BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.347 of 2015
Date of institution: 17.07.2015
Date of Decision: 14.03.2016
Sujit Adhikari son of R.K. Adhikari resident of House No.3089/1, Sector 47-D, Chandigarh.
……..Complainant
Versus
1. M/s. Bajwa Developers Ltd. through its Managing Director having its registered office at SCO 17-18, Sunny Enclave, Desu Majra, Kharar, District SAS Nagar, Mohali, Punjab 140301.
2. Shri Jarnail Singh Bajwa, Managing Director son of Shri Bishan Singh, SCO 17-18, Sunny Enclave, Desu Majra, Kharar, District SAS Nagar, Mohali, Punjab 140301.
3. M/s. Aman and Company Pvt. Ltd. through Sh. Bhupinder Singh, Managing Director, HM 118, Opp. Rose Garden, Phase 3B1, SAS Nagar (Mohali).
4. Mr. Rajeev Awasthi, Store Incharge, Advance Trauma Centre, PGIMER, Sector 12, Chandigarh 160011.
………. 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: Ms. Rameet Bakshi, 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:
- Refund Rs.4,84,375/- with interest from the date of deposit till realisation.
- to pay an amount of Rs.1,00,000/- for mental harassment and deficiency in service.
- To pay Rs.33,000/- as costs of litigation.
The case of the complainant is that in February, 2012 he met OP No.4 to whom the complainant expressed desire to have house for self living. OP No.4 who was working with PGIMER showed him the area in Sunny Enclave, Sector 124, Mohali where a project proposed by OP No.1 and 2 namely ‘New Friends Enclave’ (a housing group of PGI & PU Employees) was to be developed. The complainant was assured by OP No.4 that CLU would be issued by the Govt. shortly and possession would be given within one year time. OP No.4 also took the complainant to OP No.3 who showed the complainant a Memorandum of Understanding dated 15.01.2012 executed between OP No.3 and OP No.1 for the sale of said plots. A copy of the MOU was also given to the complainant. It was also assured that the loan facility would also be available from certain banks. Thus allured by the commitments of the OPs, the complainant booked a residential plot measuring 125 sq. yards @ Rs.15,500/- per sq. yard in the aforesaid project by handing over a cheque dated 21.02.2012 for Rs.50,000/- as advance. Receipt dated 13.02.2012 of the cheque was issued by OP Nos.1 and 2. The total sale price of the plot was Rs.19,37,500/-. Payment schedule was also handed over to the complainant and complainant was orally assured that 75% amount of total price of the plot would be financed by the bank. The complainant further paid Rs.4,34,375/- to the OP No.4 cheque dated 06.04.2012 as balance payment in lieu of 25% of the total price of the plot. Thereafter agreement to sell of 125 sq. yard was given to the complainant in original by OP No.4 in the office of OP No.3. The agreement was signed by OP No.2 on behalf of OP No.1 and was witnessed by one Bhupinder Singh of OP No.3 on 10.04.2012. Receipt of total payment of Rs.4,84,375/- was acknowledged by the OPs on the backside of the agreement dated 10.04.2012. Most of the contents of the agreement were in Punjabi Language and the complaint cannot read Punjabi language. However, on the assurance of the OPs the complainant signed the agreement. At that time also the OPs assured that the possession of plot would be given within one year from the date of agreement to sell. However, after signing of the agreement, the complainant did not receive any communication from the OPs regarding progress of the project. The complainant contacted the OPs number of times and also visited their office to inquire about the details of the project and about permission for CLU for taking loan to pay the balance 75% payment of the plot but the efforts of the complainant went in vain. In June, 2013 OP No.3 handed over a document issued by the Department of Town and Country Planning Punjab to OP No.2 regarding Change of Land Use. The complainant was also informed that loan facility for this project is being given by State Bank of Patiala. The complainant applied for sanction of loan to State Bank of Patiala Sector 35-C Branch on 11.06.2013. In the meantime the complainant asked one of his friends to read the terms and conditions of the agreement dated 10.04.2012 which were in Punjabi, the complainant was shocked to know that the said agreement did not mention the date of giving the possession of the plot. After two and half years, the OP No.1 informed the complainant that draw of plots was being held on 19.10.2014 at their office. In the draw of plots, plot No.222 was allotted to the complainant. Thereafter the complainant visited the site of the plot but found that no development work regarding basic amenities had started and the land was lying vacant. There was no road to reach the site. On enquiry, the OPs assured that the development would start soon and the plots would be handed over within 2-3 months and the loan would be sanctioned soon. After that the complainant went to the bank for inquiring about loan but the officials of the bank informed him that the group loan for New Friends Enclave is scrapped. Feeling harassed, the complainant vide letters dated 05.02.2015 and 11.03.2015 requested the OPs to refund his amount. As per the information received under RTI by counsel for the complainant, the OPs have not been issued any license to set up the colony in the name of New Friends Enclave in Sector 124 SAS Nagar by PUDA/GMADA. With these allegations the complainant has filed the present complaint.
