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

                                  Consumer Complaint No.134 of 2015

                                 Date of institution:          01.04.2015

                                            Date of Decision:            31.12.2015

Jiwan Krishan Dhir son of Mukandi Lal, resident of House No.137, Gul Mohar Complex, Kharar.

                                     ……..Complainant

                                        Versus

M/s. Bajwa Developers Ltd. through its Managing Director Shri J.S. Bajwa, Regd. Office, Sunny Enclave, Desu Majra, Tehsil Kharar, District SAS Nagar, Mohali.

SECOND ADDRESS:

M/s. Bajwa Developers Ltd. through its Managing Director Shri J.S. Bajwa, SCO No.17-18, Sunny Enclave, Desu Majra, Tehsil Kharar, District SAS Nagar, Mohali.

                                                                ………. 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 G.S. Arshi, counsel for the complainant.

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)    to pay him Rs.8,46,757/- as interest on the amount of Rs.24,35,000/- illegally retained by it with further interest @ 12% per annum till payment.

(b)    refund him Rs.10,000/- charged as transfer fee with interest @ 18% from 07.12.2012 till actual payment.

(c)    pay him Rs.2,00,000/- as compensation for mental harassment and agony.,

        (d)    pay him Rs.20,000/- as litigation expenses.

                The complainant entered into an agreement to purchase the plot No.321 of 200 sq. yards in Sector 123, Mohali from the OP on 07.12.2012. The total sale consideration of the plot was Rs.36,40,000/-. The complainant paid Rs.24,35,000/- to the OP towards  sale consideration of the plot and had also paid Rs.10,000/- as transfer fee on 07.12.2012 vide receipt Ex.C-2. At that time the OP did not have any land for development of the project and transfer of ownership by way of conveyance deed. The complainant had also come to know that the OP did not have even the necessary approvals from the Govt. and necessary permissions and sanctions from the statutory authorities. Under these circumstances, the complainant sought refund of the deposited amount from the OP vide letter dated 27.11.2013.  Accordingly, the OP refunded the amount but without any interest on it.  The complainant is entitled to interest on the deposited amount as the OP has utilized the money of the complainant. The OP has also not refunded the transfer fee of Rs.10,000/- which was paid by him on 07.12.2012.  The complainant requested the OP vide notice dated 22.01.2015 to pay the interest and Rs.10,000/- towards transfer fee but till date the OP has neither made the payment of the demanded amount nor even replied to the notice.  Thus, with these allegations the complainant has filed the present complaint.

 2.             The OP in the preliminary objections of the written statement has pleaded that this Forum does not have the jurisdiction to try the complaint as the transaction between the complainant and the OP is purely sale agreement of plot for total sale consideration of Rs.36,40,000/-. The complainant has committed default in making payment of the installments and as per the clause No.3 of the agreement the amount deposited by the complainant was liable to be forfeited. The complainant showed his inability to deposit the further installments and sought refund. Although there is forfeiture clause in the agreement but keeping in view the old age of the complainant and showing goodwill gesture the OP agreed to refund the amount without interest which was happily agreed by the complainant with any protest. The complainant firstly sent the legal notice on 22.02.2015 whereas he has received the cheques from the OP on 11.10.2014 to 28.11.2014.  There is no ‘Consumer-Service Provider’ relationship between the complainant and the OP. The complainant is not a consumer as per provisions of the Consumer Protection Act, 1986.  The complainant is well aware that the approvals of the project are under process and it will take time for getting the approval and possession of the plot as this fact is duly mentioned in Para No.6 of the agreement.  The complaint is barred by limitation as the agreement was made on 07.12.2012. On merits, the OP has denied the averments made by 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-4.

4.             Evidence of the OP consists of affidavit of Jarnail Singh 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.             The agreement dated 07.12.2012 Ex.C-1 is admitted by the parties. In pursuance of the agreement the payment of Rs.24,35,000/- made by the complainant to the OP is accepted. As per the complainant’s own version, when he learnt that the OP did not have necessary approvals from the Govt. and permission and sanctions from the statutory authorities, he on his own volition sought refund of the deposited amount alongwith interest @ 10.85% per annum vide his written request dated 27.11.2013 Ex.C-3. The OP has conceded to his request and refunded the deposited amount in installments as is evident from the details of the refunded amount mentioned in Para No.5 of the complaint. The amount of Rs.10,000/- taken from the complainant towards transfer fee has also not been refunded to him. The grievance of the complainant is that he has received the principal amount but the OP has not paid the interest on the demanded amount and, therefore, withheld the amount of interest of Rs.8,46,757/- and the act of the OP in withholding the interest amount is an act of deficiency in service and unfair trade practice.

7.             The OP took a categoric stand in its written version that there is no deficiency in service on its part as the complainant has received the refund of the deposited amount without protest being full and final payment. Thereafter there is no privity of contract subsists between the parties and the complainant ceases to be consumer. Further as per the OP the complainant has not paid the full amount and showed his inability to pay the balance amount. The amount has been refunded to him as goodwill gesture otherwise  the whole amount was to be forfeited due to default in payment of balance amount as per terms of the agreement duly signed by the parties. 

8.             The limited question for determination in the present complaint is whether the complainant is entitled to refund of the deposited amount alongwith interest or not. As per the complainant’s own case, since the OP did not have necessary sanctions and approvals in its favour, therefore, the complainant himself sought refund of the amount deposited by him. In this regard  he gave a written application dated 27.11.2013 Ex.C-3 to the OP. It is also an admitted case of the parties that the OP has refunded the entire deposited amount to the complainant which was duly accepted by him unconditionally without any protest. The OP has made the payment of the refund amount through cheques to the complainant in installments from 11.10.2014 to 28.11.2014. After receiving the said amount, the complainant has raised the issue of non payment of interest on the deposited amount in his legal notice dated 22.02.2015. Once the complainant has received the entire deposited amount unconditionally, under these circumstances the complainant ceases to be a consumer as per Consumer Protection Act, 1986. The privity of contract or relationship of consumer and service provider between the parties came to an end the moment complainant accepted the amount unconditionally. Therefore, the complainant does not remain to be a consumer and hence the complaint is not maintainable.  In this regard, we take the support from the decision of Hon’ble National Commission in Jagjit Singh vs. HUDA and another, 2013 (1) CLT 184 (NC).

9.             In view of above discussion, the complaint is dismissed being not maintainable. 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.                           

December 31, 2015.     

                         (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

              Member