Chandigarh

DF-II

CC/408/2021

Suman Bhandari - Complainant(s)

Versus

M/s Bajwa Developers Ltd. - Opp.Party(s)

Atul Goyal

10 Jan 2024

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	408 of 2021
Date  of  Institution	:	29.06.2021
Date   of   Decision	:	10.01.2024

 

 

 

 

1] Suman Bhandari W/o Sh. Mohan Lal Bhandari

2] Mohan Lal Bhandari S/o Sh. Gurdass Ram Bhandari,

Both residents of Flat No. 2265, Sector 47-C, Chandigarh.

.... Complainants

VERSUS

1] M/s. Bajwa Developers Limited, Through its Managing Director, Jarnail Singh Bajwa, having its Office at SCO No.17-18, Sunny Enclave, Desumajra, Tehsil: Kharar, SAS Nagar, Mohali-140 301. Email Id:- jsbajwadevelopers@yahoo.com.

2] M/s Omega Infra Estates Private Limited, through its Director Amritpal Singh, having its office at B-154, Sunny Enclave, Kharar (Pb.) Email id:- amrit2833@gmail.com.

.....Opposite Parties

 

BEFORE:      MR.AMRINDER SINGH SIDHU,  PRESIDENT

                            MR.B.M.SHARMA             MEMBER

 

Present:-       Sh.Atul Goyal,  Counsel for the complainant along    with complainant

                Proxy  Counsel for OP No.1

                Sh.Amit Jindal, Counsel for OP No.2.

 

ORDER BY AMRINDER SINGH SIDHU, M.A (Eng.), LLM, PRESIDENT

 

1]       The complainants have filed the present complaint pleading that in order to fulfill the dream of having independent house, the complainant agreed to purchase a plot bearing No.213 measuring 250 sq. yards in the year 2012 and entered into an agreement to sell to this effect with OP No.1. The complainants paid Rs.27,51,500/- to OP No.1 and Rs.9,50,000/- to the OP No.2, totaling Rs.31,01,500/-. Subsequently, the OPs expressed their inability to execute the sale deed qua the plot in question and offered another plot bearing No.849 measuring 250s q. yards for Rs.38.75 lacs and execute the new agreement to sell dated 26.04.2014 (Ann.C-1) and took back the earlier original agreement to sell along with the documents qua the plot No.213. OP No.1 acknowledged the receipt of Rs.27,51,500/- on the back of the agreement to sell. It has been averred that OP No.2 issued certain undated hand written receipts containing calculations whereby the payment of Rs.9,50,000/- (Rs.4,50,000/-, received in the name of Sh.Chander Mohan  plus Rs.5,00,000/-) is acknowledged (Annexure C-4). It has further been averred as per the agreement to sell dated 26.04.2014, the payment was to be made in four installments as shown in para No.8 of the complaint.  It has further been stated that the area where the plot was allotted, has been reduced to 225 sq. yards instead of 250 sq. yards and despite repeated requests, they failed to rectify the reduction made in the area and execute the sale deed in favour complainant No.1 despite receipt of the huge amount and also failed to deliver the possession thereof.  It has further been stated that now the complainants have lost faith upon the OPs and wants to get the deposited amount with interest. Hence, this complaint has been filed by the complainants against the OPs seeking directions to the OPs to refund of the deposited amount along with interest, compensation for mental agony and harassment, litigation expenses.

 

2]       After service of notice, OP No.1 appeared before this Commission and filed written version stating therein that the complaint is liable to be dismissed as the complainant has breached the terms and conditions of the agreement. It has further been stated that the complainants even as per their admission have partially paid the consideration amount and moreover all the payments were made to OP No.2 and OP No.1 has  not received any payment in its accounts.  It has further been stated that the complainants remained silent for 11 years and as such the complaint is liable to be dismissed. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, OP No.1 prayed for dismissal of the complaint.

