DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.671 of 2015
Date of institution: 14.12.2015 Date of decision : 09.12.2016
Gurpreet Singh son of Iqbal Singh, resident of House No.641, Sector 16-D, Chandigarh.
……..Complainant
Versus
M/s. Bajwa Developers Limited, Regd. Office Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali through its Managing Director/Authorised representative.
………. Opposite Party
Complaint under Sections 12 of
the Consumer Protection Act.
Quorum
Shri Amrinder Singh Sidhu, Presiding Member.
Mrs. R.K. Aulakh, Member.
Present: Shri Sandeep Bhardwaj, counsel for the complainant.
Shri Kulwinder Singh, counsel for the OP.
ORDER
By Amrinder Singh Sidhu, Presiding Member.
The complainant has filed the present complaint against the Opposite Party (for short ‘the OP’) pleading that he in order to get a residential house for his own use approached the OP wherein the sales representative of the OP told the complainant to purchase the plot situated in Sunny Enclave, Sector 123, Jandpur and told him that possession will be handed over by December, 2012. The complainant was shown plot No.595 for sale as the plot was earlier sold to one Karan Rampal who was not willing to retain the plot. The complainant agreed to it. The layout and site plan shown to him. Karan Rampal has already paid an amount of Rs.7,32,634/- to the OP. The total cost of the plot was Rs.29,30,573/- (Rs.13900/- @ 210.83 sq. yards). The copy of the agreement executed in between Karan Rampal and the OP on 17.08.2010 is placed on record as Annexure C-2. The OP executed an agreement with the complainant on 17.08.2010 and the OP received the entire consideration amount before the due dates and there was no amount payable to the OP over and above the amount agreed to be paid as per the agreement. The OP issued NOC/NDC pertaining to the plot in favour of the complainant mentioning therein that there is no amount outstanding towards the plot. The OP further issued letter mentioning therein that the full and final payment has been received from the complainant as per terms and conditions of the agreement. It has been further mentioned that in case any variation in the size of the plot is found at the time of demarcation/possession, the complainant is liable to pay the cost at the existing price of the additional area. No other amount was mentioned to be payable by the complainant. The OP got signatures of the complainant on number of documents on the pretext of requirement of the OP and assured of sending the same through post but no document has been sent to the complainant till date. Layout of the site plan was changed from Plot No.595 and new plot No.11 got issued with great difficulty and for the same, a note was given for allotting of plot No.11 by the OP on 28.02.2012 on NDC dated 18.10.2010. The area of the new plot was only 200 sq. yards and in the site plan approved by the Chief Town Planner, Chandigarh vide letter No.23453 (TP) (PB) March 23, 2010 the road in side and front was 60 feet. Since the OP was not turning up for registration and demarcation of the plot so the complainant started approaching the OP. The OP kept on making one excuse or the other to keep lingering the matter. Then the OP informed the complainant that an amount of Rs.1,72,000/- was required to be deposited towards the stamp paper for registration and an amount of Rs.3,48,000/- towards the EDC. It was a shocking moment for the complainant as he has already made full and final payment and obtained NDC from the OP. The OP flatly refused to execute the registration of plot in the absence of paying the amount towards the stamp paper and EDC. The OP was in dominating position and the complainant was aggrieved. In order to claim ownership, the complainant paid the amount under protest and on the assurance of the OP to provide the document proving the deposit of EDC amount towards the plot of the complainant with the Govt. authorities. The receipts dated 02.09.2013 proving the payment of EDC and registry fee is placed on record as Annexure C-6 and C-7. The OP being in practice of extracting amount issued another NDC with some modification and in contravention to the receiving of EDC itself mentioned in the NDC. The NDC dated 02.09.2013 is placed on record as Annexure C-8. The OP executed the registration deed but the OP did not allow the complainant to read contents of registration deed on the pretext of over crowd and lack of time. After receiving copy of registry, the complainant came to know that the side road and the road facing the plot has been mentioned as 35 feet whereas he has been shown the road to be 60 feet. Even in the layout plan approved by Chief Town Planner, Punjab, Chandigarh, the road in the side of the plot and road facing the plot is 60 feet wide. The stamp charges has also been mentioned as Rs.1,44,000/- whereas