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

                                  Consumer Complaint No.673 of 2015

                                                Date of institution:  14.12.2015                                         Date of decision   :  13.10.2016

Swaranjit Kaur daughter of Sarabjit Singh, resident of 328, Smaadhi Gate, Mani Majra, U.T.

                                  ……..Complainant

                                        Versus

1.     M/s. Bajwa Developers Limited, Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali, Punjab – (Through its Managing Director Shri Jarnail Singh Bajwa).

2.     Shri Jarnail Singh Bajwa son of Shri Bishan Singh, Managing Director of M/s. Bajwa Developers Limited, Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali, (Punjab).

                                                           ………. Opposite Parties

Complaints under Sections 12 to 14

of the Consumer Protection Act

Quorum

Shri Ajit Pal Singh Rajput, President                 

Mrs. R.K. Aulakh, Member.

Present:    Shri Ashok Sharma, counsel for the complainant.

                Shri Kulwinder Singh, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainant, Swaranjit Kaur daughter of Sarabjit Singh, resident of 328, Smaadhi Gate, Mani Majra, U.T.  has filed the present complaint  against the Opposite Parties (hereinafter referred to as the OPs) under Sections 12 to 14 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.             The complainant had entered into agreement to sell  dated 19.08.2011  with the OPs for purchase of flat 1 BHK Flat BR No.1524 in village F21, Mohali, Sector 74-A, 117 measuring 450 sq. ft. for a total sale consideration of Rs.12,00,150/-. The complainant at that time paid Rs.3,00,000/- to the OPs as earnest money.  At the time of agreement, the OPs assured the complainant to pay the remaining amount in installments by 21.11.2012 and thereafter the possession of the flat was to be delivered and sale deed was to be executed in favour of the complainant. Thereafter, the complainant visited the site many times but found that there was no development at the site. Due to non commencement of development, the OPs orally extended the agreement to sell several times. Ultimately, the complainant requested the OPs to refund the amount but OPs have been lingering on the matter.  However, in July, 2015 the OPs have flatly refused to refund the amount to the complainant.  The complainant had earlier filed an application before the Permanent Lok Adalat but the OPs took technical and legal objection that they had already filed a civil suit and due to this the complainant had withdrawn that application with permission to file the same in the compete court of law. Thus, the complainant has filed the present complaint for giving directions to the OPs to refund the deposited amount of Rs.3,00,000/- alongwith interest @ 18% per annum w.e.f. 19.08.2011; compensation of Rs.5,00,000/- for mental and physical harassment and Rs.50,000/- as litigation expenses.

3.             The complaint is contested by the OPs by filing reply, in which they had raised certain preliminary objections, inter alia, that the OPs have already filed suit for declaration regarding agreement to sell before the civil courts and notice has been issued to the complainant, hence present complaint deserves to be dismissed. This Forum has no jurisdiction to entertain and try the complaint as the complainant had withdrawn the earlier complaint filed before the Permanent Lok Adalat. As per Legal Services Authority Act 22-C (2) after an application is made under sub section (1) to the Permanent Lok Adalat no party to that application shall invoke jurisdiction of any court in the same dispute. In the present case civil suit was already filed by the OPs in the civil court and the complainant had filed application before the Permanent Lok Adalat thus the present complaint cannot be taken up before this Forum. The complainant has committed default in payment of installments and as per Clause 3 of the agreement the amount deposited by the complainant is liable to be forfeited.  The complainant was well aware that approval of the project was under process and it will take time for getting the approval and possession of the flat.   On merits, the OPs have denied the averments and prayed for dismissal of the complaints.

4.             In order to prove the case, the complainant tendered in evidence her affidavit Ex. CW-1/1; copies of agreement to sell dated 19.08.2011 Ex.C-1; legal notice dated 07.08.2015 Ex.C-2; certified copy of application moved by the OPs before PLA, Mohali Ex.C-3; certified copy of order dated 01.12.2015 Ex.C-4; certified copy of application before PLA, Mohali Ex.C-5; statement of counsel for the complainant dated 01.12.2015 before PLA, Mohali Ex.C-6; information sought under RTI Ex.C-7 and certified copy of postal receipt Ex.C-8.  In rebuttal, the OPs tendered in evidence affidavit of Jarnail Singh Bajwa, their MD Ex.OP-1/1.

