BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.  43 of 2015

                                 Date of institution:          04.02.2015

                                              Date of Decision:            15.07.2015

Pardeep Verma son of Muni Lal Verma, resident of House No.2238/91, Shanti Nagar, Street No.8A, Manimajra Town, Chandigarh.

    ……..Complainant

                                        Versus

M/s. Bajwa Developers Ltd. through its Managing Director namely Jarnail Singh Bajwa, Regd. Office, SCO 17-18, Sunny Enclave, Desumajra, Kharar, District SAS Nagar, Mohali.

………. Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh, Member

Mrs. R.K. Aulakh, Member.

Present:    Complainant in person.

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:

(a)    refund him Rs.13,00,000/- (Rs. Thirteen lacs only) alongwith interest @ 24% per annum.

(b)    pay him Rs.5,00,000/-  for mental agony and harassment etc.

(c)    pay him Rs.25,000/- as costs of litigation.

                The case of the complainant is that he purchased a 1 BHK flat No.1397 in Sector 74-A, Sunny Enclave the upcoming project of the OP. The consideration of the flat was paid by the complainant in time as per terms and conditions of the sale agreement Ex.C-1. Even after passage of one year, the OP failed to start construction and told the complainant that the construction would take some more time and also told the complainant that the flats would not be constructed as per agreement. The OP offered to the complainant the other newly carved out plot and committed that the possession would be given within 6 months. The OP also assured that the rate of the offered plot shall be less than the market rate.  Under these circumstances, the complainant entered into an agreement with the OP for purchase of a plot instead of flat. The OP assured that the sale deed would be executed within 3 months and the complainant would get the possession within 6 months of execution of agreement.  The complainant purchased a plot of 105 sq. yard in Sector 123 @ Rs.18,300/- per sq. yard vide sale agreement dated 31.07.2013.  The total amount of the plot was Rs.19,20,000/-.  The complainant paid Rs.1,00,000/- to the OP vide receipt dated 30.12.2013. Thus a total amount of Rs.13,00,000/- was paid to the OP by the complainant. It was agreed that the remaining payment shall be made after execution of the sale deed.  The complainant requested the OP to provide him documents of the plot for obtaining loan but the OP has denied to handover any document to the complainant and extending the date of execution of sale deed. The requests of the complainants went in vain.  The complainant has also come to know that there is no such plot available with the OP.  The complainant also got issued a legal notice dated 15.12.2014 but the amount has not been refunded to him. With these allegations, the complainant has filed the present complaint.

2.             After admission of the complaint, notice was sent to the OP.  The OP has pleaded in the preliminary objections that the complainant failed to deposit the installments as per agreement and on the request of the complainant the agreement was extended but even then the complainant failed to deposit/pay further installments.  As per the terms of the agreement the amount deposited by the complainant is liable to be forfeited.  The complainant is not a consumer as defined under the Consumer Protection Act. No relation of Consumer-Service Provider is established.  Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.

3.             To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-10.

4.             Evidence of the OP consists of affidavit Jarnail Singh Bajwa its MD Ex.OP-1/1.

5.             We have heard learned counsel for the parties and have also gone through written arguments filed by them.

6.             It is admitted that the complainant has booked one BHK apartment No.1397, Sector, 74-A Sunny Enclave with the OP vide agreement to sell dated 10.06.2011 Ex.C-1. The total consideration for the flat was agreed as Rs.12.00 and the same has been paid by the complainant from 24.04.2011 to 17.11.2012 as per receipts issued by the OP on the reverse side of Ex.C-1. As per Ex.C-1 the complainant was to make whole payment by 24.10.2012 whereas he has made the total payment by 17.11.2012 i.e. after a delay of 21 days.  As per terms of agreement, the sale deed of the flat was to be done upon the full and final payment by the complainant.  Since the complainant has made the full payment, no sale deed was executed and, therefore, after vigorous follow up the OP offered him alternate site i.e. a plot of 105 sq. yard at the cost of Rs.19,20,000/- and the complainant accepted that offer and executed a fresh agreement to sell dated 31.07.2013 Ex.C-2.  As per the new agreement the previous deposited amount of Rs.12.00 lacs was to be adjusted against the new sale consideration and the remaining amount was to be paid by the complainant by 30.12.2013. However, the OP had extended the final date of payment on various occasions the last being 15.02.2015 as is evident from the handwritten changes made on the body of Ex.C-2. The said factum of extension of date for final payment has not been disputed by the parties.  In pursuance of this second agreement, the complainant has made further payment of Rs.1.00 lac on 30.12.2013 vide receipt Ex.C-3 and in all he has paid Rs.13.00 lacs as on 30.12.2013. For remaining amount, the complainant wanted to avail the loan from the bank and, therefore, he approached the OP vide Ex.C-4 to provide him complete details and requisite documents so that he could avail the bank loan for the purposes of arranging finances for execution of the sale deed. The said request dated 19.05.2014 Ex.C-4 has been sent to the OP by registered post as photocopy of the postal receipt is attached Ex.C-5. The OP did not respond to it and then complainant sent a reminder dated 23.06.2014 Ex.C-7 by registered post for providing documents and in case documents are not provided to him he had sought refund of the deposited amount. This letter also remained unanswered in the hands of the OP.  As a last resort the complainant sent a legal notice dated 15.12.2014 Ex.C-8 by registered post vide postal receipt Ex.C-9. There was no response against the legal notice as well.  The stop silence on the part of the OP to redress the grievance of the complainant, compelled him to raise the dispute and file the present complaint.