the complainant has paid an amount of Rs.1,72,000/- towards the registration of the plot. The complainant approached the OP but no positive response was given to him. The complainant requested to refund the excess amount received alongwith proof of deposit of EDC but the OP started avoiding the complainant. The complainant requested the OP to demarcate the plot as he has to raise construction on the plot but the OP did not pay any heed to the requests of the complainant. The OP finally told the complainant to submit the demarcation form alongwith the documents i.e. copy of NDC, proof of payment of EDC, copy of registry, Rs.25 stamp paper and two photographs. On 02.09.2015, the complainant approached the OP alongwith the documents but the OP has already made up its mind to extract more money from him and the OP told him to pay an amount of Rs.62,500/- in which Rs.12,000/- has been shown towards EDC received in less by the OP and Rs.50,000/- towards road access. The demand at the bottom of document is sufficient to prove the unfair trade practice adopted by the OP. The OP informed him that they are in possession of all the necessary permissions and approvals of the land containing the plot allotted to him whereas the complainant came to know through information received by one Jaspal Singh under Right to Information Act, 2005 and came to know that there was no permissions and approvals in the name of the OP at the time of executing the agreement and receiving the consideration amount. The office of Admn. (Licensing) has informed vide information dated 06.08.2014 that the Letter of Intent dated 19.05.2014 has been issued for setting up the residential colony in the land of village Jandpur, Hasanpur and Manna total measuring 138.376 acres. It has further been informed that the case for issuance of license is pending in the office and the lay out plan has not been approved by the competent officer. So the OP violated the conditions set up by the authorities as such indulged in deficiency in service and unfair trade practice. The OP allotted the plot without getting the necessary permissions and approvals as required in accordance of the provisions of the Punjab Apartment and Property Regulations Act. The complainant suffered not only mental and physical harassment but also financial loss for which the complainant is liable to get compensated.
Lastly the complainant prayed that the complaint may kindly be allowed and the OP be directed:
i) to demarcate the plot without raising any demand as already NDC has been issued to the complainant.
ii) to refund an amount of Rs.3,48,000/- alongwith interest from the date of deposit till realisation, received towards EDC as the same was received after issuance of NDC and also without proving the demand and deposit with the Govt. authorities.
iii) to refund an amount of Rs.28,000/- received in excess towards the registration of the plot with interest from the date of deposit till actual refund.
iv) to refund the amount for difference of plot area i.e. 10.83 sq. yards on existing rate.
v) to pay compensation to the tune of Rs.5.00 lakhs on account of mental agony, financial loss and physical harassment.
vi) to pay cost of litigation to the tune of Rs.50,000/-.
vii) any other relief as this Forum deems fit in the facts and circumstances of the present complaint.
2. After the service of notice upon the OP, the OP appeared through counsel and filed written statement taking preliminary objections denying all the averments made by the complainant unless specifically admitted by the answering OP; this Forum has no pecuniary jurisdiction to try the present complaint as sale agreement of plot is worth Rs.29,30,537/- and the District Forum has pecuniary jurisdiction of dispute upto Rs.20.00 lakhs only; the complainant has approached this Forum with unclean hands as he has already got his registry/sale deed in his favour vide sale deed dated 03.09.2013; no cause of action has arisen or pleaded in the complaint; he is not consumer; complaint is frivolous, vexatious and liable to be dismissed with costs under section 26 of the Consumer Protection Act, 1986. On merits, the OP denied all the allegations made against it and lastly prayed for dismissal of the complaint with costs.
3. Evidence of the complainant consists of his affidavit Ex.CW-1/1; copies of site plan Ex.C-1; agreements dated 04.08.2010, 17.08.2010 and 16.10.2010 Ex.C-2 to C-4; No due certificate dated 28.02.2012 Ex.C-5; receipts dated 02.09.2013 Ex.C-6 and C-7; No due certificate dated 02.09.2013 Ex.C-8; registry dated 03.09.2013 Ex.C-9; demarcation form dated 02.09.2015 Ex.C-10/1 to C-10/4; RTI information dated 06.08.2014 and 11.08.2014 Ex.C-11 and C-12 and lay out plan Ex.C-13. To rebut the evidence of the complainant, the OP tendered in evidence affidavit of Jarnail Singh Bajwa its MD Ex.OP-1/1.
