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

                                  Consumer Complaint No.235 of 2015

                                 Date of institution:          20.05.2015

                                              Date of Decision:            07.06.2016

Dr. Manjit Kaur Sharma daughter of Gurbax Singh, resident of 305-1A, Orchid Cooperative Housing Society, Patlipura Nagar, Oshiwara, Jogeshwari (W), Mumbai.

                                     ……..Complainant

                                        Versus

M/s. Bajwa Developers Limited, Regd. Office, SCO 17-18, Sunny Enclave,  Desu Majra, Kharar, Mohali, Punjab  through Shri J.S. Bajwa, Managing Director.

                                                                ………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri A.S. Walia, counsel for the complainant.

Shri Kulwinder Singh, counsel for the OP.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:

(a)    refund her Rs.3,25,000/- alongwith interest @ 18% per annum from the date of deposit till realisation.

(b)    pay her compensation of Rs.1,00,000/- on account of damages for deficient services.

(c)    pay her compensation of Rs.1,00,000/- for mental torture, harassment, agony and pain.

(d)    pay her Rs.50,000/- as costs of litigation.

                The case of the complainant is that her mother Mrs. Harinder Kaur booked 1 BHK flat No. (BR No.1748) 1848 in village F21, Mohali, Sector 74-A, 117 measuring 450 sq. ft. in the project being developed by the OP. The flat was booked by the mother of the complainant for the use of the complainant.  An agreement dated 30.12.2011 was entered into between the mother of the complainant and the OP.  After the death of mother of the complainant, the flat was transferred in the name of the complainant and a new agreement dated 22.05.2012 was executed endorsing the transfer from previous agreement. The total sale consideration of the apartment was Rs.13,00,050/-. The mother of the complainant had paid an amount of Rs.3,25,000/- to the OP vide two cheques dated 06.12.2011 for Rs.1,00,000/- and cheque dated 21.12.2011 for Rs.2,25,000/-. The OP was to acquire the land and construct the flat as per the agreement but after taking Rs.3,25,000/- from the complainant the OP did nothing to build the promised flat and failed to start the project.  The complainant in November, 2014 visited the OP and asked about status of the flat and was shocked to know that the project has not been started. The complainant requested the OP to refund the money to which the OP refused. Thus, as per the complainant, failure of the OP to develop the flat and refund of the amount is an act of deficiency in service and unfair trade practice on its part. Hence, the complainant has filed the present complaint. 

 2.            Upon notice, the OP appeared and filed reply in which it took preliminary objections that it has already filed suit for declaration regarding the agreement to sell before the civil courts, hence the present complaint deserves to be dismissed. The complainant is not a consumer as no plot was allotted to her till date.  The complainant is stopped by her own act and conduct and is not competent to file the present complaint.  The complainant has failed to pay the installments as per the agreement. There is no consumer-service provider relationship between the complainant and the OP.  On merits, the OP has denied the averments of the complainant and sought dismissal of the complaint.

3.             To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-4.

4.             Evidence of the OP consists of affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1 and copy of order of Civil Judge (Sr. Division) Mohali Mark-A.

5.             We have heard learned counsel for the parties and have also gone through written arguments filed by them.

6.             It has been alleged in the complaint that the complainant had booked one 1 BHK flat with the OP in the year 2012 and executed agreement to sell dated 22.05.2012.  As per the buyers agreement Ex.C-1  1BHK 1848, in village F21, Mohali Sector 74-A, 117  measuring 450 sq. ft. with the total consideration of Rs.13,00,050/-  was allotted to the complainant .  The complainant has paid a total sum of Rs.3,25,000/- upto 21.12.2011 as per receipts mentioned on the overleaf of Ex.C-1. As per agreement remaining final installment of the sale consideration was to be made on 30.06.2013 and thereafter the OP was to handover the possession of the flat in question. However, since OP was not having necessary sanctions and approvals in its favour, could not show the development of the site till 30.06.2013. This act of the OP amounts to indulging into unfair trade practice as the complainant has been deprived of the use and benefit of her deposited amount and non delivery of possession by the OP within the stipulated agreed time.

7.             The disputed question remains to be determined is whether the OP can retain the deposited amount due to non availability of sanctions and approvals in its favour by the competent authority.  No doubt it is not mentioned in the agreement Ex. C-1 as to on which date the possession of the flat was to be delivered, however, the OP was to obtain the necessary permission from the concerned authorities before development of the project, allotment of the flats to the consumers and collecting the money from them. Undisputedly the OP was not having proper sanctions and approvals in its favour on the date when the agreement Ex.C-1 was signed between the parties.      It is well settled law as has been held by the Hon’ble National Commission  in Kamal Sood Vs. DLF Universal Ltd., 2007 (2) CLT 440  that a builder/developer collecting money from the consumers without having proper and necessary sanctions in its favour from the competent authorities has indulged into unfair trade practice. The facts of the present complaint are squarely covered with the decision of the Hon’ble National Commission.  

8.             Therefore, the OP has indulged into unfair trade practice by collecting money from the complainant without having proper sanctions in its favour and retaining the same till date despite having received the request for refund from the complainant is an act of unfair trade practice having been indulged by the OP which is writ large on its part and has been duly proved on record by the complainant. The act of the OP, therefore, in withholding the amount of Rs.3,25,000/- has certainly caused financial loss and mental agony to the complainant.  While raising his pleas, the counsel for the complainant has relied upon decision of Hon’ble State Consumer Disputes Redressal Commission Punjab in First Appeal No.1097 of 2015 titled as M/s. Bajwa Developers Ltd. Vs. Pardeep Verma decided on 08.02.2016. The facts of the present complaint squarely covered by the above decision so relied upon by the counsel for the complainant. The counsel for the OP has not brought any contrary law/order on this point.

9.             Therefore, the complaint deserves to be allowed by issuing appropriate directions to the OP to refund the deposited amount alongwith interest @ 18% per annum from the dates of deposit till the payment is made. For grant of interest on the deposited amount as well as costs of litigation and compensation,  we rely upon the latest decision of the Hon’ble National Commission rendered in Ms. Krishna Malhotra Vs. Bajwa Developers Ltd., in Revision Petition No.2403 of 2015 decided on 06.04.2016.

10.           The complaint, therefore, is allowed with the following directions to the OP:

(a)    to refund to the complainant the total deposited amount of Rs.3,25,000/- (Rs. Three lacs twenty five thousand only) with interest thereon @ 18% per annum from the respective dates of deposit till actual payment.

(b)    to pay to the complainant  lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

June 07, 2016.    

                          (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

               Member