Chandigarh

DF-I

CC/79/2023

BHAWANA NAILWAL W/O SH. PARKASH NAILWAL - Complainant(s)

Versus

M/S BAJWA DEVELOPERS LIMITED, THROUGH ITS MANAGING DIRECTOR SH. JARNAIL SINGH BAJWA, - Opp.Party(s)

MUKESH VERMA

01 Jan 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/79/2023
Date of Institution	:	16/02/2023
Date of Decision	:	01/01/2024

 

Bhawana Nailwal w/o Sh. Parkash Nailwal r/o house No.541, Sector 40A, Chandigarh.

… Complainant

V E R S U S

M/s Bajwa Developers Limited, through its Managing Director, Sh. Jarnail Singh Bajwa o/o Sunny Business Centre, Fifth Floor, Above Gopal Sweets, Desumajra, Kharar, District SAS Nagar, Mohali.

… Opposite Party

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                               

ARGUED BY	:	Sh. Rajesh Verma, Counsel for complainant
	:	Sh. Shubham Tandon, Advocate Proxy for Sh. Navjot Singh, Advocate for OP

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Bhawana Nailwal, complainant against the opposite party (hereinafter referred to as the OP).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that the OP is a company being run under the name of M/s Bajwa Developers Limited, Sunny Business Centre, Desumajra, Kharar, District SAS Nagar, Mohali and had been selling the plots, flats etc. Being allured with the promises of the OP, complainant applied for a residential plot No.797 of 138.89 sq.yard with the OP in Sector 124, Sunny Enclave, Mohali (hereinafter referred to as “subject plot”) and paid the entire sale consideration of ₹17,00,000/- alongwith other amounts to the OP as per following details :-

S.NO.	DATE	PARTICULARS	AMOUNT	Annexure
	27.02.2014	Sale consideration	17,00,000/-	C-6
	10.01.2014	Transfer fee	10,000/-	C-1
	03.03.2014	Registry fee	1,52,610/-	C-3
	03.03.2014	External Development charges (EDC)	76,390/-	C-4
	08.12.2014	Demarcation fee	1,000/-	C-7
	19.05.2016	Fee related to House plan	43,432/-	C-8
	23.06.2016	Fee for plot regular	17,375/-	C-9
	12.03.2016	User charges of computerization of land records	3,000/-	C-10
	12.03.2016	Fee towards Inteqal	300/-	C-11
	19.05.2016	Suvidha fee	120/-	C-12
		Total	20,04,227/-

The OP transferred the subject plot in the name of the complainant vide transfer letter dated 22.2.2014 (Annexure C-2) and also got registered sale deed dated 12.3.2014 (Annexure C-5).  The OP also issued no dues certificate dated 19.3.2014 (Annexure C-6).  As per the registered sale deed, OP had disclosed to the complainant that it is owner in possession of the subject plot and there is no stay granted by any court of law qua the subject plot and the OP has not violated any act or rules of the Govt. while selling the property and in case  the subject plot is being sold by any wrong means or the transfer is held bad later on, OP will be legally responsible for the same and on these conditions, complainant had agreed to purchase the subject plot from the OP.  At the time of sale deed, only symbolic possession was handed over to the complainant and no physical possession was ever handed over. Complainant later on came to know that, in fact, OP has concealed the factum of one civil suit No.1275 of 2013 titled as Iqbal Singh & Anr. Vs. Sher Singh & Ors. pending in the court of learned Civil Judge (Jr. Division), Kharar qua the subject plot where the title/ownership of the same was in dispute.  Not only this, even the said civil suit has already been decided against the OP and the civil court has already held that the OP is not owner of the subject plot and the OP has been restrained from alienating the same by way of sale, gift, mortgage etc. by further holding that the sale deeds executed by the OP have become null and void. Copy of the order dated 11.2.2020 is Annexure C-13 whereas the copy of order dated 22.10.2020 is Annexure C-14. As the complainant has already paid an amount of ₹20,04,227/- towards the purchase of the subject plot and the OP is not in a position to deliver actual possession of the subject plot, free from all encumbrances, complainant is entitled for the refund of the aforesaid amount alongwith interest etc. OP was requested several times to admit the claim, but, with no result. Hence, the present consumer complaint.