4. We have gone through the file including pleadings, submissions and evidence led by both the parties and also through written arguments submitted by the parties and heard oral arguments. The preliminary objection taken by the OP that this Forum has no pecuniary jurisdiction to try the present complaint as sale agreement of plot is worth Rs.29,30,537/- and this Forum has pecuniary jurisdiction of subject matter of Rs.20.00 lakhs is without any substance as there is no dispute regarding sale of plot but dispute is regarding illegality committed in charging excess amount while providing service by the promoters and developers of land (the OP) and their indulgence in unfair trade practice, for which complainant has claimed amount much less than Rs.20.00 lacs. This Forum not only has pecuniary jurisdiction but also territorial jurisdiction as the OP has its office as well as cause of action has accrued to the complainant within territorial jurisdiction of this Forum. The complaint is within limitation as the cause of action aroused/accrued to the complainant on 02.09.2015 when the OP demanded an amount of Rs.62,500/- from the complainant vide
Ex.C-10/3 after issuing No Due Certificate and further the OP failed to demark the plot till the filing of the present complaint on 14.12.2015. So it can safely be concluded that complaint is filed within limitation as prescribed by the Consumer Protection Act, 1986 (amended upto date).
Further, counsel for the OP strongly argued during arguments that complainant is not a consumer by relying upon order of the Hon’ble National Commission (D.B.) in Harpal Arya Vs. Housing Board Haryana 2016 (1) CPR 398, 2016(2) CPJ 36 whereby the Hon’ble National Commission held that complainant is not consumer. Our view is that the facts of this order are not applicable to the present complaint because in the present complaint there is no ’Hire Purchase Tenancy Agreement’ between the complainant and the OP which was there between complainant and the OP in Harpal Arya case (supra). In the present complaint, complainant has purchased plot from the OP as the OP who are promoters and developers of land but the OP sold the plot to the complainant without having all necessary approvals and sanctions from all the competent authorities. Though the OP shown layout plan to the complainant which is Ex.C-1 yet the OP do not have all the necessary approvals and sanctions from all the competent authorities on the date of agreement to sale and on the date of receiving amount from the complainant which is per se proof of unfair trade practice on the part of the OP. The RTI proving that the OP did not have all necessary approvals and sanctions from all the competent authorities on the date of agreement and date of receiving consideration amount is Ex.C-11. Further the OP issued No Due Certificate pertaining to plot in favour of the complainant on the agreement dated 16.10.2010 which is Ex.C-4 and further a note was given for allotting of plot No.11 instead of plot No.595 by the OP on 28.02.2012 on NDC dated 18.10.2010 which is Ex.C-5. Further lingering the matter of registration of plot being in dominating position and receiving payment of Rs.1,72,000/- (Ex.C-10/3 ) for stamp charges instead of Rs.1,44,000/- (which is actual charges of stamp duty Ex.C-9) is also amounts to unfair trade practice on the part of the OP.
Further demand of receipt of Rs.3,48,000/- as EDC charges after issuing No Due Certificate also amounts to unfair trade practice. The OP failed to prove on file that he paid Rs.3,48,000/- as EDC towards plot of the complainant to the competent authority. However, he received this amount after issuance of No Due Certificate dated 28.02.2012 which is Ex. C-5. So once OP issued No Due Certificate then he is not entitled to receive any amount without justification of the same.
Further the OP did not get the plot demarcated before and at the time of sale is also deficiency in service. The OP is duty bound to demarcate the plot while he agreed to sale before sale or at the time of sale to enable the complainant to take possession by metes and bounds and be sure that he got full area for which he has paid the amount.
Therefore, in view of above said discussion, it is clear that the OP is not only deficient in providing service to the complainant but also indulged himself in unfair trade practice which caused mental agony, harassment to the complainant for which he is entitle to be compensated.
Hence, the OP is held not only deficient in providing service to complainant but also guilty of unfair trade practice and, therefore, the OP is directed:
- to demarcate the plot of the complainant without raising demand of any amount.
- to refund amount of Rs.3,48,000/- which the OP received towards EDC as the same was received after issuance of NOC.
- to refund Rs.28,000/- received in excess amount for stamp charges of registration fee.
- to refund the amount of difference of area of plot at the rate of sale deed, if any area is found lesser than 210 sq. yard after demarcation of plot.
- to pay compensation of Rs.20,000/- on account of mental agony and harassment.
- to pay Rs.10,000/- as costs of litigation.
The complaint is allowed. Compliance of this order be made within a period of 45 days of this order failing which the OP will be liable to pay to the complainant interest @ 8% per annum from the date of order till its actual realisation.
The arguments on the complaint were heard on 25.11.2016 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: 09.12.2016
(Amrinder Singh Sidhu)
Presiding Member
(Mrs. R.K. Aulakh)
Member
