DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.345 of 2018
Date of institution: 22.03.2018 Date of decision : 20.05.2019
Mrs. Jasbir Kaur wife of Shri Raghbir Singh, resident of House No.449, Sector 61, Chandigarh.
…….Complainant
Versus
M/s. Bajwa Developers Ltd. through its M.D. Jarnail Singh Bajwa son of Shri Bishan Singh, SCO No.17-18, Sunny Enclave, Desu Majra, Kharar, District SAS Nagar, Mohali.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri Pyare Lal Sindhuria, counsel for complainant.
Shri Amit Sharma, counsel for OP.
Order by :- Shri G.K. Dhir, President.
Order
Complainant, being member of New Friend Enclave Group of PGI/PU Govt. Employee, got booked plot No.310 having area of 125 sq. yards in Sector 124, Sunny Enclave, Desu Majra, Kharar with OP in 2012 by depositing Rs.50,000/- through receipt dated 26.01.2012. Lucrative false promises were made by OP through publication of advertisements in newspapers and in information sheet. Details of payment to be made were incorporated in that sheet. OP assured to deliver possession uptill July, 2013. Agreement dated 30.04.2012 was executed. Basic facilities were not provided and nor development work completed by the date by which possession was promised to be delivered. In absence of basic amenities and completion of development work like water head tanks, sewerage pipes etc., possession of plot was not handed over to complainant. Rather it is claimed that plot No.310 is not in existence. Lay out plan of the mega project was initially approved by Chief Town Planner Punjab, Chandigarh, but this license was valid for three years only. Validity of this license expired in 2016 and same license has not been got renewed by OP despite the fact that it was responsibility of OP to get the license renewed. Sanctions from GMADA/Punjab Govt. even were not obtained by OP. In Clause-6 of agreement it is mentioned that in case for any technical reason, OP failed to develop Sector 124, then it will refund full payment including earnest amount. As OP is charging 18% interest from the buyers for late payment of installments and as such OP is supposed to pay this rate of interest to complainant. It is claimed that OP even after expiry of stipulated period charging development cost, but without completing project and as such the same act not only amounts to deficiency in service, but also constitutes offence of criminal breach of trust and of cheating. Request for refund remained unheeded resulting in physical and mental harassment of complainant. Complainant even filed complaint before Real Estate Regulatory Authority Punjab at Mohali but the same was rejected on the ground that developer is not registered with RERA, Mohali. Complainant seeking refund of paid amount of Rs.4,84,375/- plus Rs.3,87,400/- with interest @ 18% per annum. Compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.20,000/- more claimed.
2. In reply submitted by OP, it is admitted that complainant herself approached OP for getting booked 125 sq. yards of plot by depositing Rs.50,000/- as booking amount. Pamphlets and brochures do not form part of the agreement because they are meant for giving view of the launched project only. Information contained in the brochures and pamphlets do not correspond to the ground reality as per claim put forth in written reply. Complainant failed to make payment as per payment schedule. There is no promise made for delivery of possession by July, 2013. It is claimed that license obtained from Chief Town Planner by OP is still continuing. Admittedly complainant paid Rs.4,84,378/-, but it is claimed that remaining sale consideration amount has not been paid by complainant. Possession of the plot always delivered after receipt of full sale consideration amount. As despite the project being got approved, payment has not been made by complainant and as such complainant not entitled to any relief. OP has not charged 18% interest from any buyer. Complainant wants to wriggle out of terms of agreement after committing default in making payment of balance amount. As per Clause-10 of the agreement, complainant entitled to withdraw from the agreement and as such she can seek refund of amount with deduction of 10% of total earnest amount paid by her. Earlier complaint filed by complainant was dismissed on 24.09.2018. Complainant is not entitled to claim any interest, more so when she invested money in the plot for earning quick bucks during year 2012 when prices of real estate were escalating day by day. Refund of earnest amount could have been sought within two years, but this complaint filed after expiry of period of two years and as such complaint being barred by limitation, merits dismissal.
3. Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-8 and Ex.3-A, 6(1) and Ex.6 (2) and thereafter closed evidence. On the other hand counsel for OP tendered in evidence affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Director of OP and thereafter closed evidence. Later on, on filing of an application for additional evidence, same was allowed and complainant placed on record through additional evidence receipt Ex.C-9 and then closed additional evidence. No rebuttal to this additional evidence adduced by OP.
