DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.175 of 2016
Date of institution: 22.03.2016 Date of decision : 18.01.2017
Bhupinder Kumar son of Late Om Parkash, resident of House No.194, Phase-II, Mohali.
……..Complainant
Versus
M/s. Bajwa Developers Limited through its Managing Director Shri Jarnail Singh Bajwa, Office at Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali.
………. Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President Mrs. R.K. Aulakh, Member.
Present: Shri Abhishek Bhateja, counsel for the complainant.
Shri Kulwinder Singh, counsel for the OP.
ORDER
By Ajit Pal Singh Rajput, President
Complainant, Bhupinder Kumar has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The OP had floated a scheme for developing a housing project in Sector 74-A, Mohali under the name and style of Sunny Apartments. The complainant submitted application for booking of 1 BHK BR No.(122) Apartment having Apartment No.1122 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 450 sq. ft. at a sale consideration of Rs.12,50,100/- which was rounded to Rs.12,52,000/-. The complainant had purchased this apartment initially by paying an amount of Rs.2,00,000/- on 13.04.2011 vide receipt No.PB 222/88 was issued by the OP. Another payment of Rs.1,12,500/- in cash was made by the complainant to the OP vide receipt No.PB 222/89 dated 01.05.2011. An agreement to sell was executed between the parties on 04.05.2011. Entry of receipt of aforesaid amounts was mentioned in the buyers agreement. The construction of the residential unit was to be completed within a period of 18 months i.e. by 04.11.2012. The remaining amount was to be paid to the OP in 5 installments @ Rs.1,87,800/- by 09.11.2012. Accordingly, the complainant made payment of Rs.1,50,000/- to the OP through cheque dated 04.07.2012. Thus, the complainant has made total payment of Rs.4,62,500/- to the OP. The complainant had not made payment of rest of the installments as there was no construction, development made by the OP. Even the OP also never raised any demand of money. The complainant was and is still ready to make the payments provided the flat is handed over to him by the OP. The complainant made number of calls and also visited the office of the OP but could not get a satisfactory response. The complainant also came to know that certain permissions were pending which are necessary for approval of the project and had not been taken by the OP. Feeling aggrieved the complainant got issued a legal notice dated 09.01.2016 but no reply was sent by the OP. The OP is using the funds of the complainant for other profitable business and earning profits which amounts to unfair trade practice. Hence this complaint for giving directions to the OP to refund the deposited amount of Rs.4,62,500/- alongwith interest @ 18% per annum; compensation of Rs.5,00,000/- for harassment and stress and Rs.33,000/- as litigation expenses.
3. The complaint is contested by the OP by filing reply, in which it had raised certain preliminary objections, inter alia, that the present complaint is not maintainable; this Forum has no jurisdiction to entertain and try the complaint; as the complainant has committed default in payment of installments, as per Clause 3 of the agreement the amount deposited by the complainant is liable to be forfeited. Approvals of the project are under process and it will take time for getting the approval and possession of the flat. The complainant had paid only Rs.4,62,500/- out of Rs.12,52,000/-. On merits, the OP has denied the averments of the complaint and prayed for dismissal of the complaint.
4. In order to prove the case, the complainant tendered in evidence affidavit Ex. CW-1/1; copies of agreement to sell Ex.C-1; receipt Ex.C-2; original photographs Ex.C-3 to C-12; legal notice Ex.C-13; original postal receipt Ex.C-14; information received under RTI Ex.C-15 and C-16. In rebuttal the OP tendered in evidence affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.
5. It has been argued by learned counsel for the complainants that 1 BHK BR Apartment No.1122 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 450 sq. ft. was allotted to the complainant at a sale consideration of Rs.12,50,100/- which was rounded to Rs.12,52,000/-. Learned counsel has argued that the complainant had paid a total sum of Rs.4,62,500/- to the OP as per the agreement to sell dated 04.05.2011. The construction of the apartment was to be completed within a period of 18 months i.e. by 04.11.2012. As there was no construction, development made by the OP, the complainant visited the OP number f times and ultimately got issued legal notice dated 09.01.2016 for refund of the deposited amount but no reply was sent by the OP.
6. On the other hand, the learned counsel for the OP has contended that the complainant has committed default in making payment of installments as per agreement to sell dated 04.05.2011. The complainant himself had agreed to pay the installments within the stipulated period as per the agreement to sell. Learned counsel for the OP has relied upon the decision of Hon’ble State Consumer Disputes Redressal Commission Punjab in case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh in First Appeal No.329 of 2015 decided on 01.08.2016, in which the Hon’ble State Commission while relying upon the decision of Hon’ble National Commission in 2015(1) CPJ 514 (Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd.) has held in Para No.9 that as the complainants were defaulter in not making the payment of installments; to which they had agreed, they were not entitled to any interest.
7. We have gone through the pleadings, evidence and written arguments of the parties and heard the oral submissions, addressed by the learned counsel for the parties. We are of the opinion that in the present case also the complainant had paid Rs.4,62,500/- to the OP but did not pay the remaining installments as it is established from the material placed on record by the complainant. Thus the complainants cannot be held entitled to any interest on the deposited amount.
8. In view of our aforestated discussion and the judgment citied by the OP of Hon’ble State Commission, Punjab in case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh (Supra), we are of the view that the present case is also covered by the aforestated judgment.
9. Accordingly, we direct the OP to refund the deposited amount of Rs.4,62,500/- (Rs. Four Lakhs Sixty Two Thousand Five Hundred only) to the complainant. We also find that complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony caused to the complainants due the negligent act of the OP and litigation cost of Rs.5,000/- (Rs. Five thousand only). The present complaint stands partly allowed.
The OP is further directed to comply with the order of this Forum within 45 days from the date of receipt of this order, otherwise the OP shall be liable to pay 8% interest per annum on the total cost awarded.
The arguments on the complaint were heard on 12.01.2017 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.
Pronounced
Dated: 18.01.2017
(A.P.S.Rajput)
President
(Mrs. R.K. Aulakh)
Member
