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

                                  Consumer Complaint No.178 of 2016

                                                Date of institution:  29.03.2016                                         Date of decision   :  06.02.2017

Kawaljeet Singh son of Late Balbir Singh resident of Kothi No.486, Phase-1, SAS Nagar, Mohali.

                                  ……..Complainant

                                        Versus

1.     M/s. Bajwa Developers Limited, Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali (Punjab)  through its Managing Director Shri Jarnail Singh Bajwa son of Shri Bishan Singh.

2.     Shri Jarnail Singh Bajwa son of Shri Bishan Singh, Managing Director, M/s. Bajwa Developers Limited, Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali (Punjab).

                                                      ………. Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                          Shri Amrinder Singh Sidhu, Member.

Present:    Shri G.S. Thind, counsel for the complainant.

                Shri Kulwinder Singh, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant, Kawaljeet Singh has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The OP had launched 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  BHK BR No.1419F measuring 450 sq. ft. at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali at a total sale consideration of Rs.12,50,000/- which was rounded off to Rs.12,52,000/-. The complainant had paid an amount of Rs.5,00,300/- to the OPs and balance sale consideration was to be paid in installments by 31.12.2015.  An agreement to sell was executed between the parties on 25.11.2014.  This flat was got transferred by the complainant in his name from Ramanjit Singh and Maninder Kaur on 25.11.2014 after paying the transfer fee.  At that time the OPs had assured that sale deed would be executed after completion of construction.  The complainant had not made payment of rest of the installments as there was no construction, development made by the OPs. The complainant made number of calls and also visited the office of the OPs but could not get a satisfactory response. Feeling aggrieved the complainant got issued a legal notice dated 08.01.2016 but no reply was sent by the OPs.  The OPs are using the funds of the complainant for earning profits which amounts to unfair trade practice.  Hence this complaint for giving directions to the OP to refund the deposited amount of Rs.5,00,300/- alongwith interest @ 18% per annum; compensation of Rs.2,00,000/- for harassment and mental tension and Rs.25,000/- as litigation expenses.

3.             The complaint is contested by the OPs by filing reply, in which they have 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.5,00,300/- and as per agreement the amount of Rs.3,13,000/- deposited by the complainant is liable to be forfeited in view of the agreement.  On merits, the OPs 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; legal notice Ex.C-3 and postal receipt Ex.C-4. 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 complainant that 1 BHK BR Apartment No.1419F 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.5,00,300/- to the OPs as per the agreement to sell  dated 25.11.2014. As there was no construction, development made by the OPs, the complainant visited the OPs number of times and ultimately got issued legal notice dated 08.01.2016 for refund of the deposited amount but no reply was sent by the OPs. 

6.             On the other hand, the learned counsel for the OPs has contended that the complainant has committed default in making payment of installments as per agreement to sell dated 25.11.2014.  The complainant himself had agreed to pay the installments within the stipulated period as per the agreement to sell.  Learned counsel for the OPs 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.5,00,300/- to the OPs but did not pay the remaining installments as it is established from the material placed on record by the complainant. Thus the complainant cannot be held entitled to any interest on the deposited amount.

8.             In view of our aforestated discussion and the judgment citied by the OPs 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 OPs to refund the deposited amount of Rs.5,00,300/- (Rs. Five Lakhs Three 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 complainant due the negligent act of the OPs and litigation cost of Rs.5,000/- (Rs. Five thousand only).   The present complaint stands partly allowed.            

                The OPs are further directed to comply with the order of this Forum within 45 days from the date of receipt of this order, otherwise the OPs shall be liable to pay 8% interest per annum on the total cost awarded.

                The arguments on the complaint were heard on 02.02.2017 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: 06.02.2017    

                                         (A.P.S.Rajput)           

President

(Amrinder Singh Sidhu)

Member