2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, concealment of facts, cause of action, limitation, jurisdiction etc.  On merits, admitted that the subject plot was sold by the OP to the complainant by executing the sale deed. It is further alleged that the sale deed is legal and valid one and OP is bonafide purchaser for consideration without having notice of title of the plaintiffs in the said civil suit. It is denied that there is any deficiency in service or unfair trade practice on the part of the OP. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. Despite grant of sufficient opportunity, rejoinder was not filed by the complainant to rebut the stand of the OP.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the OP had sold the subject plot to the complainant vide sale deed (Annexure C-5), and also that the complainant had paid total amount of ₹20,04,227/-, inclusive of amount for execution of sale deed, its registration and mutation of the same, as is also evident from the documents/receipts (Annexure C-1, C-3, C-4 and C-6 to C-12), the case is reduced to a narrow compass as it is to be determined if the non-delivery of possession of the subject plot by the OP in favour of the complainant, even after the execution of the sale deed, amounts to deficiency in service and unfair trade practice on the part of the OP and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the consumer complaint is not maintainable as there is no deficiency in service or unfair trade practice on the part of the OP and also that the consumer complaint is barred by limitation and this Commission has no jurisdiction to try the same, as is the defence of the OP.
   2. The learned counsel for the complainant contended with vehemence that though the OP had executed the sale deed (Annexure C-5) qua the subject plot in favour of the complainant, but, as the OP has played fraud with the complainant by not disclosing that the title of the subject plot was not clear and also by concealing the fact that civil litigation was going on against the OP qua the land, including the subject plot, even at the time of execution of the sale deed and it has already been held by the learned civil court that the OP has no title with the said land, and even the sale deed executed in its favour by the erstwhile owner is null and void, the said act of the OP amounts to unfair trade practice and the complainant has continuous cause of action and also being consumer has right to seek refund of the amount paid by her, including the expenses for the execution of the sale deed etc.
   3. On the other hand, learned counsel for the OP contended with vehemence that as it is an admitted case of the parties that the sale deed qua the subject plot has already been executed by the OP in favour of the complainant and the OP has been left with no right, title or interest with the same, the consumer complaint is not maintainable before this Commission and the same be dismissed with costs.
   4. There is no force in the contention of learned counsel for OP as the sale deed (Annexure C-5) qua the subject plot, coupled with the receipts/documents (Annexure C-1, C-3, C-4 and C-6 to C-12), clearly indicate that entire sale consideration, including other charges, already stood paid by the complainant.  Perusal of sale deed (Annexure C-5) clearly indicates that the OP had specifically stated that no stay has been granted by any court with regard to the ownership of this land and by selling the plot, there will be no violation of Act, Rules and regulations of the Govt. and in case any fact comes out to be wrong, then seller will be responsible for the same.  However, perusal of the copy of judgment dated 11.2.2020, passed by learned Civil Judge (Jr. Division), Kharar clearly indicates that Iqbal Singh and Baldev Singh (plaintiffs) had filed a civil suit against Sher Singh & others, including the OP M/s Bajwa Developers Ltd., challenging the sale deed dated 29.6.2012 executed by defendant No.2 as attorney of defendant No.1 in favour of defendant No.3 (present OP) in the said suit and the said sale deed was declared null and void and ineffective against the rights of the then plaintiffs as the same was hit by the principle of lis pendens, making clear that, in fact, the OP had concealed material fact about the pendency of the earlier suit filed against it by the then plaintiffs Iqbal Singh and Baldev Singh qua the land, which included the subject plot, and has fraudulently and by misrepresenting sold the subject plot in favour of the complainant by receiving hefty amount from her, knowing fully well that its title qua the said plot was under challenge before the civil court. 
   5. Not only this, the specific allegations made by the complainant in para 12 of the consumer complaint that civil litigation was going on against the OP in the civil court by third person qua the land, including the subject plot, has not been specifically denied by the OP in its written version and all the allegations made by the complainant are deemed to have been admitted by the OP and an adverse inference has to be drawn against it. 
   6. Since there was no development at the site and there is no possibility of completion of the project or delivery of possession of the subject plot in near future, on account of the decree already suffered by the OP in the civil case, regarding which judgment (Annexure C-13) has already been passed against the OP, the cause of action qua the subject plot, against the OP, in favour of the complainant continues so far as the refund of the amount paid by the complainant as sale consideration to the OP is concerned.
   7. Admittedly, since the amount has been utilised by the OP, which is a trust money, for earning profits in its business, and also that there is no development at the site and further that the OP has been declared to have no right, title or interest with the subject plot, and has also been restrained from interfering over the same, it is evident that the said act and conduct of the OP is a clear case of misrepresentation and deception, which resulted in injury and loss of opportunity to the complainant. Had the complainant not invested her money with the OP, she would have invested the same elsewhere. The complainant otherwise also cannot be made to wait for perpetuity to get possession of the subject plot with which now even the OP has no title after the passing of the judgment and decree by the learned civil court and, in this manner, OP, being builder, is bound to compensate the complainant for the loss and harassment suffered by the complainant for its failure to deliver the possession.
   8. So far as the defence of  OP that the consumer complaint of the complainant is barred by limitation is concerned, as it has already been discussed above that even the title of the OP qua the subject plot has been declared by the learned civil court as null and void, the consumer complaint of the complainant for refund of the amount is within limitation from the date when the cause of action has arisen to the complainant, on knowing that the OP had deceived them by executing the sale deed and receiving huge amount from them by not disclosing about the defective title qua the subject plot in its name. 
   9. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the same deserves to succeed. 
4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OP is directed as under :-

1. to refund the total deposited amount of ₹20,04,227/-to the complainant alongwith interest @ 9% per annum from the respective date(s) of payment, as depicted in the table above, onwards.
2. to pay an amount of ₹80,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OP within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 01/01/2024 hg			Sd/-  [Pawanjit Singh] President
			Sd/-  [Surjeet Kaur] Member
			Sd/- [Suresh Kumar Sardana] Member