Chandigarh

DF-II

CC/344/2022

Anil Khurana - Complainant(s)

Versus

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

Adv. Atul Goyal

01 Mar 2024

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	344 of 2022
Date  of  Institution	:	18.04.2022
Date   of   Decision	:	01.03.2024

 

 

 

 

Anil Khurana son of Sh.Bishamber Lal, resident of #2115/1, Sector 45-C, Chandigarh

.... Complainant

VERSUS

1] M/s. Bajwa Developers Limited, registered office at SCO No.17-18, Sunny Enclave, Desumajra, Tehsil: Kharar, SAS Nagar, Mohali-140301.

2] Sh.Jarnail Singh Bajwa s/o Sh.Bishan Singh, Managing Director, M/s Bajwa Developers Limited, registered office at SCO No.17-18, Sunny Enclave, Desumajra, Tehsil: Kharar, SAS Nagar, Mohali-140301.  

.....Opposite Parties

 

BEFORE:      MR.AMRINDER SINGH SIDHU,  PRESIDENT

                            MR.B.M.SHARMA             MEMBER

 

Present:-       Sh.Atul Goyal,  Counsel for the complainant

                OPs exparte

 

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

 

1]       The complainant has filed the present complaint pleading that the complainant purchased a residential Plot bearing NO.765 measuring 213.87 sq.yards from OPs on 22.3.20211 for a total cost of Rs.34 lacs @rs.15900/- per sq. yards at village Jandpur, Tehsil Kharar, Mohali per Agreement to Sell dated 22.3.20211 (Ann.C-1).  The complainant paid an amount of Rs.17,40,000/- to the OPs by 22.3.2011.  However the OPs cancelled the said plot No.765 measuring 213.87 sq. yard and substituted it with a new plot bearing No.679 measuring 200 sq. yards on 24.5.2012 by making entry on the same agreement to sell dated 22.3.2011.  It is stated that since the area of the plot has been reduced, so the OPs also reduced the cost of the plot from Rs.34,00,000/- to Rs.31,80,000/- at the same rate i.e. @15900/- sq. yards.  Thereafter, the complainant made payment of Rs.5 lacs through cheque No.602303, Rs.2,50,000/- through cash on 25.11.2012 and Rs.3,60,000/- in cash on 16.6.2013 to the OPs in respect of said plot.  The complainant made the last payment of rs.3,30,000/- to the Ops on 16.6.2013 (Ann.C-2).  It is submitted that the complainant in total made payment of Rs.31,80,000/- to the OPs by June, 2013 against the Plot NO.679 measuring 200 sq. yards.  The extension of time for payment was recorded on the Agreement to Sell dated 22.3.2011.  However, the OPs in the year 2019 expressed their inability to deliver the said plot No.679 and execute registration deed and offered the complainant to take up new plot bearing No.20A at no extra cost.  It is pleaded that the having no option, the complainant accepted the said offer of the OPs and accepted new Plot No.20A and necessary entry was made by the OPs in this regard on the Agreement to Sell dated 22.3.2011.  But shocking the OPs while issuing No Due Certificate dated 18.2.2020 (Ann.C-3) to the complainant after taking the original agreement to sell dated 22.3.2011 showed the payment of Rs.16,00,000/- instead of Rs.31,809,000/- towards full & final payment in respect of Plot NO.20A.  The complainant raised the issue with the OPs with request to correct the amount in the NDC but they refused to do so.  The complainant also requested the OPs to deliver the possession of the Plot No.20A as well as to execute sale deed in that respect but the OPs flatly refused to execute the sale deed and deliver possession of the plot despite receipt of entire amount of Rs.31,80,000/-. Hence, this complaint has been filed by the complainant against the OPs seeking directions to the OPs to refund entire amount of Rs.31,80,000/- with interest as well as compensation for mental agony, harassment and litigation expenses.

 

2]       The Opposite Parties No.1 & 2 did not appear despite service of notice, hence they were proceeded against exparte vide order dated 15.11.2022.

 

3]       Complainant led evidence in support of his contentions.

4]       We have heard the ld.Counsel for the complainant and have gone through the documents on record including written submissions.

5]       From the submissions of the complainant and the documentary evidence especially the Agreement to Sell dated 22.03.2011 placed on record as Annexure C-1, it is observed that OP No.1 & 2 company had agreed to sell the subject plot i.e. Plot No.765 measuring 213.87, which was later changed to Plot No.679 measuring 200 sq. yards and finally changed to Plot No.20A at the rate of Rs.15,900/-. It is also observed from the Agreement to Sell dated 22.03.2011 (Ann.C-1 ) as well as Receipt dated 16.6.2013 (Ann.C-2) that the complainant had paid the entire sale consideration of Rs.31,80,000/- of the plot in question to the OPs No.1 & 2. It is relevant to mention here that OP No.1 & 2 neither delivered the possession of the plot to the complainant despite receipt of complete amount nor refund the amount so paid to the complainant despite repeated requests, which clearly amounts to deficiency in service as also unfair trade practice on the part of OP No.1 & 2.

6]       Moreover, the OPs No.1 & 2 did not appear to contest the case and preferred to proceed against ex-parte, which shows that they have nothing to say in their defence against the allegations made by the complainant. Therefore, the assertions of the complainant qua OPs No.1 & 2 have gone unrebutted & un-controverted.

7]       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”.

 

8]       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 No.1 & 2 who failed to deliver the possession of the subject plot within a 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 he is entitled to seek the refund of the amount paid along with interest.

 

9]       In the light of above observations, the present complaint deserves to succeed against the OP No.1 & 2.  Accordingly, the present complaint is partly allowed against OP No.1 & 2.  The OPs No.1 & 2 are directed to refund to the complainant the entire paid amount of Rs.31,80,000/- along with interest @10% per annum from the respective dates of its deposit, as mentioned in the agreement & receipt (Ann.C-1 & C-2 Pgs.12 to 20) till the date of its actual payment to the complainant.

         The above said order shall be complied with by the OPs No.1 & 2 within a period of 90 days from the date of receipt of copy of this order.

 

10]      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

01.03.2024                                                                     Sd/-

 

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER