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

                                  Consumer Complaint No.137 of 2015

                                 Date of institution:          01.04.2015

                                              Date of Decision:            02.09.2015

1.     Subroto Biswas son of Sunirmal Biswas, resident of 2053, Sector 45-C, Chandigarh.

2.     Suparna Biswas w/o Subroto Biswas, resident of 2053, Sector 45-C, Chandigarh.

                                     ……..Complainants

                                        Versus

M/s. Bajwas Developers Limited, Regd. Office Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali through its Managing Director/Authorised representative.

                                                                ………. 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:    Shri Sandeep Bhardwaj, counsel for the complainants.

Shri Kulwinder Singh, counsel for the OP.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainants have filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:

(a)    refund them Rs.4,43,000/- alongwith interest @ 18% from the date of deposit till realisation.

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

(c)    pay them Rs.50,000/- as costs of litigation.

                The case of the complainants as pleaded in the complaint is that they have availed the services of the OP and hence are consumers. The OP carries on the business of building, developing housing project and further sale of developed plots in Sunny Enclave, E23, Sunny Enclave-2, Aujla, Tehsil Kharar District Mohali. The site being suitable to the complainants being closer to Jamuna Apartments and NRI Society, the complainants have booked one plot No.505 measuring 138.89 sq. yards situated in Sunny Enclave, E23, Sunny Enclave-2, Aujla by paying Rs.4,43,000/- and an agreement dated 03.01.2012 was executed between the parties.  The cost of the flat was Rs.17,72,000/-. At that time the OP informed the complainant that it is in possession of all necessary permissions and approvals of the land. The complainants were to take loan from the bank and for this they requested to the OP to provide copy of approval of site plan which was required for the purpose of processing of loan.  The OP did not provide the complainants site plan and kept on extending the dates. Initially the time was extended on 07.04.2012 to 02.05.2012 and lastly the time was extended by the OP upto 20.04.2014. Therefore, upto 20.04.2014 the complainant was never a willful defaulter in making the payment of agreed amount as per installment schedule mentioned in agreement Ex.C-1.  The complainants visited the site in May, 2014 and the site engineer Kulwinder Singh informed them that the site initially chosen by the complainants has been cancelled and the OP has shown a different site to the complainants for allotment of plot in lieu of the initial which was far away from the earlier chosen site by the complainants and the alternate site offered by the OP being not acceptable to the complainant, therefore,  the complainants sought refund the amount and accordingly submitted application in this regard but no reply was given to it. The complainants also sent e-mail dated 07.02.2015 which has also not been responded. The complainants approached the OP number of times but till date no refund has been made to them. Further, as per the complainants the OP is governed under the provision of PAPRA Act and the same has been violated by the OP as it has allured the complainants to purchase the plot without getting necessary approvals and sanctions in its favour from the competent authorities and further received more than 25% of the total agreed consideration without entering into an agreement with the complainant. The OP has initially collected the money from the complainant without any approvals from the competent authority in its favour and then altered the site of the plot from one location to another without his consent and now retained the deposited amount  till date despite receiving the request for refund of the complainants has indulged into and unfair trade practice and has failed to provide proper and effective services, thus rendered deficient services to the complainant and further indulged into unfair trade practice.

 2.            Upon notice, the OP appeared and filed reply in which it took preliminary objections that this Forum does not have pecuniary jurisdiction to entertain the complaint as the sale agreement of the plot is for total sale consideration of Rs.17,72,000/-.  At the time of booking of the plot, the complainants were aware that the approval are yet to be taken and now the OP has got the approval on 07.08.2014 but the complainants failed to deposit any of the installment and requested for extension of time for payment.  As per clause-3 of the agreement if the purchaser failed to deposit the agreed amount within 15 days the deposited amount is liable to be forfeited.  Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.

3.             To succeed in the complaint, the complainants proved on record affidavits Ex.CW-1/1, Ex.CW-2/1, Ex.CW-2/2 and tendered in evidence documents Ex.C-1 to C-2.

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

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

6.             It has been alleged in the complaint that the complainants have applied for one plot with the OP in the year 2012 and executed agreement to sell dated 03.01.2012.  As per the buyers agreement Ex.C-1 plot No.505 measuring 138.89 sq. yard @ Rs.12,750/- including EDC charges with the total consideration of Rs.17,72,000/-  situated in Sunny Enclave E-23, Sunny Enclave-II Village Aujla. The complainant has paid a total sum of Rs.4,43,000/- from 04.12.2011 to 10.01.2012 as per receipt mentioned on the overleaf of Ex.C-1. As per agreement remaining 25% was to be paid on 03.04.2012, another installment of 25% on 03.06.2012 and another installment i.e. the final installment of 25% on 03.07.2012. After making the first payment of 25%, the complainants approached the OP to seek copy of the sanctioned plan and approval so as to enable them to raise loan from the financial institution for making balance payment of the agreed amount. The OP has failed to provide them the sanctioned plan and rather have been giving extensions for payment of the remaining amount, the last extension having been given upto 20.04.2014 as is evident from the inscription made on the body of Ex.C-1. Thus the payment of remaining amount by the complainants upto 20.04.2014 is not willful but as per the agreed extension given by the OP. A plea has been taken by the OP that the complainants have been defaulter in making payment of further installments and, therefore, the amount deposited is not refundable to the complainants.

7.             The disputed question remains to be determined is whether the OP can retain the deposited amount in the event when it itself has given extension of time in deposit of the installments due to non availability of sanctions and approvals in its favour by the competent authority. It is proved on record that the OP has received the approval of proposed lay out plan of Aujla-II Sunny Enclave from the competent authority on 07.08.2014 which clearly shows that at the time of entering into agreement with the complainant on 03.01.2012 the lay out plan was not approved by the competent authority and even after entering into agreement the OP has given the extension to the complainant for making further payment as it was not having approval in its favour till 07.08.2014.  Besides this document, the OP has failed to show the issuance of developers’ license in its favour from the competent authority, no NOC from the Pollution Control Board, no CLU in its favour from the competent authority to develop the site and sale the plot has been placed on record by the OP. Thus, the sole document i.e. lay out plan Ex.OP-1 dated 07.08.2014 clearly shows that on the day of agreement the OP was not having the approved layout plan and, therefore, the same could not have been shown to the complainant. Further as per PAPRA Act Section 4 (1) no promoter shall issue any advertisement/prospectus, offering for sale of any apartment or plot or to take advances or deposit unless the promoter hold a certificate of registration as required under sub section 2 Section 21 of the PAPRA Act, a copy of the advertisement should be available for inspection at the office of the promoter. No such advertisement has been placed on record to show compliance of the PAPRA Act.

8.             Therefore, the OP has accepted the application and the money from the complainants without complying with various provisions of PAPRA Act which amounts to unfair trade practice on its part. Therefore, in the complaint in hand, the OP has not obtained the clearances from all channels to sell the property and the complainant in the absence of any approvals having been shown to the complainant, the complainant could not have given the consent of purchase of this plot.

9.             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 OP was not even the owner of land in question for which it entered into an agreement to sell with the complainants. The third line of the buyers agreement state that the OP have booked the said land from someone and is willing and ready to sell the same to the complainants. 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.           Therefore, the OP has indulged into unfair trade practice by collecting money from the complainants without having proper sanctions in its favour and retaining the same till date despite having received the request for refund from the complainants is an act of unfair trade practice having been indulged by the OP which is writ large on its part and has been duly proved on record by the complainants. The act of the OP, therefore, in withholding the amount of Rs.4,43,000/- has certainly caused financial loss and mental agony to the complainants. Therefore, the complainants deserve to receive back their 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.

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

(a)    to refund to the complainant the total deposited amount of Rs.4,43,000/- (Rs. Four lacs forty  three 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.                           

September 02, 2015.    

                          (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

               Member