DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                        (1)          Consumer Complaint No.674 of 2015

                                                Date of institution:  14.12.2015                                         Date of decision   :  13.10.2016

Pavittar Singh son of Darshan Singh, resident of 67, Ward No.6, Garden Colony, Morinda, District Mohali, Punjab.

 ……..Complainant

(2)          Consumer Complaint No.676 of 2014

                                                Date of institution:  14.12.2015                                         Date of decision   :  13.10.2016

Pavittar Singh son of Darshan Singh, resident of 67, Ward No.6, Garden Colony, Morinda, District Mohali, Punjab.

 ……..Complainant

                                        Versus

1.     M/s. Bajwa Developers Limited, Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali, Punjab – (Through its Managing Director Shri Jarnail Singh Bajwa).

2.     Shri Jarnail Singh Bajwa son of Shri Bishan Singh, Managing Director of M/s. Bajwa Developers Limited, Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali, (Punjab).

                                                           ………. Opposite Parties

Complaints under Sections 12 to 14

of the Consumer Protection Act

Quorum

Shri Ajit Pal Singh Rajput, President                 

Mrs. R.K. Aulakh, Member.

Present:    Shri Ashok Sharma, counsel for the complainants.

                Shri Kulwinder Singh, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                  By this common order, we are disposing of above said two complaints as both are having same controversy as well as similar question of facts and law.

                The commons facts are that the complainant had entered into agreements to sell  dated 17.06.2011  with the OPs for purchase of two separate flats consisting 1 BHK Flat BR No.(763) 1563 and Flat No.1 BHK (759) 1559 in village F21, Mohali, Sector 74-A, 117 each measuring 450 sq. ft. for a total sale consideration of Rs.12,50,100/- each. The complainant at that time paid Rs.3,12,500/- for each flat to the OPs as earnest money on 17.06.2016.  At the time of agreement, the OPs assured the complainant to pay the remaining amount in installments by 17.12.2012 and thereafter the possession of the flat was to be delivered and sale deed was to be executed in favour of the complainant. Thereafter, the complainant visited the site many times but found that there was no development at the site. Due to non commencement of development, the OPs orally extended the agreement to sell several times. Ultimately, the complainant requested the OPs to refund the amount but OPs have been lingering on the matter.  However, in July, 2015 the OPs have flatly refused to refund the amount to the complainant. Hence this complaint for giving directions to the OPs to refund the deposited amount of Rs.3,12,500/- paid towards each flat alongwith interest @ 18% per annum w.e.f. 17.06.2011; compensation of Rs.5,00,000/- for mental and physical harassment and Rs.50,000/- as litigation expenses.

3.             The complaints are contested by the OPs by filing reply, in which they had raised certain preliminary objections, inter alia, that the complainant is not a consumer as he has booked two flats in his own name. The OPs have already filed suit for declaration regarding agreement to sell before the civil court and notice has been issued to the complainant, hence present complaint deserves to be dismissed. This Forum has no jurisdiction to entertain and try the complaints as the complainant had withdrawn the earlier complaints filed before the Permanent Lok Adalat. As per Legal Services Authority Act 22-C (2) after an application is made under sub section (1) to the Permanent Lok Adalat no party to that application shall invoke jurisdiction of any court in the same dispute. In the present case civil suit was already filed by the OPs in the civil court and the complainant had filed application before the Permanent Lok Adalat, thus the present complaint cannot be taken up before this Forum. The complainant has committed default in payment of installments and as per Clause 3 of the agreement the amounts deposited by the complainant are liable to be forfeited.  The complainant was well aware that approval of the project was under process and it will take time for getting the approval and possession of the flat.   On merits, the OPs have denied the averments and prayed for dismissal of the complaints.

4.             In order to prove their case, parties led their respective evidence.

5.             It has been argued by learned counsel for the complainant that the complainant had booked two flats at F21 Mohali, Sector 74-A, 117 Mohali each having covered area of 450 sq. ft.  at a sale consideration of Rs.12,50,100/- each. At the time of entering into agreement the complainant paid Rs.3,12,500/- against each flat and the remaining amount was to be paid in installments. As there was no construction, development made by the OPs at the site, the complainant visited the OPs for refund of the deposited amount but no reply was given by the OPs.  It has further been argued that the complainant has booked 2 flats for himself and his parents and not for resale or for commercial purposes.  The complainant has withdrawn the application filed before the Permanent Lok Adalat with permission to prefer the complaint before this Forum. The power of Consumer Fora is in addition to and not in derogation in any other law. Learned counsel for the complainant has thus argued that the complaint before this Forum is maintainable.

6.             On the other hand, the learned counsel for the OPs  has argued  that as per Legal Services Authority Act Section 22-C (2) after an application is made under sub section (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any court in the same dispute. In the present case civil suit was already filed by the OPs and the complainant had filed application before the Permanent Lok Adalat thus the present complaint cannot be taken up before this Forum. Learned counsel for the OPs has further argued that the complainant has booked two flats and as per the latest decision of Hon’ble National Commission Kavita Kothari Vs. Samriddhi Developers Pvt. Ltd. & Ors, First Appeal No.676 of 2015 decided on 07.09.2016, he is not a consumer.  However, we find that the facts of the aforesaid case are extinguishable from the facts of the present complaints. In the present complaints, the complainant has specifically mentioned in the affidavits Ex.CW-1/1 in both the complaints that he has booked 2 flats for himself and his parents and not for resale or for commercial purposes.

                Learned counsel for the OPs has further argued that the complainant has committed default in making payment of installments as per buyers agreement dated 17.06.2011.  The complainant himself had agreed to pay the installments within the stipulated period as per the agreements dated 17.06.2011.  Learned counsel for the OPs 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 complaints also the complainant had paid Rs.3,12,500/- to the OPs 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. With regard to Legal Services Authority Act Section 22-C (2) contention of learned counsel for the OPs is not acceptable as the powers of Consumer Fora are in addition to and not in derogation in any other law. The object of the Consumer Protection Act, 1986 is for better protection of the consumers. The case law relied upon by learned counsel for the OP Kavita Kothari Vs. Samriddhi Developers Pvt. Ltd. & Ors,(Supra) that complainant is not a consumer, we are of the view that the facts of the aforesaid case are distinguishable from the facts of the present complaints. In the present complaints, the complainant has specifically mentioned in the affidavits Ex.CW-1/1 in both the complaints that he has booked 2 flats for himself and his parents and not for resale or for commercial purposes.  Thus, we hold that the complaints are maintainable before this Forum. 

8.             In view of our aforestated discussion and the judgment citied by the OPs 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 OPs to refund to the complainant the deposited amount of Rs.3,12,500/- (Rs. Three lacs twelve thousand five hundred only) in each complaint. We also find that the complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony and litigation cost of Rs.5,000/- (Rs. Five thousand only).   The present complaints stands partly allowed.            

                The OPs are further directed to comply with the order of this Forum within 45 days from the date of receipt of this order, otherwise the OPs shall be liable to pay 8% interest per annum on the total cost awarded.

                The arguments on the complaints were heard on 04.10.2016 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: 13.10.2016    

                                           (A.P.S.Rajput)                                                  President

(Mrs. R.K. Aulakh)

Member