DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.683 of 2015
Date of institution: 22.12.2015 Date of decision : 12.09.2016
Mrs. Harleen Kaur wife of Ajit Pal Singh, resident of House No.2627, Sector 70, Mohali.
……..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, Mrs. Harleen Kaur wife of Ajit Pal Singh, resident of House No.2627, Sector 70, Mohali, 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 Apartment No.2468 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 in re-sale and the complainant paid an amount of Rs.15,000/- in cash to the OP vide receipt dated 05.03.2012 towards transfer charges. A buyers agreement was executed between the parties on 05.03.2012. The construction of the residential unit was to be completed within a period of 13 months i.e. by 07.04.2013. The complainant made payment of Rs.6,00,000/- to the OP entry of which was made in the buyers agreement. 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.3,60,000/- to the OP vide cheque dated 09.12.2012 and the OP issued receipt dated 09.12.2012 in token of receipt of payment. Another payment of Rs.3,60,000/- was made by the complainant vide cheque dated 09.03.2013 and receipt of the same date was also issued by the OP. 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 her by the OP. Till date the complainant has made a total payment of Rs.13,20,000/- to the OP. The complainant made number of calls and also visited the office of the OP but could not get a satisfactory response. 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.13,20,000/- alongwith interest @ 15% per annum; compensation of Rs.1,50,000/- 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; the complainant is not a consumer as she has purchased the flat in re-sale; 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.13,20,000/- 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 her affidavit Ex. CW-1/1; copies of receipt Ex.C-1; buyer agreement Ex.C-2; receipts Ex.C-3 and C-4; legal notice Ex.C-5, postal receipt Ex.C-6; 10 original photographs Ex.7 and the information received under RTI Ex.C-8 and C-9. 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.2468 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 in re-sale by paying amount of Rs.15,000/- to the OP vide receipt dated 05.03.2012. Thereafter, buyers agreement was executed between the parties on 05.03.2012 and the construction of the apartment was to be completed within a period of 13 months i.e. by 07.04.2013. The complainant made payment of Rs.6,00,000/- to the OP at the time of signing of buyers agreement on 05.03.2012, Rs.3,60,000/- on 09.12.2012 and another payment of Rs.3,60,000/- was also made by the complainant vide cheque dated 09.03.2013. As there was no construction, development made by the OPs, the complainant got issued a 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 05.03.2012. The complainant herself 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.13,20,000/- 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.13,20,000/- (Rs. Thirteen lacs twenty 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
