Chandigarh

DF-II

CC/701/2020

Rohit Khanna - Complainant(s)

Versus

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

Adv. Raghav Sharma &

18 Sep 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

Rohit Khanna aged about 44 years son of late Sh.Y.L.Khanna, R/o H.No.1299, Sector 41-B, Chandigarh.

             …..Complainant

Versus

1]  M/s Bajwa Developers Ltd., having its office at SCO No.17-18, Sunny Enclave, Desu Majra, Tehsil Kharar, District SAS Nagar Mohali, Punjab-140301 through its Managing Director Sh.Jarnail Singh Bajwa.

2]  Sh.Jarnail Singh Bajwa son of  Sh.Bishan Singh Bajwa, Managing Director,  M/s Bajwa Developers Ltd., having its office at SCO No.17-18, Sunny Enclave, Desu Majra, Tehsil Kharar, District SAS Nagar Mohali, Punjab-140301.

Email:.

 ….. Opposite Parties

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA                 MEMBER

Present    :    Sh.Gurinder Singh Adv. proxy for Sh.Aman Sharma,     Counsel for the complainant

                Ms.Dhivya Jerath, Counsel for the OPs

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

1.      The complainant has filed the present complaint pleading that he booked  a plot measuring 150 sq. yards situated in New Friends Enclave, Sector 124 being laid out in Village Jandpur/Chando, Tehsil Kharar, District SAS Nagar for total sale consideration of Rs.23.25 lakhs vide agreement to sell dated 18.04.2012 by paying the booking amount of Rs.50000/- through cheque vide receipt dated 02.03.2012 (Annexure C-3) and Rs.5,31,250/- through cheque dated 19.04.2012 as earnest money at the time of execution of the agreement to sell.  20% of the amount was to be paid on getting the CLU by the OPs; 25% on or before 10.10.2012; 20% on or before 10.01.2013 and remaining 10% at the time of possession/registry. The possession was agreed to be delivered within one year from the execution of the date of agreement to sell.  The plot number was to be allotted after one month which was not held by the OPs. After a period of two and half years, the draw of plots was held in November,2014 and the plot No.175 was allotted in T-Block, Sunny Enclave, Sector 123,Tehsil Kharar, Distt. SAS Nagar, Mohali in undeveloped area which was about 2 kms away from the agreed site, to which the complainant raised the objection. After the rejection by the OPs to allot the plot at the agreed site, the complainant requested the Ops either to allot the plot at the agreed site or to refund the deposited amount.  Without the consent and knowledge of the complainant, the OPs changed the allotment of the plot from Sector 124, Mohali to Sector 123, Mohali and the complainant was issued allotment letter dated 09.11.2014 (Annexure C-6) mentioning therein that the plot No.175 in T-Block, Sector 123/124, Sunny Enclave, Kharar, District Mohali whereas the agreement to sell was with regard to the plot at Sector 124, Kharar, Mohali.  It has further been alleged that the complainant wrote letter as well as e-mails to the OPs clarification on CLU, payment of 2^nd installment and change of Sector but no reply was furnished by the OPs.  It has been alleged that the OPs have not obtained the approval for CLU and necessary permissions/approvals from the competent authorities in respect of the land in question.  The OPs have further alleged to have violated the provisions of the PAPRA and without having the requisite permissions/sanctions of the competent authorities, they have received the amount exceeding Rs.25000/-. Hence, this complaint has been preferred seeking refund of the deposited amount along with interest, compensation for mental agony and harassment, litigation expenses.
2.     After service of notice upon the OPs, they appeared before this Commission and filed their written version and took preliminary objections. On Merits, it has been admitted that out of the total sale consideration of Rs.23,25,000/-, the complainant paid Rs.5,81,250/- uptil 19.04.2012 and had deferred all the pending installments. It has further been stated that OPs have offered the plot measuring 150 sq. yards in T-Block, Sunny Enclave, Sector 123, Kharar Mohali which shows the bona fide on the part of the OPs. As per Clause 3 of the agreement, in case the buyer does not pay the installment within 15 days, the earnest money was to be forfeited and in clause 6, it was mentioned that in case the plot in question due to some technical or disapproval from authority is not available for possession then the buyer shall have right only to claim his earnest money and no compensation shall be awarded for the same. It has further been stated that OPs have obtained all the requisite permissions/licenses whatsoever required to perform its part of agreement and delay any has been solely due to administrative exigencies.  The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, the OPs prayed for dismissal of the complaint.
3.     Parties led evidence in support of their contentions.
4.     We have heard the ld.Counsel for the contesting parties and have gone through the documents on record including written submissions.
5.     The perusal of the documentary evidence on record and the submissions of the parties reveals that the OPs have offered the possession of the plot instead of the agreed plot without the consent and approval of the complainant vide allotment letter dated 09.11.2014 (Annexure C-6) that too after a lapse of two years from the date of execution of the agreement to sell dated 18.04.2012. Besides this, the OPs have violated the provisions of the Punjab Regional and Town Planning and Development Act, 1955 and the provisions of the Punjab New Capital (Periphery) Control Act, 1952 as they have not taken the requisites permissions/approvals from the concerned authorities before selling the plots. The OPs have also failed to lead any evidence to prove that they have got the requisite approvals and permissions from the competent authority before or at the time of booking the plot. In our view, the act of the OPs to collect the money before getting all the necessary approvals for the project and not handling over possession of the agreed plot in question within the promised period certainly proves deficiency in service and its indulgence in unfair trade practice.
6.      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.            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.”

8.      Keeping in view the overall facts and circumstances of the case, we are of the considered view that the act of the OPs not refunding the deposited amount with interest to the complainant on receipt of its demand certainly amounts to deficiency in service as well as indulgence into unfair trade practice.
9.     In the light of above observations, the present complaint deserves to succeed against the OPs.  Accordingly, the present complaint is partly allowed with following directions to the OPs to refund the deposited amount of Rs.5,81,250/- along with interest @ 9% p.a. from the dates of respective deposits till the date of its actual payment to the complainant.
10.       The above said order shall be complied with by the OPs jointly and severally within a period of 60 days from the date of receipt of copy of this order.
11.     The pending application(s) if any, stands disposed of accordingly
12.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

18.09.2023                                                                    

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

Sd/-

(B.M.SHARMA)

MEMBER