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

                                  Consumer Complaint No.436 of 2015

                                 Date of institution:          28.08.2015

                                              Date of Decision:            27.05.2016

Jagdish Singh Johal son of Gurmeet Singh, resident of 1611, Sector 38-B, Chandigarh.

                                     ……..Complainant

                                        Versus

M/s. Bajwas Developers Limited, Regd. Office Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali through its Managing Director/Authorised representative.

                                                                ………. 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 Sandeep Bhardwaj, counsel for the complainants.

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 him Rs.14,66,000/- alongwith interest @ 9% from the date of deposit till realisation.

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

(c)    pay them Rs.5,000/- as costs of litigation.

                The case of the complainant is that he approached the OP for purchase of a plot for residential house. The representative of the OP told the complainant to purchase the plot situated in Sunny Enclave, E10, Sector 123, Jandpur.  The complainant visited the site and found that it was only a large chunk of land, however, the representative of the OP informed him that the work was about to commence soon and possession would be handed over by December, 2012.  Accordingly the complainant agreed to purchase a plot and paid an amount of Rs.4,90,000/- on 23.02.2012 which included booking amount of Rs.50,000/- paid by the complainant on 17.02.2012. Agreement dated 23.02.2012 was also executed between the parties. Plot No.45H measuring 105 sq. yards situated in Sunny Enclave, E10, Sector 123, Sunny Enclave-2, Jandpur was allotted to the complainant. The total cost of the plot was Rs.19,52,000/-. The OP informed that it is in possession of all the necessary permission and approval of the land.  Till 01.09.2012 the complainant had paid total amount of Rs.14,66,000/-. The OP kept on extending the date of registration of the plot.  The complainant visited the site many times but found no work at the site.  The complainant was not given any positive reply about the development at the site. The complainant came to know from the information received under RTI by one Jaspal Singh that there were no permissions and approvals in the name of the OP at the time of executing the agreement and receiving payment from the complainant.  On this the complainant approached the OP and requested for refund of the amount. The OP assured that the amount would be refunded soon. However, the complainant received letter dated 29.02.2015 from the complainant asking him to deposit the installment with 18% interest. On approaching, the OP informed the complainant that the letter has been issued in routine and advised him to ignore it. However, again letter dated 11.07.2015 was received by the complainant on 21.07.2015 to deposit the amount or the plot would be cancelled.   Further, as per the complainant the OP is governed under the provision of PAPRA Act and the same has been violated by the OP as it has allured the complainant to purchase the plot without getting necessary approvals and sanctions in its favour from the competent authorities. The complainant approached the OP for refund of the amount but till date no refund has been made to him. 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 plot allotted to the complainant was cancelled due to non payment against the intimation sent to the complainant vide letter dated 29.02.2015 and 11.07.2015. The complainant had booked the plot with the OP with complete knowledge that the approvals are yet to be taken and with great efforts the OP got the approval on 26.04.2013. On the request of the complainant the agreement date was extended number of times till 30.06.2012. The complainant is stopped by his own act and conduct and is not competent to file the present complaint.  As per Clause 3 of the agreement the amount is liable to be forfeited in case the purchaser failed to deposit the agreed amount within 15 days from due date. 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-5.

4.             Evidence of the OP consists of affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.

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 plot with the OP in the year 2012 and executed agreement to sell dated 23.02.2012.  As per the buyers agreement Ex.C-1 plot No.45-H measuring 105 sq. yard @ Rs.18,600/- with the total consideration of Rs.19,53,000/-  situated in E-10 S 123, Jandpur.  The complainant has paid a total sum of Rs.14,66,000/- from 17.02.2012 to 01.09.2012 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 17.08.2012 and thereafter the OP was to handover the possession of the plot in question. However, since OP was not having necessary sanctions and approvals in its favour, could not show the development of the site till 17.08.2012 and, therefore, has given extensions in making payment of the remaining final installments 11.07.2015.  This act of the OP is an act of taking benefit of its own wrong and that amounts to indulging into unfair trade practice as the complainant has been deprived of the use and benefit of his 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 in the event when it itself has given extension of time in deposit of the installments 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 plot 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 plots 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.  On the day of signing of buyers agreement Ex.C-1, the OP was not even the owner of land in question for which it entered into an agreement to sell with the complainant. The third line of the buyers agreement state that the OP have booked the said land from someone and is willing and ready to sell the same to the complainants. When a person who is not holding a good title in his own favour, he is prohibited under law to pass on the same to another person, being the purchaser of the same. 

8.             Therefore, the OP has indulged into unfair trade practice by collecting money from the complainants without having proper sanctions in its favour and retaining the same till date despite having received the request for refund from the complainants 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 complainants. The act of the OP, therefore, in withholding the amount of Rs.14,66,000/- has certainly caused financial loss and mental agony to the complainants.  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 Develoipers 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.14,66,000/- (Rs. Fourteen lacs sixty six 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.                           

May 27, 2016.     

                          (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

               Member