BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.633 of 2015
Date of institution: 24.11.2015
Date of Decision: 09.06.2016
Sahib Singh son of late Hari Singh, resident of House No.2205/2, Sector 37-C, Chandigarh.
……..Complainant
Versus
M/s. Bajwa Developers Limited, Sunny Enclave, Desu Majra, Kharar, through its Managing Director.
………. Opposite Party
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: 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.5,81,250/- alongwith interest @ 24% per annum from 24.04.2012 till realisation.
(b) pay him compensation of Rs.1,00,000/- for unnecessary harassment, mental tension, agony and other sufferings.
(c) pay him Rs.25,000/- as costs of litigation.
The case of the complainant is that allured by the scheme of the OP, he booked one plot measuring 150 sq. yards with the OP vide registration form dated 02.03.2012 and paid to the Rs.50,000/- vide cheque dated 06.03.2012 receipt dated 05.03.2012 thereof was issued by the OP. As per the payment schedule, the complainant further deposited Rs.5,31,250/- vide cheque dated 24.04.2012 being the first installment by raising loan from State Bank of India, Sector 12, Chandigarh. Thereafter, the complainant came to know that the OP had launched the scheme without project approval as Change of Land Use for residential colony was not obtained by the OP from PUDA. The complainant kept on visiting the OP to know the status of project but in vain. As the complainant was not given any satisfactory reply by the OP, he requested it to refund the deposited amount. The complainant also served a legal notice dated 11.09.2015 seeking refund of the amount but till date no refund has been made to him. As a counter blast, the OP has filed a suit for declaration in the Civil Court at Kharar that the alleged agreement dated 23.04.2012 stands cancelled due to nonpayment of installments. This agreement was never signed by the complainant. Thus, the complainant has pleaded that non refund of the amount is an act of deficiency in service on the part of the OP. Hence, the complainant has filed the present complaint.
2. Upon notice, the OP appeared and filed reply in which it took preliminary objections that this Forum does not have the jurisdiction to try the complaint as the sale consideration of the plot is Rs.23,25,000/- and the complainant has failed to deposit further installments as per agreement. The complainant is stopped by his own act and conduct and is not competent to file the present complaint. The complainant himself agreed to pay the installments due within stipulated period as per agreement. However, the complainant has failed to pay the installments as per the agreement. As per Clause 3 of the agreement, the amount of earnest money is liable to be forfeited in case the purchaser failed to deposit the agreed amount within 15 days from the due date. There is no consumer-service provider relationship between the complainant and the OP. The OP got all the approvals and license to develop colony from GMADA on 05.11.2014 but the complainant who got the plot for speculative purpose and want to sell the plot at premium found that he is not fetching good price in the open market and filed the present complaint for getting refund. On merits, the OP has denied the averments of the complainant and sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavits Ex.CW-1/1 and Ex.CW-1/2 and tendered in evidence documents Ex.C-1 to C-4.
4. Evidence of the OP consists of affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.
5. We have heard the complainant and learned counsel for the OP and have also gone through written arguments filed by them.
6. The complainant had booked one plot measuring 150 sq. yards in New Friends Enclave, Sector 124, Sunny Enclave, Kharar by paying Rs. 50,000/- vide cheque No.812118 dated 06.03.2012 which was acknowledged by the OP vide receipt dated 05.03.2012 Ex.C-1. As per the payment schedule, the complainant further deposited Rs.5,31,250/- vide cheque No.812123 dated 24.04.2012 Ex.C-2. The complainant has paid to the OP a total sum of Rs.5,81,250/- upto 24.04.2012. Thereafter, it came to the notice of the complainant that the OP does not have necessary sanctions and approvals in its favour. The OP has launched the scheme without obtaining necessary sanctions and approvals from the competent authorities. This act of the OP amounts to indulging into unfair trade practice as the complainant has been deprived of the use and benefit of his deposited amount and non delivery of possession by the OP within the stipulated agreed time.
7. The disputed question remains to be determined is whether the OP can retain the deposited amount due to non availability of sanctions and approvals in its favour by the competent authority. The OP was to obtain the necessary permission from the concerned authorities before development of the project. Undisputedly the OP was not having proper sanctions and approvals in its favour on the date when it received the payments from the complainant towards the booking and first installment of the plot. 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.
8. Therefore, the OP has indulged into unfair trade practice by collecting money from the complainant without having proper sanctions in its favour and retaining the same till date which is writ large on its part and has been duly proved on record by the complainant. The act of the OP, therefore, in withholding the amount of Rs.5,81,250/- has certainly caused financial loss and mental agony to the complainant. While raising his pleas, the complainant has relied upon decision of Hon’ble State Consumer Disputes Redressal Commission Punjab in First Appeal No.1097 of 2015 titled as M/s. Bajwa Developers Ltd. Vs. Pardeep Verma decided on 08.02.2016. The facts of the present complaint squarely covered by the above decision, so relied upon by the complainant. The counsel for the OP has not brought any contrary law/order on this point.
9. Therefore, the complaint deserves to be allowed by issuing appropriate directions to the OP to refund the deposited amount alongwith interest @ 18% per annum from the dates of deposit till the payment is made. For grant of interest on the deposited amount as well as costs of litigation and compensation, we rely upon the latest decision of the Hon’ble National Commission rendered in case titled as Ms. Krishna Malhotra Vs. Bajwa Developers Ltd., in Revision Petition No.2403 of 2015 decided on 06.04.2016.
10. The complaint, therefore, is allowed with the following directions to the OP:
(a) to refund to the complainant the total deposited amount of Rs.5,81,250/- (Rs. Five lacs eighty one thousand two hundred fifty only) with interest thereon @ 18% per annum from the respective dates of deposit till actual payment.
(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.
June 09, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
