Haryana

Panchkula

CC/513/2021

MRS.MEENA KUMARI. - Complainant(s)

Versus

M/S BAJWA DEVELOPERS LTD. - Opp.Party(s)

ABHISHEK BHATEJA ,ARVIND SEHDEV&VISHWASK ARORA.

07 Jun 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	513 of 2021
Date of Institution	:	13.12.2021
Date of Decision	:	07.06.2022

 

 

Mrs. Meena Kumari wife of Mr.Bhupinder Kumar resident of House No.524, Sector-25, Panchkula.

                                                                ….Complainant.

 

Versus

M/s Bajwa Developers Limited, through its Managing Director, Shri Jarnail Singh Bajwa, office at SCO No.17-18, Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali                                                                                                                                                                                                                           ….Opposite Party

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member.

Dr.Sushma Garg, Member.

 

For the Parties:   Sh. Abhishek Bhateja, Advocate for the complainant.  

                        OP already proceeded ex-parte vide order dated 11.02.2022.

ORDER

(Dr. Pawan Kumar Saini, Member)

1.                The brief facts of the present complaint are that the OP floated a scheme of developing a housing project in Sector-123, Mohali by the name and style of Sunny Enclave. The project comprised residential plots and in pursuance of the same, marketed the sale of residential plots of various specifications. Relying upon the scheme, the complainant made an application for booking of a plot bearing no.622, at Sunny Enclave, E-10, Sector-123, Jandpur New Mohali measuring 200Sq. yds at a price consideration of Rs.27,80,000/-. The complainant purchased the said plot by paying an initial amount of Rs.6,00,000/- which is evident from the entry made on the buyer’s agreement. The complainant made payment of Rs.5,00,000/- on same day. In furtherance of this payment OP issued a Buyer’s Agreement Biana dated 06.01.2011, between OP and the complainant. The OP had assured that the possession of the plot would be delivered by 09.02.2011 or latest by 2 years. Subsequently, on 23.12.2011 another buyer’s agreement for the same property was entered into between the parties and the entries from the agreement dated 06.01.2011 was entered into the agreement dated 23.12.2011. The complainant on 04.01.2012 made another payment of Rs.10,80,000/-. Till then a total payment of Rs.21,80,000/- had been made. The complainant had purchased another property from the OPs and made a payment of Rs.6,00,000/- towards the said property but the OP could not deliver the said property  and after many negotiations, adjusted the payment of the said property in the plot  bearing no.622 at Sunny Enclave, E-10, Sector-123, Jandpur New, Mohali. The complainant after entering into buyer’s agreement made number of calls and also paid visits to the office of the developers but never got a satisfactory response. The complainant visited the OP after a period of one year as promised by the OP but the complainant was shocked to see that the project has not been developed by the OP. It is pertinent to mention that the agreement created by the OP is in complete violation of the Punjab Apartment and Property Regulation Act, 1995(PAPR Act). Due to the acts and conduct of the OPs, the complainant has suffered a great mental agony, harassment and financial loss; hence, the present complaint.

2.             Notice was issued to the OP through registered post no.CH036594601IN on 31.12.2021 which was not received back either served or unserved despite the expiry of 30 days from the issuance of notice to OP; hence, it was deemed to be served and thus, due to non appearance of OP, he was proceeded ex-parte by this Commission vide its order dated 11.02.2022.

3.             To prove the case, the ld. counsel for the complainant has tendered his affidavit as Annexure C-A along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement.

                During the course of arguments, the ld. counsel for the complainant has filed an affidavit of the house owner, namely, Rmuthu Kumar Swamy, which we have taken on record as Mark ‘A’. The rent deed which is already on record is assigned the Mark as Mark ‘B’ for the proper adjudication of the case.

4.             We have heard the ld. counsel for complainant and gone through the entire record available on the file, minutely and carefully.