5.             It has been argued by learned counsel for the complainant that 1 BHK BR Flat No. 1524 at F21 Mohali, Sector 74-A, 117 Mohali having covered area of 450 sq. ft.  was allotted to the complainant at a sale consideration of Rs.12,00,150/-. At the time of entering into agreement dated 19.08.2011 the complainant paid Rs.3.00 lacs and the complainant was assured to make the remaining payment in installments by 21.11.2012.  As there was no construction, development made by the OPs at the site, the complainant visited the OPs for refund of the deposited amount but no reply was given by the OPs.  The complainant has withdrawn the application filed before the Permanent Lok Adalat with permission to prefer the complaint before this Forum. The power of Consumer Fora is in addition to and not in derogation in any other law. Learned counsel for the complainant has thus argued that the complaint before this Forum is maintainable.

6.             On the other hand, the learned counsel for the OPs  has argued  that as per Legal Services Authority Act Section 22-C (2) after an application is made under sub section (1) to the Permanent Lok Adalat, no party to that application shall invoke jurisdiction of any court in the same dispute. In the present case civil suit was already filed by the OPs and the complainant had filed application before the Permanent Lok Adalat thus the present complaint cannot be taken up before this Forum. However, this contention of learned counsel for the OPs is not acceptable as the powers of Consumer Fora are in addition to and not in derogation in any other law. The object of the Consumer Protection Act, 1986 is for better protection of the consumers. Thus, we hold that the complaint is maintainable before this Forum.     Learned counsel for the OPs has further argued that the complainant has committed default in making payment of installments as per buyers agreement dated 19.08.2011.  The complainant herself had agreed to pay the installments within the stipulated period as per the agreements dated 19.08.2011.  Learned counsel for the OPs has relied upon the decision of Hon’ble State Consumer Disputes Redressal Commission Punjab in case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh in First Appeal No.329 of 2015 decided on 01.08.2016, in which the Hon’ble State Commission while relying upon the decision of Hon’ble National Commission in 2015(1) CPJ 514 (Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd.)  has held in Para No.9 that as  the complainants were  defaulter in not making the payment of installments; to which they had agreed, they were not entitled to any interest.

7.             We have gone through the pleadings, evidence and written arguments and heard the oral submissions addressed by the learned counsel for the parties. We are of the opinion that in the present complaint also the complainant had paid Rs.3,00,000/- to the OPs but did not pay the remaining installments as it is established from the material placed on record by the complainant. Thus the complainant cannot be held entitled to any interest on the deposited amount. With regard to Legal Services Authority Act Section 22-C (2), contention of learned counsel for the OPs is not acceptable as the powers of Consumer Fora are in addition to and not in derogation in any other law. The object of the Consumer Protection Act, 1986 is for better protection of the consumers. Thus, we hold that the complaint is maintainable before this Forum. 

8.             In view of our aforestated discussion and the judgment citied by the OPs of Hon’ble State Commission, Punjab in case titled as M/s. Bajwa Developers Ltd. Vs. Gurinder Singh (Supra), we are of the view that the present case is also covered by the aforestated judgment.

9.             Accordingly, we direct the OPs to refund to the complainant the deposited amount of Rs.3,00,000/- (Rs. Three lacs  only). We also find that the complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony caused due to negligent act of the OPs and litigation cost of Rs.5000/- (Rs. Five thousand only).   The present complaint stands partly allowed.            

                The OPs are further directed to comply with the order of this Forum within 45 days from the date of receipt of this order, otherwise the OPs shall be liable to pay 8% interest per annum on the total cost awarded.

                The arguments on the complaint were heard on 04.10.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated: 13.10.2016    

                                         (A.P.S.Rajput)           

President

(Mrs. R.K. Aulakh)

Member