Sunny Enclave, Mohali. Contents of Ex.C-2 establishes that in draw of lots, plot No.234 was allotted in the name of complainant. Payment schedule Ex.C-3 and invitation for allotment Ex.C-4 makes mention of rate of plot as Rs.15,500/- per sq. yard and that of the payment schedule. Rather payment schedule is worked out in invitation for allotment letter Ex.C-4. Through letter Ex.C-5 dated 16.05.2013 complainant was informed by OPs as if he (complainant) has booked plot in Sector 124 with Sr.No.18 at Sunny Enclave, Desu Majra, Kharar. Receipts of payment of different amounts produced as Ex.C-6 alongwith copy of statement of account of complainant Ex.C-9. Allotment of plot No.234 measuring 125 sq. yards in Sunny Enclave, Sector 123/124 to complainant is mentioned in Ex.C-7, but contents of possession letter Ex.C-15 discloses as if OPs offered to complainant to hand over possession of plot No.234 in Sector 123, T Block, Mohali and as such from this documentary evidence produced on record, it is made out that though invitation letter mentioned allotment of plot in Sector 124, Mohali to complainant, but later on location of this plot changed to Sector 123. That change of location is not acceptable to complainant and that is why he sought refund of the deposited amount of Rs.14,53,125/- through letter Ex.C-3 dated 21.09.2016 sent by him to OPs. As complainant was promised for delivery of plot in Sector 124 and as such if he refused to accept plot in Sector 123, then nothing wrong done by complainant because the same is within his right.

8.             Complainant has produced on record photographs numbering 7 as Ex.C-11 for establishing that no construction work on the spot has been carried out and nor any development activity carried there. No proof to contrary has been adduced by OPs and as such photographic evidence produced by complainant certainly support his submission that possession of plot cannot be handed over by OPs to complainant because of non development of area rendering the same fit for residential purposes. In view of that also, complainant entitled for refund of deposited amount with OPs.

9.             If in Mark-A photograph clipping of The Tribune news item, it is mentioned that fraud case has been registered against OPs on the orders of Ms. Ekta Uppal, Ld. SDJM, Kharar, then the same strengthens case of complainant to the effect that OPs not in a position to handover possession of promised plot. In view of that also inference of adoption of unfair trade practice by OPs liable to be drawn for rendering complainant entitled to refund of the entire paid amount with interest @ 12% per annum from the dates of deposits till payment, particularly when complainant has deposited more than 75% of sale consideration amount.  In view of payment of substantial amount by complainant to OPs, complainant entitled for refund of the entire amount with interest from the dates of deposits, particularly when OPs adopted unfair trade practice in not developing the project site and remained unsuccessful in delivering possession in the promised Sector. Submission advanced by counsel for OPs has no force that Ex.C-3 is not part of the agreement because perusal of Ex.C-3 reveals as if this payment schedule issued by OPs and not by anybody else. So terms of Ex.C-3 are certainly binding on parties because of issue of same by OPs before acceptance of payment of Rs.50,000/- on presentation of registration form. A person cannot be allowed to approbate and reprobate and as such also OPs cannot be allowed to claim that terms of the payment schedule Ex.C-3 not binding on them.

10.           Complainant certainly is consumer of OPs within meaning of Section 2 (1) (d) of CPA because he availed services of OPs for purchase of plot on payment of part of sale consideration with promise of paying balance amount on execution of sale deed or on getting of possession of plot in question. It is the case of complainant that OPs have not developed the project and as such fault lays with OPs in not fulfilling promise of delivering the possession to complainant. For that fault of OPs, complainant cannot be made to suffer and as such on equitable considerations also, complainant entitled for refund of paid amount of Rs.14,53,125/- with interest.

11.            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.

12.            As per case of Kushal K. Rana Vs. M/s. DLF Commercial Complex Ltd., 2015(1) CLT 134 (NC), terms and conditions of buyers agreement for purchase of flat/plot is not a one way traffic, but both the parties are bound by it. In the event of deficiency in service on part of builder, the builder bound to refund the received amounts with interest.

13.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.14,53,125/- (Rs. Fourteen Lakhs Fifty Three Thousand One Hundred Twenty Five only) with interest @ 12% per annum from the dates of deposit 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. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

October 04, 2018.

                                                                (G.K. Dhir)

                                                                President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member