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

                                  Consumer Complaint No.682 of 2015

                                                Date of institution:  22.12.2015                                         Date of decision   :  12.09.2016

Keshav Kumar son of Ramesh Kumar, resident of House No.6B, Good Earth Colony, Patiala.

                                  ……..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 Sections 12 to 14

of the Consumer Protection Act

Quorum

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

Present:    Shri Abhishek Bhateja, counsel for the complainant.

                Shri Kulwinder Singh, counsel for the OP.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant, Keshav Kumar son of Ramesh Kumar, resident of House No.6B, Good Earth Colony, Patiala, has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Sections 12 to 14 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 2 BHK BR No.(897) Apartment  having Apartment No.2497 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 900 sq. ft. at a sale consideration of Rs.24,00,300/- which was rounded to Rs.24,00,000/-. The complainant had purchased this apartment initially by paying  an amount of Rs.1,85,000/- through cheque dated 21.04.2011 receipt No.PB 240/78 was issued by the OP. Another payment of Rs.1,15,000/- in cash was made by the complainant  to the OP vide receipt No.PB 240/79. Again a sum of Rs.3,00,000/- was paid by the complainant to the OP vide receipt No. PB 240/81.  Thus, the complainant made a total payment of Rs.6,00,000/- to the OP.  A buyers agreement was executed between the parties on 25.05.2011.  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 25.11.2012. The remaining amount was to be paid to the OP in 5 installments @ Rs.3,60,000/- by 07.04.2013.  Accordingly, the complainant made payment of Rs.1,15,000/- to the OP through cash on 28.06.2012 entry of which was also made in the buyers agreement. The complainant had not made payment of rest of the installments as there was no construction, development made by the OPs. 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. Till date the complainant has made a total payment of Rs.7,15,000/- to 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. The complainant vide various letters/e-mails asked the OP about the date of possession but never got reply. Feeling aggrieved the complainant got issued a legal notice dated 27.11.2015 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.7,15,000/- 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 OP had already filed a civil case before the civil court challenging the agreement, 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.7,15,000/- out of Rs.24,00,000/-. 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 his affidavit Ex. CW-1/1; copies of buyer agreement Ex.C-1; e-mails Ex.C-2 to C-4; letter Ex.C-5; postal receipt Ex.C-6; e-mail Ex.C-7; letter Ex.C-8; postal receipt Ex.C-9; legal notice Ex.C-10; postal receipt Ex.C-11; 10 original photographs Ex.C-12 and the information received under RTI Ex.C-13 and C-14. 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 2 BHK BR Apartment No.2497 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 900 sq. ft.  was allotted to the complainant at a sale consideration of Rs.24,00,300/- which was rounded to Rs.24,00,000. This apartment was purchased by the complainant initially by paying amounts of Rs.1,85,000/-  and Rs.1,15,000/- to the OP.  Another payment of Rs.3,00,000/- was made by the complainant to the OP on 29.04.2011. Thereafter, buyers agreement was executed between the parties on 25.05.2011 and the construction of the apartment was to be completed within a period of 18 months i.e. by 25.11.2012. The complainant made payment of Rs.6,00,000/- to the OP at the time of signing of buyers agreement on 25.05.2011 and Rs.1,15,000/- on 28.06.2012. As there was no construction, development made by the OP, the complainant got issued various letters and e-mails and ultimately legal notice dated 27.11.2015 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 buyers agreement dated 25.05.2011.  The complainant himself has agreed to pay the installments within the stipulated period as per the buyers agreement.  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.7,15,000/- 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 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 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.7,15,000/- (Rs. Seven lacs fifteen thousand 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 OP and litigation cost of Rs.5000/- (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 01.09.2016 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: 12.09.2016    

                                         (A.P.S.Rajput)            

President

                 (Amrinder Singh Sidhu)

                  Member