4. Written arguments submitted by complainant Oral arguments heard and records gone through.
5. Ex.C-1 is a document showing as if 125 sq. yards area plot applied by complainant and she was declared successful in draw in respect of plot No.310. Ex.C-2 is a receipt showing as if amount of Rs.50,000/- deposited by complainant with OP on 26.01.2012, but she deposited Rs.4,34,375/- more on 30.04.2012. So this receipt shows payment of Rs.4,84,375/- by complainant with OP by 30.04.2012. Copy of payment schedule produced on record as Ex.C-3/A and of payment plan of installments produced as Ex.C-3. Agreement Ex.C-4 arrived at between parties as per which total sale consideration of plot in question was Rs.19,37,500/-. Rs.3,87,500/- was payable after CLU, but balance 25% in the shape of first installment by 10.10.2012 and 20% by 10.01.2013. Balance 10% was payable at the time of delivery of possession/registration as per contents of Ex.C-4. Another receipt Ex.C-9 also produced to show as if complainant deposited Rs.3,87,400/- with the OP on 21.10.2014. So this documentary evidence produced on record certainly establishes as if an amount of Rs.8,71,775/- deposited by complainant with OP on the above referred dates.
6. In reply itself OP has claimed that pamphlets and brochures do not form part of agreement, but they are meant for giving view of launched project only. Further in Para No.2 of this written reply itself it has been mentioned that information contained in brochures and pamphlets do not corresponds exactly with the ground reality. In case these pleas taken in written reply taken on its face value, then same leaves no manner of doubt as if information through pamphlets and brochures supplied by OP to consumers like complainant without bothering about exact ground reality. That itself is unfair trade practice because what is professed through project to be sold, in fact not bothered to be brought in existence by OP. That virtually amounts to misrepresentation and cheating of gullible persons and as such these assertions being of serious nature, enough to find as if OP is adopting unfair trade practice.
7. Complainant has produced on record letter issued by Chief Town Planner Punjab Ex.C-5 dated 26.04.2013 for showing that approval of the project in question was sought by OP by filing application on 24.08.2012. However, amount of Rs.4,84,375/- mentioned in receipt Ex.C-2 got deposited before that date. So virtually above referred amount accepted by OP from complainant without bothering about viability of the project in question. Acceptance of amount without seeking approvals from competent authorities constitutes violation of Sections 3 and 6 of PAPRA Act, 1995 and as such complainant entitled for refund of paid amount with interest @ 12% per annum from the dates of deposits till payment. Even as per law laid down by Hon’ble State Consumer Disputes Redressal Commission Punjab in CC No.716, 789, 835 etc. of 2017 titled as Mangal Singh Kondal & others Vs. Bajwa Developer & Another and First Appeal No.318 of 2018 titled as Harpreet Singh vs. M/s. Bajwa Developers Limited & another, decided on 30.07.2018, in case amountd accepted through agreement without obtaining requisite approvals, then in view of provisions of Sections 3,6 and 12 of PAPRA Act read with Regulation 17 thereof, complainant concerned will be entitled for refund of deposited amount with interest @ 12% per annum from the dates of deposits till realisation. Ratio of these cases fully applicable to the facts of the present case.
8. Complainant submitted request for refund Ex.C-6 (1) on 03.10.2017 by claiming that OP failed to allot plot No.310 in Sector 124 and similar request Ex.C-6 (2) was submitted on 10.09.2017. Despite submission of these requests for refund, amount not refunded and as such certainly OP caused mental harassment and agony to complainant. Being so, complainant entitled to compensation and also to litigation expenses.
9. As a sequel of above discussion, complaint allowed with direction to OP to refund received amount of Rs.8,71,775/- (Rs. Eight Lakhs Seventy One Thousand Seven Hundred Seventy Five only) with interest @ 12% per annum from the dates of deposit till payment. Compensation for mental agony and harassment of Rs.25,000/- (Rs. Twenty Five thousand only) and litigation expenses of Rs.5,000/- (Rs. Five thousand only) more allowed in favour of complainant and against OP. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
May 20, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
