DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.172 of 2016
Date of institution: 22.03.2016 Date of decision : 18.01.2017
Mrs. Tejinder Kaur wife of Devinder Singh Mangat, permanent resident of 13 Split Rail Road, Brampton Ontario, Canada through her special power of attorney Bhupinder Singh son of Amarjit Singh, resident of House No.201, Paradise Apartments, Sector 125, Sunny Enclave, Kharar, Mohali, Punjab.
……..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. R.K. Aulakh, 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. Tejinder Kaur has filed this complaint through her special power of attorney Bhupinder Singh 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 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 1 BHK Apartment having Apartment No.1291 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 450 sq. ft. at a sale consideration of Rs.12,50,000/- which was rounded to Rs.12,52,000/-. The complainant had purchased this apartment initially by paying an amount of Rs.1,00,000/- through cheque dated 22.04.2011 vide receipt No.PB 236/40 was issued by the OP. The complainant made further payment of Rs.2,12,500/- to the OP vide receipt No.PB 236/41. Again on 20.09.2011 Rs.1,87,800/- was paid by the complainant to the OP vide receipt No. PB 348/2. Buyers agreement was executed between the parties on 10.10.2011. 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 10.10.2012. The remaining amount was to be paid to the OP in 4 installments @ Rs.1,87,800/- by 18.11.2012. Accordingly, the complainant made payment of Rs.1,87,800/- to the OP on 01.02.2012; Rs.1,87,800/- on 01.06.2012 and the 4th installment of Rs.1,87,800/- on 17.10.2012. The payment of 5th installment of Rs.1,87,800/- was to be made at the time of registration of the sale deed. Thus, the complainant has made total payment of Rs.10,63,700/- to the OP by 17.10.2012. The complainant had not made payment of the last installment as there was no construction, development made by the OP. Even the OP also never raised any demand of money. The complainant was and is still ready to make the payment provided the flat is handed over to him by 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. Feeling aggrieved the complainant got issued a legal notice dated 05.02.2016 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.10,63,700/- alongwith interest @ 18% per annum; compensation of Rs.1,00,000/- 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 complaint is liable to be dismissed as the OP has already filed suit for declaration before the civil courts at Kharar; that 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.10,63,700/- out of Rs.12,52,000/-. 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 affidavit Ex. CW-1/1; copies of power of attorney Ex.C-1; agreement to sell Ex.C-2; receipts Ex.C-3 & C-4; original photographs Ex.C-5 to C-14; legal notice Ex.C-15; original postal receipt Ex.C-16; information received under RTI Ex.C-17 and C-18. 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 complainants that 1 BHK BR Apartment No.1120 at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali having covered area of 450 sq. ft. was allotted to the complainant at a sale consideration of Rs.12,50,000/- which was rounded to Rs.12,52,000/-. Learned counsel has argued that the complainant had paid a total sum of Rs.10,63,700/- to the OP as per the agreement to sell dated 10.10.2011. The construction of the apartment was to be completed within a period of 18 months i.e. by 18.11.2012. Learned counsel for the complainant has argued that the complainant did not pay the last installment as the same was to be paid at the time of registration of sale deed. As there was no construction, development made by the OP, the complainant visited the OP number of times and ultimately got issued legal notice dated 05.02.2016 for refund of the deposited amount alongwith interest. In support of this contention, learned counsel for the complainant has relied upon the decision of the Hon’ble State Consumer Disputes Redressal Commission Punjab in Managing Director Bajwa Developers Ltd. & Anr. Vs. Varinder Kumar Gupta, in First Appeal No.1269 of 2015 decided on 04.10.2016. It has been observed by the Hon’ble State Commission in Para No.10 as under:
“As per the agreement, the last payment was to be paid on 28.12.2012. Normally, the final payment is taken when the flats are ready for possession but in this case, nothing was done by the OPs upto 19.05.2014. In case no specific date for the possession is given then it should be a reasonable time and where the OPs has indulged in unfair trade practice then the complainant is entitled for refund of the amount deposited by him. In these circumstances, the order passed by the District Forum is justified giving refund of the amount deposited by the complainant. This factual and legal position was not rebutted by the counsel for the OPs.”
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 10.10.2011. Learned counsel for the OP further argued that all the necessary approvals and sanctions were received by the OP for the project in question 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 paid Rs.10,63,700/- to the OP but did not pay the last installment as the OP had not got executed the sale deed of the flat of the complainant. As per the buyers agreement Ex.C-2 the last installment was to be paid at the time of registration of the sale deed. Thus, it is established from the material placed on record by the complainant that she is not a defaulter in making payment of the last installment. Rather it was the OP who had not got the sale deed executed by stipulated date i.e. 18.11.2012. 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.
8. In view of our aforestated discussion and the decision of the Hon’ble State Commission, Punjab in case titled as Managing Director Bajwa Developers Ltd. & Anr. Vs. Varinder Kumar Gupta (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.10,63,700/- (Rs. Ten Lakhs Sixty Three Thousand Seven Hundred only) to the complainant alongwith interest @ 12% per annum from the respective dates of receipt till 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 caused to the complainant due the negligent act of the OP and litigation cost of Rs.5,000/- (Rs. Five thousand only). The present complaint stands allowed accordingly.
The OP is further directed to comply with the order of this Forum within 45 days from the date of receipt of this order. The arguments on the complaint were heard on 12.01.2017 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: 18.01.2017
(A.P.S.Rajput)
President
(Mrs. R.K. Aulakh)
Member