7.             The questions in the present complaint are (i) whether the complainant is entitled to refund of the deposited amount; (ii) whether the OP has illegally retained the deposited amount of the complainant and (iii) whether the act of the OP amounts to deficiency in service and unfair trade practice.

8.             The counsel for the complainant has submitted that the complainant is a consumer as he has availed the services of the OP for purchase of built up flat vide agreement to sell Ex.C-1 which was subsequently changed to fully developed plot vide agreement Ex.C-2 and he has paid Rs.13.00 lacs out of the agreed amount of Rs.19,20,000/- being the sale consideration. The OP has not provided him necessary details and documents for arranging loan from the bank for making balance payment and execution of the sale deed despite various requests and legal notice. When, nothing came forward from the OP, the complainant sought refund of the deposited amount alongwith interest and damages.  We have perused the record and found that in its reply the OP has admitted having received payment of Rs.13.00 lacs and rest of the averments made in the complaint are simply denied. Therefore, the simple denial on the part of the OP without any proper and logical explanation is of no help to it. Hence we hold that the complainant has proved on record his letters showing request for supply of requisite documents for arranging bank loan. Since the OP has filed to provide any document to the complainant, obviously the complainant was incapacitated to arrange loan for making further payment to the OP. As per agreements Ex.C-1 and C-2 the complainant was given the liberty to walk out from the scheme after seeking refund of the earnest money and in case that request comes to the OP, the OP was to deduct 10% of the earnest money and refund the amount three months thereafter. In the present complaint, the complainant has not only deposited the earnest money and has rather further deposited all installments as per agreement Ex.C-1 and further made payment of Rs.1.00 lac in lieu of the second agreement. Thus the case of the complainant is not of seeking refund of the earnest money and the case falls in a different category where the complainant has discharged his obligation and the OP has failed to discharge its obligation of providing necessary documents to the complainant and further not shown any development undertaken by it in the area. The mere plea of the OP in its reply to para 4 that it has obtained the permission from GMADA and work is in progress without any supporting document in this regard is of no help to it. Under the circumstances, we hold that the complainant is entitled to seek the refund of the deposited amount which he has deposited with the OP on various occasions starting from 24.04.2011 to 30.12.2013 i.e. Rs.13.00 lac.  It is well settled preposition of law as has been held by the Hon’ble National Commission in Kamal Sood Vs. DLF, 2007 (2) CLT 440 that a builder who has not obtained permission for construction in advance before issuing advertisement inviting the buyers to purchase the apartment and before collecting money has indulged into unfair trade practice and the complainants in such cases are entitled to refund of the deposited amount alongwith interest and compensation.

9.             The next question whether the retention and non refund of the deposited amount by the OP is legal or not as per terms of agreement to sell Ex.C-1 and C-2.  The deposited amount of Rs.13.00 lacs in pursuance of both the agreements is not disputed. The complainant’s request for providing necessary sanctions and documents in favour of the OP by the competent authority for seeking loan from the bank remained unanswered as has been amply proved on record. Therefore,  as per terms of agreement the complainant is well within his right to walk out of the agreement and seek refund, the complainant has rightly exercised his option whereas the OP has failed to make the refund of the amount. The act of the OP in this regard is against the terms of the agreement and, therefore, defaulted in making the refund to the complainant.  

10.           Thus, on the basis of first two questions as answered in the above paragraphs, the OP has clearly indulged in unfair trade practice and has been found deficient in rendering the promised service to the complainant.  Since the valuable property of the complainant has been retained illegally by the OP and the complainant has been deprived of the shelter on his head which he has long cherished and now the cost of the land has also escalated which will enhance the financial burden of the complainant causing him financial loss and mental agony due to the acts of omission and commission on the part of the OP. Therefore, the complaint deserves to be allowed and the complainant deserves to be compensated.

11.           In view of above discussion, the complaint is allowed with the following directions to the OP to:

(a)    refund to the complainant his deposited  amount of Rs.13,00,000/- (Rs. Thirteen lacs only) with interest thereon @ 12% per annum from the respective dates of deposit till actual refund.

(b)    to pay to the complainant a 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.                           

July 15, 2015.     

                          (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member