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

                                       Consumer Complaint No.619 of 2015                                                          Date of institution:  18.11.2015                                               Date of decision   :  06.02.2017

Ms. Raman Sharma wife of Ramesh Sharma, resident of H.No.3172/2, Sector 41-D, Chandigarh.

                                  ……..Complainant

                                        Versus

1.     M/s. Bajwa Developers Limited through its Managing Director Shri Jarnail Singh Bajwa, Office :  Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali.

2.     Shri Jarnail Singh Bajwa, Office :  Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali  , Managing Director M/s. Bajwa Developers.

                                                      ………. Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum

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

Present:    Shri Nitin Gupta, counsel for the complainant.

                Shri Kulwinder Singh, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant, Ms. Raman Sharma has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The complainant entered into an agreement to sell on 02.05.2011 with the OPs for purchase of 1 BHK BR No. (1256) measuring 450 sq. ft. at Sunny Apartment F21 Mohali, Sector 74-A, 117 Mohali at a total sale consideration of Rs.12,00,150/-. The complainant had paid an amount of Rs.3,00,000/- to the OPs. Thereafter, the complainant applied to the bank for loan to pay the balance sale consideration but the bank refused to grant the loan on the ground that the flat was not having clear title and not even having necessary approvals of the Govt. to raise construction. However, OP No.2 informed that the complainant that they are in the process of getting clearance and also extended the period of registry. Even after passing of four years, the OPs have failed to get the necessary approvals because of which the loan could not be got sanctioned by the complainant.  Feeling aggrieved the complainant got issued a legal notice dated 14.11.2014 but no reply was sent by the OPs.  The OPs are using the funds of the complainant for earning profits which amounts to unfair trade practice.  Hence this complaint for giving directions to the OP to refund the deposited amount of Rs.3,00,000/- alongwith interest @ 18% per annum; compensation of Rs.50,000/- for harassment and mental tension and Rs.35,000/- as litigation expenses.

3.             The complaint is contested by the OPs by filing reply, in which they have raised certain preliminary objections, inter alia, 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.3,00,000/- and as per agreement the amount deposited by the complainant is liable to be forfeited.  On merits, the OPs 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 agreement to sell Ex.C-1; legal notice Ex.C-2 and postal receipt Ex.C-3. 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 complainant that 1 BHK BR Apartment No.1256 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.12,50,100/-.  Learned counsel has argued that the complainant had paid a total sum of Rs.3,00,000/- to the OPs as per the agreement to sell  dated 02.05.2011. The complainant applied to the bank for obtaining loan in order to make balance payment but the loan was not sanctioned by the bank on the ground that the OPs does not have the necessary approvals/sanctions from the competent authority.  Ultimately, the complainant got issued legal notice dated 14.11.2014 for refund of the deposited amount but no reply was sent by the OPs. 

6.             On the other hand, the learned counsel for the OPs has contended that the complainant has committed default in making payment of installments as per agreement to sell dated 02.05.2011.  The complainant herself had agreed to pay the installments within the stipulated period as per the agreement to sell.  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 case also the complainant had paid Rs.3,00,000/- 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.

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 the deposited amount of Rs.3,00,000/- (Rs. Three Lakhs only) to the complainant. 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 OPs and litigation cost of Rs.5,000/- (Rs. Five thousand only).   The present complaint 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 complaint were heard on 02.02.2017 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: 06.02.2017    

                                         (A.P.S.Rajput)           

President

(Amrinder Singh Sidhu)

Member