DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.657 of 2015
Date of institution: 07.12.2015 Date of decision : 25.07.2017
Manoj Arora son of late Brij Bhushan Arora, resident of House No.46, Bank Colony, Sri Ganga Nagar.
……..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 Section 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President
Mrs. Natasha Chopra, Member.
Present: Shri Abhishek Bhateja, counsel for the complainant.
Shri Kulwinder Singh, counsel for the OP.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Manoj Arora has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant had purchased 1 BHK BR No.(775) Apartment No.1575 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 450 sq. ft. at a sale consideration of Rs.12,00,150/- which was rounded off to Rs.12,00,000/- from Amit Sharma resident of House No.379, Sector 41-A, Chandigarh by paying Rs.10,000/- as transfer fee vide receipt dated 11.08.2011 to the OP. Thereafter, the complainant paid Rs.3,50,000/- to the OP as part payment of the apartment and entry to this effect was made in the Buyers agreement by the OP. Buyers agreement was executed between the parties on 11.08.2011. It was mentioned in the buyers agreement that the construction of the residential unit was to be completed by 05.12.2012. The complainant had made the total payment of Rs.3,50,000/- to the OP. The complainant came to know that nothing worthwhile has been done for the progress of the project as no construction activity has been started at the site. The complainant made number of calls and also visited the office of the OP but could not get a satisfactory response. The complainant sent a legal notice dated 23.09.2015 to the OP and sought refund of the deposited amount alongwith interest or in the alternative to deliver possession of the flat. 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 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.3,50,000/- alongwith interest @ 24% per annum; compensation of Rs.3,00,000/- 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 pleaded that the OP had filed a case before the Civil Judge (Senior Division) on 30.10.2015 challenging the agreement on the basis of which the present complaint has been filed, as such the present complaint is liable to be dismissed. The complainant has committed default in making payments of installments and as per agreement an amount Rs.3,50,000/- deposited by the complainant is liable to be forfeited. The complainant is stopped by his own act and conduct to file the present complaint. The complainant was well aware that the approvals of the project are under process and it will take time for getting the approvals. The LOI was received on 19.05.2014 from GMADA. The complainant had paid only Rs.3,50,000/- out of Rs.12,00,000/-. Thus the OP has sought dismissal of the complaint.
4. In order to prove the case, the counsel tendered in evidence affidavit of the complainant Ex. CW-1/1; copies of receipt Ex.C-1; agreement to sell Ex.C-2; legal notice Ex.C-3; postal receipt Ex.C-4; photographs Ex.C-5 to C-14 and information received under RTI Ex.C-16. In rebuttal counsel for the OP tendered in evidence affidavit of Jarnail Singh Bajwa, MD Ex.OP-1/1.
5. It has been argued by learned counsel for the complainant that 1 BHK BR No.(775) Apartment No.1575 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 450 sq. ft. was purchased by the complainant at a sale consideration of Rs.12,00,000/- from Amit Sharma by paying Rs.10,000/- as transfer fee to the OP. Learned counsel has argued that the complainant had paid a total sum of Rs.3,50,000/- to the OP as per the agreement to sell dated 11.08.2011. The possession of the flat was to be handed over to the complainant by 05.12.2012. Learned counsel for the complainant has argued that the complainant visited the OP number of times but no satisfactory reply regarding handing over the possession of the apartment was given to him. Learned counsel has thus prayed that the amount deposited by the complainant may be got refunded alongwith interest and compensation for mental agony, harassment besides costs of litigation.
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 agreement to sell dated 11.08.2011. Learned counsel for the OP further argued that all the necessary approvals and sanctions for the project in question are under process and there is no deficiency in service on the part of the OP.
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 the complainant had purchased the apartment by transfer from Amit Sharma by paying Rs.10,000/- as transfer fee to the OP. Thereafter, the complainant paid Rs.3,50,000/- to the OP towards sale consideration of the apartment. The complainant did not pay the remaining installments as no construction/development work was taking place at the site. Thus, it is established from the material placed on record by the complainant that he is not a defaulter in making payment of the installments. The OP has not been able to produce any record to prove that it had offered the possession to the complainant before the stipulated date. Rather the complainant has submitted the photographs Ex.C-5 to C-14 to show that there is no development at the site. Thus, the complainant is entitled to receive the deposited amount alongwith interest. The Hon’ble State Consumer Disputes Redressal Commission in Ms. Sneh Sood Vs. M/s. Bajwa Developers Ltd. in Consumer Complaint No.240 of 2016 decided on 23.02.2017 has ordered refund of the deposited amount of the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund.
8. Accordingly, in view of our aforesaid discussion, we direct the OP to refund the deposited amount of Rs.3,50,000/- (Rs. Three Lakhs Fifty thousand only) to the complainant alongwith interest @ 12% per annum from the date of deposit till the date of actual refund. We also find that complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony due to the negligent act of the OP and litigation cost of Rs.10,000/- (Rs. Ten thousand only). The present complaint stands allowed accordingly.
The OP is further directed to comply with the order of this Forum within 30 days from the date of receipt of this order, failing which the amount of compensation awarded shall carry interest at the rate of 12% per annum from the date of this order till realisation.
The arguments on the complaint were heard 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: 25.07.2017
(A.P.S.Rajput)
President
(Mrs. Natasha Chopra)
Member
