Chandigarh

DF-II

CC/399/2020

Tajinder Kumar - Complainant(s)

Versus

Managing Director, Bajwa Developers Ltd. - Opp.Party(s)

Rajesh Verma & Mukesh Verma

09 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	399 of 2020
Date  of  Institution	:	25.08.2020
Date   of   Decision	:	09.07.2024

 

 

 

 

 

1] Tajinder Kumar s/o Sh.Manohare Lal,

2]  Ashwani Kumar s/o Sh.Manohar Lal,

Both residents of H.No.17, Sector 52, Chandigarh

.... Complainants

VERSUS

Managing Director, Bajwa Developers Limited, Sunny Business Centre, Fifth Floor, Above Gopal Sweets, Desumajra, Kharar, Distt. SAS Nagar, Mohali 140301

.....Opposite Party

 

BEFORE:      MR.AMRINDER SINGH SIDHU,  PRESIDENT

                            MR.B.M.SHARMA             MEMBER

 

Present:-       Sh.Rajesh Verma, Counsel for the complainant    Ms.Dhivya Jerath, Counsel for OP (Through V.C.)

 

ORDER BY AMRINDER SINGH SIDHU, M.A (Eng.), LLM, PRESIDENT

 

1]       The complainants have filed the present complaint pleading that they purchased a residential Plot from the OP bearing No.41 H1 in Sunny Enclave, E-10, S-123, Village Jandpur on 25.6.2012 for a total consideration price of Rs.19,53,000/- and executed an agreement on 25.6.2012 (Ann.C-1).  It is stated that as per the Agreement, the payment was to be made in installments and receipts will be mentioned on the back of it. Accordingly, the complainants, from time to time, made payments totaling to Rs.14,06,000/-  and the same were mentioned on the back of the Agreement Ann.C-1 & signed by OP.  It is stated that despite paying 75% of the amount, the OP neither showed the location of the plot nor asked the complainants to take its possession. It is also stated that the complainants when visited the site found that there is agriculture land, no plots were carved out nor any demarcation was done nor the OP has taken permissions/approvals of the project from the authorities. It is submitted that the OP was to execute the sale deed of the plot and give possession by 18.12.2012 but nothing was done and the OP instead changed the plot number of the complainant from Plot No.41 H1 to 868 on 08.12.2017 at their own without any consent of the complainants.   It is pleaded that more than 8 years have passed but till date neither the possession of the plot was offered by the OP nor location of the plot was shown to the complainants. Hence, this complaint has been filed by the complainants against the OPs seeking directions to the OPs to refund of the deposited amount along with interest, compensation for mental agony and harassment, litigation expenses.

 

2]       After service of notice, OP appeared before this Commission through counsel, filed written version and while admitting the factual matrix of the case about allotment of plot, execution of agreement as well as receipt of amount alleged by the complainants, stated that the OP has not changed the plots of the complainants. It is stated that the complainants were offered flat and even the return of the amount but they delayed the entire proceedings in order to obtain higher rate of interest.  It is also stated that the complainants were assured that they can take the possession of the plot in question or any other plot suitable to them.  It is pleaded that the OP is still ready to deliver the possession of the plot of the choice of the complainants.  Denying other allegations, the OP has prayed for dismissal of the complaint.

 

3]       The complainants filed replication controverting the stand of the OPs made in their reply.

 

4]       Parties led evidence in support of their contentions.

5]       We have heard the ld.Counsel for the contesting parties and have gone through the documents on record including written submissions.

6]       From the submissions of the parties and the documentary evidence especially the Agreement to Sell dated 25.06.2012 placed on record as Annexure C-1 & C-2, it is observed that OP company had agreed to sell the subject plot i.e. measuring 105 measuring to the complainants  for total sale consideration of Rs.19,53,000/-. It is also observed from the Agreement & Receipt (Ann.C-1 & C2) that out of the total sale consideration, OP had received a sum of Rs.14,06,000/- qua the plot in question from the complainants.  It is relevant to mention here that OP has not only failed to deliver the possession of the plot in question to the complainants despite receipt of the substantial amount from them but also failed to refund the deposited amount to the complainants despite their requests which itself amounts to deficiency in service as also unfair trade practice on the part of OP.

7]       The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

    “15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there  was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”

         Further, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed as under:-

    “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

         The Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed as under:- 

“It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/ apartments, invites offers and collects money from the buyers. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

 

8]       Keeping in view the facts and circumstances of the case, we are of the considered view that the complainants cannot be made to wait for an indefinite period and OP who failed to deliver the possession of the subject plot within the a reasonable period to the complainants has no right to retain the hard earned money of the complainants. Thus, the complainants cannot be made to wait indefinitely for the possession of the unit allotted to them  and the complainants are entitled to seek the refund of the amount paid along with interest.

 

9]       In the light of above observations, the present complaint deserves to succeed against the OP.  Accordingly, the present complaint is partly allowed against the OP with directions to refund to the complainants the deposited amount of Rs.14,06,000/- along with interest @10% per annum from the respective dates of its deposit, as mentioned in the agreement (Ann.C-2 Pg.25 & 26) till the date of its actual payment to the complainants.

 

        The above said order shall be complied with by the OPs within a period of 60 days from the date of receipt of copy of this order.

 

10]      The pending application(s) if any, stands disposed of accordingly.

        The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.

Announced

09.07.2024                                                                    

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER