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

                                  Consumer Complaint No.251 of 2015

                                 Date of institution:          01.06.2015

                                             Date of Decision:            07.12.2015

Renu Gupta  Wife of Dinesh Gupta, resident LIC129, Sector -1, Parwanoo, Himachal Pradesh.

                                     ……..Complainant

                                        Versus

1.     The Managing Director, Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.

2.     The Manager (Sales), Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.

                                                        ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Pankaj Maini, counsel for the complainant.

Shri Kulwinder Singh, counsel for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

(a)    pay her Rs.6,25,000/- alongwith interest @ 24% per annum from 30.04.2011 till date and the total amount comes to Rs.12,25,000/-.

(b)    pay her compensation of Rs.5,00,000/- for mental torture, harassment, agony and pain.

        (c)    pay her punitive loss of Rs.1,75,000/-.

                The case of the complainant that she has booked one BHK BR No.(1336) 2536, F21, Mohali  Sector 74A-117 on 30.04.2011.   The OPs have agreed to sell the fully constructed habitable plot to the complainant vide agreement to sell dated 30.04.2011. The cost of the flat was Rs.25.00 lacs and the area of the flat was 900 sq. ft. As per the agreement, the complainant has paid first installment of Rs.6,25,000/- to the OPs as on  30.04.2011 and thereafter it was agreed that the possession of the flat will be handed over on 30.10.2012 and the sale deed was to be executed within 10 days thereafter.  The complainant found the OPs lacking on that account as they have not received the requisite sanction and approval from the competent authorities before executing the buyers agreement and receiving the payment in pursuance thereof from the complainant.  The OPs have failed to show any progress at site and has not handed over the possession on 30.10.2012 the complainant. The complainant got intimation from the GMADA authorities vide Ex.C-2 that the letter of intent in favour of the Ops have been issued in favour of the competent authority on 19.05.2014. Even the legal notice sent by the complainant remained unanswered in the hands of the OPs. Thereafter disbelieving the promises made by the OPs in the buyers agreement and for retaining his money without any approval from the competent authority, the OPs have indulged into unfair trade practice for which the complainant has suffered financial loss and agony and therefore she has sought compensation by way of interest on the deposited amount and compensation for mental agony and financial loss due to deprivation of use and benefit of his agreed property and punitive damages, total being Rs.19.00 lacs.

2.             The OPs have denied the unfair trade practice on their part in the written statement filed by them and have further submitted that they have already filed suit for declaration regarding the agreement to sell before the Civil Court and notice has already been issued to the complainant. The complainant is not consumer as no plot number has been allotted till date and he is a prospective buyer. No ‘consumer-service provider’ relationship between the complainant and the OPs exist.  The complainant is stopped by her own act and conduct. The complainant has failed to pay the installments due within the period as per agreement.  No where in the agreement any date for handing over the possession has been mentioned. The OPs have not given any assurance to the complainant regarding date of possession of the said flat.  The possession will be handed over as and when the construction is complete.  The OPs have denied having received the legal notice and have 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-2.

4.             Evidence of the OPs consists of reply in the shape of affidavit of Jarnail Singh Bajwa, their 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.               Before going into the merits of the complaint it will be appropriate to address the preliminary objection raised by the OPs. As per the OPs the complainant is not a consumer within the meaning of Section 2 (1) (d) of the Act, as the complainant has only booked one BHK BR No.(1336)2536, F21, Mohali  Sector 74A-117 and, therefore, the complaint is not maintainable. In support of his contention while arguing on the issue the counsel for the OPs has relied upon two orders of the Hon’ble National Commission in Kamlesh  Gulati Vs. HUDA 2015 (2) CPR 640 and DDA & others 2015(2) CPR 640 and  Nirmala Devi Vs.Parveen Kumar & Others, 2015(1) CPR 454. As per counsel for the OPs a person who applies for allotment of a plot, will not be a consumer within the meaning of Section 2 (1) (d) of the Consumer Protection Act if neither any allotment is made to him nor he is registered for and awaiting such an allotment. Since the complainant has only booked the flat with the OPs and, therefore, is not a consumer. The plea of the OPs is contrary to the facts and evidence on record. The complainant has actually entered into an agreement to sell dated 30.04.2011 Ex.C-1 with the OPs and the said agreement duly signed is binding between the parties. In furtherance of the said agreement, the complainant has made part payment of Rs.6,25,000/- on 30.04.2011 of the agreed amount of sale consideration  with regard to the flat and the said amount has been duly received and acknowledged by the OPs. Thus the recitals of the agreement to sell dated 30.04.2011 clearly reveal that the complainant has been allotted specific flat Number by the OPs.  Thus, the complainant falls within the definition of consumer as defined under Section 2 (1) (d) of the CPA and the plea of the OPs is not maintainable.

7.             Now on merits, the facts of the complaint in hand. It is well settled law as has been held by the Hon’ble National Commission  in Kamal Sood Vs. DLF Universal Ltd., 2007 (2) CLT 440  that a builder/developer collecting money from the consumers without having proper and necessary sanctions in its favour from the competent authorities has indulged into unfair trade practice. The facts of the present complaint are squarely covered with the decision of the Hon’ble National Commission.  On the day of signing of buyers agreement Ex.C-1, the OPs are not even the owners of land in question for which they entered into an agreement to sell with the complainant. The third line of the buyers agreement state that the OPs have booked the said land from someone and are willing and ready to sell the same to the complainant. When a person who is not holding a good title in his own favour, he is prohibited under law to pass on the same to another person, being the purchaser of the same.  Once the OPs have failed to show the clear title in their own favour regarding the land on which they agreed to built the apartment and sell to the complainant, the OPs have indulged into unfair trade practice by signing the buyers agreement. The act of the OPs per se being an illegal act in executing the said buyers agreement, is an act of unfair trade practice on the part of the OPs. Further the grant of approval by GMADA vide memo dated 19.05.2014 as relied upon by the complainant in Para No.2 of his complaint is admitted by the OPs. The perusal of the same shows that the said permission has been granted by the authorities in favour of the OPs on 19.05.2014 whereas  the OPs have already entered into buyers agreement with the complainant on  30.04.2011 Ex.C-1 and in pursuance thereof have also accepted the part sale consideration on 30.04.2011. The perusal of Ex.C-2 i.e. letter dated 19.05.2014  shows that the OPs for the first time moved an application dated 05.07.2013 for grant of license of setting up of residential colony at Sector 117 and 74-A, SAS Nagar.  Thus, the OPs have taken the steps to seek the permission even after one year after collecting the money from the complainant under the agreement to sell Ex.C-1. The further delay   in this regard on the part of the OPs is an act of unfair trade practice which is a continuing cause of harassment and mental agony to the complainant. Thus, it is ample clear that on the day when the OPs entered into buyers agreement Ex.C-1 with the complainant, they were not having proper and necessary sanctions for development of land and raise the construction thereon. The act of the OPs without having proper and necessary sanctions in their favour on the day of signing of agreement to sell with the complainant is an act of unfair trade practice as has been held by Kamal Sood Vs. DLF Universal Ltd (supra). Since the OPs act of unfair trade practice has been amply proved by the complainant, the signing of buyers agreement without clear title in their favour by the OPs, collection of various amounts to the tune of Rs.6,25,000/- from the complainant without necessary sanctions, the complainant has certainly suffered financial loss and mental agony and harassment due to the acts of omission and commission of the OPs. Therefore, the complainant deserves to receive back his deposited amount alongwith interest @ 12% per annum w.e.f. from the dates of respective deposit till realisation. The counsel for the complainant has drawn our attention to order dated 29.07.2015 passed by this Forum in CC No.16 of 2015 titled as Varinder Kumar Gupta Vs. MD Bajwa Developers & another wherein this Forum has allowed the complaint against the OPs by issuing the directions to refund the deposited amount alongwith interest and lump sum compensation of Rs.50,000/- and state that the facts of the present complaint are squarely covered by the orders of this Forum as stated supra.  The OPs have not produced any contrary order on the issue.   The grant of said rate of interest on the deposited amount is in consonance with the orders passed by the Hon’ble Punjab state Consumer Disputes Redressal Commission in Brigadier B.S. Taunque (Retd.) & others Vs. M/s. Sangeetashree Builders & Developers International Private Limited & Others, 2014(2) CLT 401.

8.             The complaint, therefore, is allowed with the following directions to the Ops:

(a)    to refund to the complainant the total deposited amount of Rs.6,25,000/- (Rs. Six lacs twenty five  thousand only) with interest thereon @ 12% per annum from 30.04.2011 till actual refund.

(b)    to pay to the complainant  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.                           

December 07, 2015.     

                         (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

               Member