        The OP No.2 also appeared and filed its written version stating therein that the complaint qua the dead person i.e. Sh.Amritpal Singh is not maintainable and OP No.1 is a separate and distinct legal entity different and separate from OP No.2 and there is no business association between OPs No.1 and 2. It has further been stated that at no point of time and on any occasion, OP NO.2 ever received payment of Rs.4,50,000/- in the name of Chander Mohan and it is a well thought out strategy of the complainants to create false evidence in their favour. It has further been stated that the RTS of Rs.5.00 lakh by the complainants in the account of OP No.2 in the year 2012 must have been in relation to some other business deal and transaction with late Sh.Amritpal Singh, the then MD of OP No.2. There is no explanation coming forward from the complainants as to and in which capacity the amount of Rs.9,50,000/- was ever paid to OP NO.2 though OP NO.2 denies the receipt of the same. The plot was sold by OP No.1, land was theirs, they were the owners in possession, in which capacity services of OP No.2 was taken and absolutely no explanation or averment explaining the factum of same has been pleaded in the complaint. It has further been stated that the stand of the complainants is that they entered into an agreement to sell with OP No.1 in the year 2012 but in payment entries, on page 21 of paper book two payments were made two years prior to the agreement in the year 2010 i.e. Rs.6000/- and Rs.9,69,000/- both on 06.12.2010 have been made to OP No.1 by the complainants.  It has further been stated that non-mentioning of previous execution of the agreement to sell in the second agreement to sell executed between the complainants and OP No.1 in the year 2014 about the payment to OP No.2 or about the role of OP No.2 in the whole deal does not appeal to the common sense. The remaining allegations have been denied, being false. Lastly, OP No.2 prayed for dismissal of the complaint.

 

3]       The complainants filed replication controverting the stand of the OPs made in their reply.

 

4]       Parties led evidence in support of their contentions.

5]       We have heard the ld.Counsel for the contesting parties and have gone through the documents on record including written submissions.

6]       From the submissions of the parties and the documentary evidence especially the Agreement to Sell dated 26.04.2014 placed on record as Annexure C-1, it is observed that OP No.1 company had agreed to sell the subject plot i.e. Plot No.849 measuring 250 measuring to the complainants  for total sale consideration of Rs.38,75,000/-. It is also observed from the Agreement to Sell dated 26.04.2014 that out of the total sale consideration, OP No.1 had received a sum of Rs.27,51,500/-  qua the plot in question from the complainants. It is relevant to mention here that OP No.1 has not only failed to deliver the possession of the plot in question to the complainants despite receipt of the substantial amount from them but also failed to refund the deposited amount to the complainants despite their repeated requests which itself amounts to deficiency in service as also unfair trade practice on the part of OP No.1.

7]       The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastructure vs. Trevor’D Lima, decided on 12.3.2018  has held as under:-

    “15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there  was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”

        Further, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed as under:-

    “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

         The Hon’ble National Commission, New Delhi in First Appeals bearing No.557 and 683 of 2003 titled as “Kamal Sood Vs. DLF Universal Ltd.” decided on 20.04.2007 has observed as under:- 

“It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/ apartments, invites offers and collects money from the buyers. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer”.

 

8]       Keeping in view the facts and circumstances of the case, we are of the considered view that the complainants cannot be made to wait for an indefinite period and OP No.1 who failed to deliver the possession of the subject plot within the a reasonable period to the complainants has no right to retain the hard earned money of the complainants. Thus, the complainants cannot be made to wait indefinitely for the possession of the unit allotted to them  and the complainants are entitled to seek the refund of the amount paid along with interest.

 

9]      As regards the complainant’s claim of paying Rs.9.50 lacs to OP No.2 is concerned, it is observed that the payment of Rs.4,50,000/- in the name of Chander Mohan and Rs.5 lacs in the account of OP No.2 has been well proved from Bank Statement placed on record as Ann.C-2 & C-3 as well as the messages exchanged between the complainants and OP No.2. Therefore, the OP No.2 is liable to refund the said amount of Rs.9.50 lacs to the complainants.

 

10]      In the light of above observations, the present complaint deserves to succeed against the OP No.1 & 2.  Accordingly, the present complaint is partly allowed against OP No.1 & 2 as under:-

 

a)  The OP No.1 is directed to refund to the complainants the deposited amount of Rs.27,51,500/- along with interest @10% per annum from the respective dates of its deposit, as mentioned in the agreement (Ann.C-1 Pg.21) till the date of its actual payment to the complainants.

 

b)  The OP No.2 is directed to refund to the complainants the deposited amount of Rs.9,50,000/- along with interest @10% per annum from the respective dates of its deposit till the date of its actual payment to the complainants.

 

        The above said order shall be complied with by the OPs within a period of 90 days from the date of receipt of copy of this order.

 

11]      The pending application(s) if any, stands disposed of accordingly.

        The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.

Announced

10.01.2024                                                                    

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER