BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.201 of 2015

                                 Date of institution:            05.05.2015

                                                        Date of Decision:            09.11.2015

Mrs. Sneh Latta wife of Bharat Bhushan Verma, resident of Near Sarafa Bazaar, Bassi Pathana, District Fatehgarh Sahib.

    ……..Complainant

                                        Versus

M/s. Bajwa Developers Limited through its Managing Director Jarnail Singh Bajwa son of Bishan Singh, Sunny Enclave, Desumajra, Tehsil Kharar, District SAS Nagar (Mohali).

………. 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:     Ms. Jaspreet Kaur Somal, counsel for the complainant.

                Shri Kulwinder Singh, counsel for the OP.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following directions to the Opposite Party (for short ‘the OP’) to:

(a)    refund her the principal amount of Rs.3,80,000/- with interest @ 18% per annum from the day of deposit.

(b)    pay her Rs.2,00,000/- as compensation for physical harassment and mental agony.

(c)    pay him Rs.20,000/- as litigation charges.

                The case of the complainant is that she entered into an agreement with the OP for purchase of 1 BHK BR. No.(598): 1498 of 450 sq. ft. in F-21, Sector 74-A, 177, Mohali for sale consideration of Rs.12.00 lacs. The complainant paid Rs.30,000/- as transfer fee and Rs.1,87,500/- against the sale consideration of the flat on 22.04.2011. The complainant also deposited Rs.1,62,500/-  on 09.05.2011. The biana was executed on 13.05.2011. The remaining amount was to be paid to the OP in 18 months @ Rs.1,87,800/- with gap of four months per installment. The OP made the promise to built the project in 18 months. However, no construction activity has been started till date, no infrastructure development has been made at the project site. The OP is using the funds of the complainant for other profitable business and earning profits which amounts to unfair trade practice. With these allegations the complainant has filed the present complaint.

2.             The OP in its written statement has pleaded that this Forum has no jurisdiction to try the present complaint as the transaction between the complainant and OP is purely sale agreement of plot. The complainant is defaulter in making payment of installments. The complainant herself agreedto pay the installments due within stipulated period which she has failed to do.  Hence the agreement has become void and now the complainant cannot take U turn. There is no Consumer Service Provider   relationship between the complainant and the OP. The complainant is not consumer.  On merits also the OP has pleaded that the complainant had failed to pay the installments as per agreements. In the agreement no date is mentioned regarding handing over the possession.  The complainant was also not given any assurance regarding the possession. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint against it.

3.             To succeed in the complaint, the complainant tendered in evidence affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-11.

4.             Evidence of the OP consists of affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.

5.             We have heard learned counsel for the parties and have also gone through the written arguments submitted by them.

6.             The complainant booked 1 BHK BR. No.(598): 1498 of 450 sq. ft. in F-21, Sector 74-A, 177, Mohali for sale consideration of Rs.12.00 lacs vide agreement to sell Ex.C-1. The complainant claims to have purchased the flat from some dealer namely Munish Kumar son of Surinder Kumar and paid him Rs.30,000/- as transfer fee. Perusal of the file shows that neither the complainant has impleaded Shri Munish Kumar as necessary party in the arrays of the OP nor has produced any receipt to show the payment of Rs.30,000/-. So the bald assertion regarding payment of Rs.30,000/- to  one Shri Munish Kumar is of no help to the complainant.

7.             So far payment of Rs.3,40,000/- on various dates in pursuance of the agreement to sell dated 13.05.2011 Ex.C-1 is concerned, it is ample evident from the overleaf of Page-1 of the agreement Ex.C-1, wherein the OP has given the receipts of payment of Rs.3,40,000/- i.e. Rs.37,500/-, Rs.1,50,000/- and Rs.1,62,500/-, total being Rs.3,40,000/-. The perusal of payment and receipts and the payment due details as mentioned on Page-2 of the agreement to sell clearly shows that the complainant has made the payment of biana plus one installment due on 12.09.2011. The rest of the payment was to be made by the complainant from 12.01.2012 to 12.11.2012 in installments. As per Clause-4 of the agreement Ex.C-1 once the buyer makes all the payments as per the schedule, the OP was to get the sale deed registered within 10 days thereafter, meaning thereby the OP has taken an obligation upon itself to get the sale deed registered 10 days after final payment on 12.11.2012.  The plea of the OP that no time frame for giving the possession  is totally contrary to the factual position as per Clause-4 of the agreement to sell.  The OP though has admitted having received Rs.3,50,000/- in its reply yet the evidence i.e. receipts issued by the OP on the overleaf of agreement Ex.C-1 shows that the OP has received Rs.3,40,000/- from the complainant as on 09.05.2011.  Thus, contrary to the evidence on record no benefit of Rs.10,000/- can be granted to the complainant on wrong admission of the OP.  The complainant has not paid the balance installments starting from 12.09.2011 till 12.11.2012 for the reasons as the OP has failed to show any development at site and also failed to provide any sanctioned plan, approvals etc. as till date no construction activity has been started. Thus, the OP has indulged into unfair trade practice by collecting the amount from the complainant and not making any development at site or raising any construction for the flat in question.  Even now the OP has failed to produce any approvals and sanctions from the competent authorities in its favour for development of the construction of the flat in question which clearly shows that the OP has nothing in hand even to give the possession of the flat in question to the complainant in future.

8.             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. 

9.             Further on the day of signing of buyers agreement Ex.C-1, the OP was not even the owner of land in question for which it entered into an agreement to sell with the complainant. The third line of the buyers agreement state that the OP has booked the said land from someone and is 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. 

10.            Thus, it is ample clear from record that the OP has collected the money from the complainant illegally and retained the same despite having served the legal notice dated 07.08.2014 sent by the complainant by registered post, has not refunded the deposited amount to the complainant till date and, therefore, the OP has indulged into unfair trade practice and deficiency in service.

11.            The act of the OP being an act of unfair trade practice and deficiency in service i.e. withholding the amount of Rs.3,40,000/- has certainly caused financial loss and mental agony to the complainant. Therefore, the complainant deserves to receive back her deposited amount alongwith interest @ 12% per annum with effect 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.

12.            The complaint, therefore, is allowed with the following directions to the OP:

(a)    to refund to the complainant the total deposited amount of Rs.3,40,000/- (Rs. Three lacs forty thousand only) with interest thereon @ 12% per annum from the respective dates of deposit till actual realisation. 

(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.                           

November 09, 2015.     

                                   (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                        Member