5.             Evidently, the complainant booked a flat no.622 measuring 200Sq. Yrd. in housing complex, namely, Sunny Enclave, E-10, Sector-123, Jandpur New Mohali. The total cost of the flat was fixed as Rs.27,80,000/-. The complainant has made the entire payment qua the said flat as indicated in the tabular form as under:-

Sr.No.	Date	Amount(Rs.)	Details of documents (Annexure)
1.	06.01.2011	6,00,000/-	Receipt appended with agreement of sale(Annexure C-1)
2.	06.01.2011	5,00,000/-	Receipt appended with agreement of sale (Annexure C-1)
3.	30.04.2011	6,00,000/-	Annexure C-3(Adjustment from another property
4.	04.01.2012	10,80,000/-	Builder buyer’s agreement on 23.12.2011 (Annexure C-2)

                The aforesaid payments made on several dates are evident as per entries reflected in Builder Buyer’s Agreement dated 23.12.2011 (Annexure C-2).

6.             The grievances of the complainant are that despite having made the entire payment qua the price of the said flat to OP no step has yet been taken by the OPs towards the construction of the flat at site. The learned counsel contended that the complainant was assured by the OP that the possession of the flat would be delivered after a period of two years. It is also contended that the Op has not even obtained the necessary approvals, sanctions as well as the occupancy certificate from the competent authority.

The learned counsel has attributed the violation of the various provisions of the Punjab Apartment and Property Regulation Act, 1995 (PAPR Act) on the part of the OP and thus, alleging lapse and deficiency on the part of the OP and made the prayer as under:-

1. To deliver vacant physical possession of the fully developed plot bearing  No.622 at Sunny Enclave, E-10, Sector-123, Jandpur New, Mohali measuring 200Sq. Yds alongwith “Completion  Certificate” from the concerned competent authority as per the approved layout plan and all the promised  amenities subject to payment of balance payment, if any, without any interest or penal interest etc,;
2. To execute the sale/conveyance deed and get the same registered in the name of the complainant for which the expenses shall be borne by the complainant.
3. To pay compensation @18% per annum for causing financial loss and depriving the complainant of the use of the said amount of Rs.2780000/- during the period the same remained with the opposite parties.
4. To pay Rs.5,00,000/- as compensation for mental agony and harassment suffered by the complainant.
5. To pay Rs.55000/- as cost of litigation.

 

        Reliance has been placed upon the following case laws:-

1. Mr. Anita Tripathi Vs. M/s Bajwa Developers Ltd. decided on 09.04.2019 in C.C.No.106 of 2019(SCDRC, Punjab).
2. Mrs. Veerta Devi Vs. M/s Bajwa Developers Ltd. decided on 09.04.2019 in C.C.No.107 of 2019(SCDRC, Punjab)
3. Ravi Kumar Vs. M/s Bajwa Developers Ltd. & Anr. decided on 30.09.2020 in CC No.81 of 2020(SCDRC, Punjab).

 

7.             The OP preferred not to contest the present complaint and remained absent despite services of notice, accordingly, it was proceeded ex-parte vide order dated 11.02.2022 and thus, the assertions made by the complainant go unrebutted and uncontroverted.

8.             As mentioned above, the payment of the sum amounting to Rs.27,80,000/- by the complainant to OP is evident as reflected in building buyer agreement(Annexure C-2).

9.             Having perused the order dated 30.09.2020 passed by the State Commission, Punjab in complaint no.81 of 2020 titled as Ravi Kumar Vs. M/s Bajwa Developers Ltd. & Anr., it is evident that the housing complex, namely, Sunny Enclave, E-10, Sector-123, Jandpur New Mohali and its builder, namely, M/s Bajwa Developers Ltd. are the same which are involved in the present case. As per para 11 of the said order passed by the Hon’ble State Commission, Punjab, 24 numbers of the consumer complaints involving on similar question of laws and facts have been disposed of by it. Vide para no.16 of the Hon’ble State Commission, Punjab has observed as under:-

