Chandigarh

DF-II

CC/796/2021

Inderbir Singh - Complainant(s)

Versus

M/s Bajwa Developers Limited. - Opp.Party(s)

Adv. Rajesh Verma

02 Aug 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Inderbir Singh s/o Sh.Manmohan Singh, Resident of House No.2416, Sector 35-C, Chandigarh 160022.

             … … … Complainant

Versus

M/s Bajwa Developers Limited through its Managing Director, 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

Argued by:    Sh.Mukesh Verma, Counsel for Complainant.

None for OP.

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

1]       The complainant has filed the present complaint pleading that the OP had offered the complainant one residential villa No.88 V, measuring 138.89 Sq.Yds. situated in Sector 124, Sunny Enclave, Village Jhungian, Tehsil Kharar, District Mohali, Punjab, for a total consideration price of Rs.56,00,000/-. The complainant paid an amount of Rs.48,00,000/- to the OP and the OP entered into an agreement to sell dated 19.06.2019 with the complainant and also issued payment receipt of Rs.48,00,000/- to the complainant. It is stated that in the agreement, both the parties have agreed that the remaining amount of Rs.8,00,000/- will be paid at the time of execution of registered sale deed. Copy of agreement to sell alongwith receipt is annexed with the complaint as Annexure C-2. It is stated that the OP failed to execute the registered sale deed for subject Villa on the ground that the same has already been sold to some other person and OP offered two residential plots i.e. Plot No.3161 & 3162 situated in Sector 124, Global City (Amazon City-2) Sunny Enclave, Tehsil Kharar, District Mohali, for total consideration price of Rs.9,73,000/- each i.e. Rs.19,46,000/- for both plots and promised to refund the balance amount of Rs.28,54,000/-. It is stated by complainant that the project in which his amount and villa was adjusted is not approved and no approval of any kind has been taken by OP from the competent authorities against the said plots and project. It is further stated that even OP has failed to give any date of possession. It is stated that the OP despite receipt of substantial amount of Rs.48,00,000/- neither obtained approvals from the Competent Authorities for the said plots and project nor refunded the amount. It is stated that the complainant had visited the OP a number of times to even refund the amount but to no avail. Hence, this complaint has been filed alleging deficiency in service and unfair trade practice on the part of OP with a prayer to direct the OP to refund the deposited amount along with interest, compensation for mental agony and harassment, litigation expenses.

2]       After service of notice, OP appeared and  filed written version and while admitting the factual matrix of the case took preliminary objections of limitation, jurisdiction of this Commission by stating that the present matter falls under the jurisdiction of Civil Court as complainant has breached the terms and conditions of the agreement. It is pleaded that the OP had obtained all the requisite permissions/licenses to perform its part of agreement and delay if any was due to administrative exigencies. Denying any deficiency in service or unfair trade practice as well as all other allegations, the OP has prayed for dismissal of the complaint. 

3]       Parties led evidence in support of their contention.

4]       We have heard the learned counsel for the complainant and have gone through entire documents on record.

5]       From the submissions of the parties and the documentary evidence especially the Agreement to Sell dated 19.06.2019 placed on record as Annexure C-2, it is observed that OP had agreed to sell the subject Villa No.88V to the complainant for total sale consideration of Rs.56,00,000/-. It is also observed from the Agreement & Receipt (Annexure C-2) that out of the total sale consideration, OP had received a sum of Rs.48,00,000/- qua the villa in question from the complainant. Since the OP failed to execute the registered sale deed for subject Villa, OP offered two residential plots i.e. Plot No.3161 & 3162 situated in Sector 124, Global City (Amazon City-2) Sunny Enclave, Tehsil Kharar, District Mohali, to the complainant for total consideration price of Rs.9,73,000/- each plot i.e. Rs.19,46,000/- for both plots and promised to refund the balance amount of Rs.28,54,000/-. It is relevant to mention here that OPs have not only failed to deliver the possession of the plots in question to the complainant despite receipt of the substantial amount but also failed to refund the deposited amount to the complainant despite his request which itself amounts to deficiency in service as also unfair trade practice on the part of OP.

6]       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”.

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

8]       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 complainant the deposited amount of Rs.48,00,000/- along with interest @10% per annum from the date of its deposit i.e. 19.06.2019, as mentioned in the agreement & receipt (Annexure C-2), till the date of its actual payment to the complainant.

        The above said order shall be complied with by the OP within a period of 45 days from the date of receipt of certified copy of this order.

9]       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

02.08.2024                                                               

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

Sd/-

 (B.M.SHARMA)

MEMBER

as