2. The OPs in the preliminary objections of their written statement have pleaded that the OPs have already filed suit for declaration regarding cancellation of agreement to sell. As such the present complaint is liable to be dismissed. This Forum does not have the pecuniary jurisdiction to try the complaint. There is no Consumer Service Provider relationship between the complainant and the OP. The complainant is not consumer of the OPs. The complainant has failed to pay the installments within stipulated period. The complainant was aware of the fact that the approvals for the project are yet to be taken and even in the schedule of payment Ex.C-4 it was clearly mentioned that next installment is to be paid after CLU. OP No.3 and 4 approached OP No.1 and 2 for getting the plots in bulk and MOU was signed. The complainant entered into buyers agreement with OP No.1 and agreed to pay the amount of Rs.19,37,500/- in four installments as per agreement and last installment of 10% was to be taken at the time of registry/possession which was not given for the reason that the complainant was made aware that the booking is in future project. On merits, it is pleaded that the complainant was made aware that the CLU would be issued by the Govt. in due course of time. Thus, denying any deficiency in service or unfair trade on their part, the OPs have sought dismissal of the complaint.
3. To succeed in the complaint, the complainants proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-14 and application Mark-A.
4. Evidence of the OPs consist of affidavit of J.S. Bajwa Ex.OP-1/1 and order of the Civil Judge Sr. Division, Kharar Mark-A.
5. We have heard learned counsel for the parties and gone through the written arguments filed by them.
6. It is admitted that the complainant has booked residential plot measuring 125 sq. yard @ Rs.15,500/- per sq. yards in the ‘New Friends Enclave’ Sector 124, Mohali. The Memorandum of understand Ex.C-1 was executed between the parties on 15.01.2012. The total consideration for the plot was agreed as Rs.19,37,500/-. The complainant paid to the OPs advance payment for plot to the tune of Rs.50,000/- vide receipt dated 13.02.2012 Ex.C-2. As per the payment schedule Ex.C-3 25% payment was to be paid within 45 days of registration and 75% payment was to be paid in four installments. Thereafter agreement to sell Ex.C-4 was executed on 10.04.2012. As per the receipt attached with agreement to sell ex.C-4, as on 06.04.2012 the total paid a total sum of Rs.4,84,375/- to the OPs. Further as per terms of agreement, the sale deed of the flat was to be done upon the full and final payment by the complainant. For remaining amount, the complainant wanted to avail the loan from the bank and, therefore, he approached State Bank of Patiala, Sector 35-C, Chandigarh for loan. Thereafter the bank officials informed the complainant that the loan facility for the project in question i.e. New Friends Enclave, Kharar has been scrapped. The complainant enquired from the OPs about the status of the project but no satisfactory response was given to him. The complainant also visited the site and found that there is no development as is evident from photographs Ex.C-5 (colly). The complainant has produced document Ex.C-6 i.e. Change of Land Use for residential colony by the OPs. The permission for Change of Land Use was given by the Govt. vide letter dated 07.06.2013 which was in response to letter dated 03.06.2013 of the OPs whereas the OPs have received the payment against the project in question from the complainant in April, 2012. 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-4, the OPs are not even the owners of land in question for which they entered into an agreement to sell with the complainant. The perusal 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 sell the plot 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 as per the information received under Right to Information Act by counsel for the complainant vide letter dated 19.01.2015 Ex.C-13 from the GMADA, it is clearly mentioned that no license was given to the OPs for construction of New Friends Enclave in Sector 124, SAS Nagar. Thus, it is ample clear that on the day when the OPs entered into buyers agreement Ex.C-4 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.4,84,375/- 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 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.
7. The complaint, therefore, is allowed with the following directions to the Ops:
(a) to refund to the complainant the total deposited amount of Rs.4,84,375/- (Rs. Four lacs eighty four thousand three hundred seventy five only) with interest thereon @ 12% per annum from the respective dates of deposit 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.
March 14, 2016. (Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
