BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.296 of 2015
Date of institution: 23.06.2015
Date of Decision: 18.03.2016
Varun Verma son of Bharat Bhushan Verma, resident of Near Sarafa Bazar, Bassi Pathana, District Fatehgarh Sahib voluntarily residing at Sector 38 West, Chandigarh.
……..Complainant
Versus
M/s. Bajwa Developers Ltd. through its Managing Director Jarnail Singh Bajwa son of Bishan Singh, 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.
Mrs. R.K. Aulakh, Member.
Present: Ms. Jaspreet Kaur Somal, cl. 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:
- Refund him Rs.3,75,000/- plus Rs.30,000/- paid as stamp duty, alongwith interest @ 18% per annum from the date of deposit.
- to pay an amount of Rs.2,00,000/- for mental harassment and deficiency in service.
- To pay Rs.25,000/- as costs of litigation.
The case of the complainant is that with the intervention of one Munish Kumar he in the year 2011 agreed to purchase 1 BHK BR No.(1446): 1646 area 450.00 sq. ft. (approx.) in Rs.12.00 lacs in the project of the OP in Sector 74-A, 117 Mohali. An agreement dated 11.03.2011 was also executed between the parties. A total amount of Rs.3,75,000/- was deposited by the complainant through Munish Kumar in two installments i.e. Rs.1,25,000/- on 23.04.2011 and Rs.2,50,000/- on 30.04.2011. The complainant on going through the agreement found some irregularities and infirmities which he brought to the notice of Munish Kumar and the OP. However, the OP assured that the bifurcation was made in account and installments schedule is only for formality sake for accounting purposes and said that nothing is wrong. The complainant also deposited Rs.30,000/- as stamp duty in advance on 30.04.2011.
The rest of the amount was to be paid in 18 months @ Rs.1,80,000/- with gap of four months per installments. However, the OP made false promise to build the project in 18 months as no infrastructure or development has been made at the site. The complainant served legal notice dated 05.05.2015 upon the OP but OP has not responded to the same. With these allegations the complainant has filed the present complaint.
2. The OP in the preliminary objections of its written statement has pleaded that the OP has already filed suit for declaration regarding cancellation of agreement to sell. As such the present complaint is liable to be dismissed. The complainant is not a consumer as no plot number has been allotted to him till date. 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 consideration of Rs.12,00,150/-. The complainant has failed to implead the dealer through which he has booked the flat. The complainant has failed to pay the installments within stipulated period. As such the complainant is stopped by his own act and conduct to file the present complaint. Hence the agreement itself has become void and now the complainant cannot take U turn and derive his right from a void and non existence document. 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. On merits, it is admitted that the complainant paid two installments but the deposit of amount of Rs.4,05,000/- has been denied. It is admitted that the complainant has paid only Rs.3,75,000/- in total and failed to deposit any of the installment as per agreement. No where in the entire agreement the OP has given any assurance regarding handing over the possession. Thus, denying any deficiency in service or unfair trade on their part, the OPs have sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record his affidavit Ex.CW-1/1; affidavit of Gurinder Singh Ex.CW-2/1 and tendered in evidence documents Ex.C-1 to C-12.
4. Evidence of the OP consists of affidavit of J.S. Bajwa Ex.OP-1/1 and order of Civil Judge Sr. Division, Kharar Ex.OP-1.
5. We have heard learned counsel for the parties and gone through the written arguments filed by them.
6. It is admitted that the complainant purchased 1 BHK BR No.(1446): 1646 area 450.00 sq. ft. (approx.) in Rs.12.00 lacs in the project of the OP in Sector 74-A, 117 Mohali. An agreement dated 11.03.2011 was also executed between the parties. A total amount of Rs.3,75,000/- was deposited by the complainant through Munish Kumar in two installments i.e. Rs.1,25,000/- on 23.04.2011 and Rs.2,50,000/- on 30.04.2011. As per the receipt attached with agreement to sell Ex.C-1, as on 30.04.2011 the total paid a total sum of Rs.3,75,000/- to the OP. Further as per terms of agreement, the sale deed of the flat was to be done upon the full and final payment by the complainant. The complainant enquired from the OPs about the status of the project but no satisfactory response was given to him. The complainant also visited the site and found that there is no development as is evident from photographs Ex.C-4 to C-12. The OP has not produced any document to prove that the construction work on the project was in progress nor it has produced any evidence to show that the project was having necessary approvals and sanctions from the competent authorities. 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 buyer’s 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 perusal of the buyers agreement state that the OP has booked the said land from someone and was willing and ready to sell the same to the complainant. 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. Once the OP has failed to show the clear title in its own favour regarding the land on which it agreed to sell the plot to the complainant, the OP has indulged into unfair trade practice by signing the buyers agreement. The act of the OP per se being an illegal act in executing the said buyers agreement, is an act of unfair trade practice on the part of the OPs. The act of the OPs without having proper and necessary sanctions in their favour on the day of signing of agreement to sell with the complainant is an act of unfair trade practice as has been held by Kamal Sood Vs. DLF Universal Ltd (supra). Since the OPs act of unfair trade practice has been amply proved by the complainant, the signing of buyers agreement without clear title in their favour by the OPs, collection of various amounts to the tune of Rs.3,75,000/- from the complainant without necessary sanctions, the complainant has certainly suffered financial loss and mental agony and harassment due to the acts of omission and commission of the OPs. Therefore, the complainant deserves to receive back his deposited amount alongwith interest @ 12% per annum w.e.f. from the dates of respective deposit till realisation. The grant of said rate of interest on the deposited amount is in consonance with the orders passed by the Hon’ble Punjab state Consumer Disputes Redressal Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others, 2014(2) CLT 401.
7. The complaint, therefore, is allowed with the following directions to the OP:
(a) to refund to the complainant the total deposited amount of Rs.3,75,000/- (Rs. Three lacs seventy five thousand only) with interest thereon @ 12% per annum from the respective dates of deposit till actual refund.
(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.
March 18, 2016. (Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
