Chandigarh

DF-I

CC/137/2024

HARJEET SINGH S/O SH. MOHINDER SINGH S/O SH. AJIT SINGH - Complainant(s)

Versus

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

RAJESH VERMA

05 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/137/2024
Date of Institution	:	07/03/2024
Date of Decision	:	05/09/2024

 

Harjeet Singh s/o Sh. Mohinder Singh s/o Sh. Ajit Singh r/o House No.3089/1, Sector 40-D, 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, Fourth 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. Mukesh Verma, Counsel for complainant
	:	Sh.Inder Pal Singh, Adv. for OP (OP already ex-parte)

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Harjeet Singh, complainant against the aforesaid 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 had carved out a number of plots of different sizes in Sector 124, Sunny Enclave, Mohali (hereinafter referred to as “subject project”) for residential as well as commercial purpose. Being allured by the OP, complainant applied for a residential plot No.794 of 150 sq.yard (hereinafter referred to as “subject plot”) with it in the subject project and had paid the entire sale consideration of ₹9,75,000/- to the OP alongwith ₹87,750/- as stamp duty and ₹21,000/- as registration fees, mutation fees etc. In addition to that, complainant had also paid all the requisite charges i.e. ₹25,000/- towards NDC transfer fees, ₹3,000/- towards registry typing fees and ₹1,500/- towards measurement fees which was acknowledged by the OP through receipts (Annexure C-1 to C-3).  After receiving the entire sale consideration, OP transferred the subject plot in the name of complainant vide registered sale deed dated 13.2.2017 (Annexure C-4) and had also issued No Dues Certificate dated 15.2.2017 (Annexure C-5). As per the registered sale deed dated 13.2.2017, OP had stated that it is owner in possession of the plot and there is no stay granted by any court of law on the land in question and the plot is not being sold by any wrong means and in case the transfer would be held bad later on, OP would be legally responsible.  However, later on the complainant came to know that the OP had played fraud with him by using unfair trade practice and by concealing all the material information about the subject plot as civil suit No.1275 of 2013 titled as Iqbal Singh & Ors. Vs. Sher Singh & Ors. was already going on between the parties. The said civil suit was decided vide order dated 11.2.2020 (Annexure C-6) by the Civil Court and it was held that the OP is not owner of the land in question and it was restrained from alienating the land by sale, gift, mortgage or in any other manner.  Since the OP was held to be not owner in possession of the subject plot, it cannot deliver the possession of the subject plot. In the case of one similarly situated plot owner, when she started construction of her house over plot No.812, which was purchased by her from the OP and was adjoining to the subject plot, one Jaswinder Singh had filed a civil suit against Seema and others and even in the said case status quo order was granted by the Court vide order dated 22.10.2020 (Annexure C-7) in favour of the original land owners. Thereafter, the complainant had approached the OP number of times with the request to hand over the actual possession of the subject plot to him or to refund the amount of ₹11,13,250/-, but, with no success despite of lapse of more than seven years.  In this manner, the aforesaid act of the OP amounts to deficiency in service and unfair trade practice. OP was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OP did not turn up before this Commission, despite proper service, hence it was proceeded against ex-parte vide order dated 8.5.2024.

2. In order to prove his case, complainant tendered/proved evidence by way of affidavit and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the complainant that the OP had sold the subject plot to the complainant vide sale deed (Annexure C-4), and also that the complainant had paid total amount of ₹11,13,250/-, inclusive of amount for execution of sale deed, its registration and mutation of the same etc., as is also evident from the documents/receipts (Annexure C-1 to C-5) and till date the OP has neither delivered the actual physical possession of the subject nor has refunded the amount paid, the case is reduced to a narrow compass as it is to be determined if 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.
   2. Perusal of the sale deed (Annexure C-4) qua the subject plot, coupled with the receipts/documents (Annexure C-1 to C-3), clearly indicate that entire sale consideration, including other charges, already stood paid by the complainant.  Perusal of sale deed further 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 (Annexure C-6), 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 the facts sold the subject plot in favour of the complainant by receiving hefty amount from him, knowing fully well that its title qua the said plot was under challenge before the civil court. Not only this, even the complainant has specifically alleged in para 8 to 10 of the consumer complaint about civil litigation going on against the OP in the civil court by third person qua the land, including the subject plot.  All these allegations made in the consumer complaint stands proved through the affidavit submitted by complainant and the evidence led by him, which has gone unrebutted.
   3. The learned counsel for the complainant contended with vehemence that though the OP had executed the sale deed (Annexure C-4) 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 him, including the expenses for the execution of the sale deed etc.
   4. Not only this, when there is 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 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 refund of the amount paid by the complainant as sale consideration and other miscellaneous charges to the OP is concerned.
   5. Moreover, since the amount has been utilized 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 his money with the OP, he 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 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 him for its failure to deliver the possession.
   6. 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, especially when the entire evidence led by the complainant is unrebutted.
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 ₹11,13,250/-to the complainant alongwith interest @ 9% per annum (simple) from the respective date(s) of payment onwards.
2. to pay an amount of ₹50,000/- 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 a period of 45 days from the date of receipt of certified copy thereof, failing which the amounts mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
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.

05/09/2024			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member