                “The C.P. Act came into being in the year 1986. It is one of the benevolent pieces of legislation to protect the consumers from       exploitation.The        spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by the opposite           parties to rebut the averments made in the complaint by way of authenticated           documentary           evidence. The complainant has made payment of substantial      amount to the opposite parties with the hope to get the possession of the fully      developed plot in a reasonable time. The circumstances clearly show that the         opposite parties made false statement of facts about the goods and services i.e.       allotment of land and development in a stipulated period and ultimate delivery      of possession. The act and conduct of the opposite parties is a clear case of        misrepresentation and deception. Had the complainant not invested his money      with the opposite parties, he would have invested the same elsewhere. There is         escalation in the price of construction also. The complainant has suffered loss,      as discussed above. From the facts and evidence brought on the record of the       complaint, it is clearly made out that the opposite parties i.e. builder knew from     the very beginning that they had not complied with the provisions of the PAPRA          and the Rules framed thereunder and would not be able to deliver the    possession within the stipulated period, thus by misrepresenting induced the           complainant to book the plot, due   to which he has suffered mental agony and     harassment. It is the settled principle of law that compensation should be       commensurate with the loss suffered and it should be just, fair and reasonable    and not arbitrary. The amount paid by the complainant is a deposit held by the          opposite parties in trust of complainant and it should be used for the purpose of     developing the plots, as mentioned in Section9 of PAPRA. Since there is no      likelihood of development of the project, which is lying abandoned and delivery        of possession of the fully developed plot in near future, therefore, it will be in   the interest of justice to order the opposite parties to refund the amount         deposited by the complainant alongwith compensation for causing financial loss          and depriving the complainant of the use of the said amount during the period       the same remained   with them at the rate of 12% per annum from the    respective dates of deposit till realization”.

10.            The matter in the present complaint is squarely cover by the orders passed by the Hon’ble State Commission, Punjab in the said complaint no.81 as well as  in other 24 numbers of consumer complaints as mentioned in Para No.11 of the said order. Further, there is no rebuttal on the part of the OP qua the assertions and contentions of the complainant made in the present complaint. In view of the findings recorded by Hon’ble State Commission, Punjab in various cases as mentioned above, we have no plausible reasons to differ with the same and thus, concluded that the OP had been deficient while rendering service to the complaint.

11.            To prove the territorial jurisdiction of this Commission, the complainant had placed on record the rent deed at the time of filing of this complaint to which we have assigned the mark as ‘Mark ‘A’ and today, he has filed an affidavit of house owner, namely, Rmuthu Kumar Swamy, which we have taken on record as Mark ‘B’. As per rent deed Mark ‘A’ and affidavit Mark ‘B’, it is evident that the complainant is resident of House No.524, Sector-25, Panchkula, which falls under the territorial jurisdiction of this Commission.

12.            Regarding relief, we deem it expedient to direct the OP to refund the deposited amount i.e. Rs.27,80,000/- alongwith interest @9% per annum w.e.f. from the date of each deposit till its actual realization. Apart from this, the complainant is also entitled to be compensated on account of mental agony, harassment and litigation charges.

13.            As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OP:-

1. The OP is directed to pay the amount of Rs.27,80,000/- with interest @9% per annum w.e.f. from the date of each deposit till its actual realization.

 

2. To pay an amount of Rs.20,000/- to the complainant on account of mental agony and harassment.

 

3. To pay an amount of Rs.5,500/-as litigation charges.

14.            The OP shall comply with the directions/orders within a period of 45 days from the date of communication of copy of this order to OP failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on: 07.06.2022

 

 

 

        Dr.Sushma Garg         Dr. Pawan Kumar Saini         Satpal

                Member                      Member                   President

 

Note: Each and every page of this order has been duly signed by me.

 

                                      Dr. Pawan Kumar Saini

                                             Member