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

                                      Consumer Complaint No.164 of 2016                                          Date of institution:  18.03.2016                                         Date of decision   :  27.09.2017

1.     Raghu Mohindru son of Anup Kumar Mohindru.

2.     Sonia Mohindru wife of Raghu Mohindru,

        Residents of 668, Phase-7, Mohali.

                                  ……..Complainants

                                        Versus

M/s. Bajwa Developers Limited having office at SCO No.17-18, Sunny Enclave, Desu Majra, District, SAS Nagar, Mohali through its Managing Director Shri Jarnail Singh Bajwa.

                                                      ………. Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum

Shri Ajit Pal Singh Rajput, President                          Shri Amrinder Singh Sidhu, Member.

Mrs. Natasha Chopra, Member.

Present:    Shri Simrandeep Singh, counsel for the complainants.

                Shri Kulwinder Singh, counsel for the OP.

ORDER

By Ajit Pal Singh Rajput, President

                Complainants Raghu Mohindru and Sonia Mohindru, have filed this complaint 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 complainants had booked with the OP one flat 1 BHK 1879 measuring 450 sq. feet on 23.05.2012 for a sum of Rs.12,00,150/- rounded off to Rs.12.00 lakhs in F21, Mohali, Sector 74A, 117. An agreement was entered into between the parties on 23.05.2012.  As per the agreement, the complainants paid to the OP first installment of Rs.3,00,000/- on 23.05.2012. It was agreed by the OP that the possession of the flat would be handed over soon.  Thereafter, the complainants got to know that the OP has not received the requisite sanction and approval from the competent authority and without the approval and sanction, the OP has executed the buyers agreement. The OP has also failed to show any progress at the site and has not handed over the possession till date to the complainants. The complainants called up the OP and even personally visited its office and even sent e-mails but no satisfactory reply has been received till date.  The complainants got issued legal notice dated 09.02.2016 to the OP for refund of the amount alongwith interest but the OP has not sent reply to the legal notice. Hence this complaint for giving directions to the OP to refund the amount of Rs.3,00,000/- alongwith interest @ 24% per annum from the date of deposit till realisation; compensation of Rs.1,50,000/- for mental agony and harassment and further compensation of Rs.1,00,000/- each for deficiency in service, unfair trade practice and costs of litigation.

3.             The complaint is contested by the OP by filing reply, in which it had raised certain preliminary objections, inter alia, this Forum has no jurisdiction to entertain and try the complaint as the transaction between the parties is purely sale agreement; as the complainants have committed default in payment of installments, as per Clause 3 of the agreement the amount deposited by the complainants is liable to be forfeited; the complaint is being filed without any cause of action. The complainants were well aware that the approvals of the project are under process and it will take time for getting the approvals and possession of the flat. The complainants did not pay the further installments and paid only Rs.3,00,000/- out of Rs.12,00,000/-  On merits, the OP has pleaded that the complainants were made aware that the approvals of the project are yet to be received. Thus, denying deficiency in service on its part, the OP has sought dismissal of the complaint.

4.             In order to prove the case, the counsel tendered in evidence affidavits of the complainants Ex. CW-1/1 and Ex.CW-1/2;   original agreement Ex.C-1; original receipt Ex.C-2; e-mail Ex.C-3; newspaper cutting Mark-A; orders dated 07.12.2015 of this Forum Mark-B &C; legal notice Ex.C-4; original postal receipt Ex.C-5 and its tracking report Ex.C-6. In rebuttal the OP tendered in evidence affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.

5.              Learned counsel for the complainants has argued that

that the complaint is to be allowed on this ground that there was violation of the provisions of the PAPRA by the OP and without having the requisite permissions/sanctions of the competent authorities it received amounts exceeding Rs.25,000/- and executed the Agreement Ex.C-1 regarding the flat in dispute. The Agreement is dated 23.05.2012 whereas CLU has been granted by the GMADA on 19.05.2014. By selling the flat without the

requisite permissions/sanctions the OP adopted unfair trade practice. There is no likelihood of the completion of the Project in the near future and as such, the complainants are no more interested in the possession of the flat and confines their request for refund of the amount along with interest and compensation for the harassment and mental agony suffered by them.

8.             On the other hand, it was submitted by the learned counsel for the OP that from the evidence produced on the record, it stands proved that it had already applied for permissions/sanctions of the competent authorities before the Agreement was executed and, as such, there was no violation of provisions of the PAPRA. The Project was exempted from the provisions of that Act and, as such, the complainants cannot invoke the same to get the relief claimed in the complaint. The complainants are not entitled to any of the amounts claimed in the complaint and the same is liable to be dismissed.

9.             We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties. According to the complainants, against the total price of Rs.12,00,000/- they paid an amount of Rs.3,00,000/-. The complainants have given the details of this payment in para no.2 of their complaint.  The opposite party had been collecting huge amounts from the buyers for the development of the Project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. It is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing its part of the Agreement. Except the bald statement of Jarnail Singh Bajwa, made in his affidavit Ex.OP-1/1, that the OP had applied for the

issuance of Letter of Intent or for permission for Change of Land Use before the Agreement, no supporting document has been proved on the record. The contents of the documents could have been proved only by the documents itself and the oral evidence produced by the OP cannot be relied upon. By executing the Agreement Ex.C-1 and receiving the amount more than Rs.25,000/- the OP had violated the provisions of PAPRA. It was not competent to execute the Agreement in respect of the flat and to receive different amounts. These acts on the part of the opposite party amount to adoption of unfair trade practice. In these circumstances the complainants are entitled to the refund of the amount so paid by them. Though they had not paid all the amounts as per the Agreement, yet keeping in view the fact that the opposite party had not obtained all the permissions/sanctions as per PAPRA from the competent authorities, the complainants were justified in not making further payments as and when these facts came to their knowledge. The OP cannot withhold their amount and is liable to refund the same along with interest. The Hon’ble State Consumer Disputes Redressal Commission in Ms. Sneh Sood Vs. M/s. Bajwa Developers Ltd. in Consumer Complaint No.240 of 2016 decided on 23.02.2017 has ordered refund of the deposited amount of the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund.

8.             Accordingly, in view of our aforesaid discussion, we direct the OP to refund the deposited amount of Rs.3,00,000/-   (Rs. Three Lakhs only) to the complainants alongwith interest @ 12% per annum from 23.05.2012 till the date of actual refund. We also find that complainants are entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony due to the negligent act of the OP and litigation cost of Rs.10,000/-  (Rs. Ten thousand only). The present complaint stands allowed accordingly.   

                The OP is further directed to comply with the order of this Forum within 30 days from the date of receipt of this order, failing which the amount of compensation awarded shall carry interest at the rate of 12% per annum from the date of this order till realisation.

                The arguments on the complaint were heard 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: 27.09.2017    

                                         (A.P.S.Rajput)           

President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member