Punjab

Ludhiana

CC/19/24

Baljinder Kaur - Complainant(s)

Versus

M/s JMS Investment Pvt.Ltd - Opp.Party(s)

Nipun gupta Adv.

31 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                      Consumer Complaint No:24 dated 07.01.2019.                                 Date of decision: 31.07.2024.

 

Baljinder Kaur Saini wife of Dilbagh Singh Saini, R/o. House No.140-C, Street No.2, Chandigarh Road, Backside Veer Palace, GTB Nagar, Mundian Kalan, Ludhiana.

                                                                                       ..…Complainant

                                                Versus

1. M/s. JMS Investment Pvt. Ltd., Through its Directors/Managing Director Surinder Pal Singh, C/o. Registered office at: 29-Ist Floor, Nehru Sidhant Kender, Feroze Gandhi Market, Ludhiana-141001.

IInd Address:- 118-AX, Mode Town Extension, Ludhiana.

2. State Bank of India, Branch Civil Lines, Ludhiana through Branch Head/Manager.                                                                                                                                                                 …..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Shiv Kumar, Advocate.

For OP1                         :         None.

For OP2                         :         Sh. Anil Saggar, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that OP1 disclosed and represented the complainant regarding purchase of land measuring 200 sq. yards at village Jandiali, locality known as Fortune City, AKME Polis, Ludhiana-Chandigarh Road, Ludhiana and for raising flats/floors on the said property along with other properties. A Joint Development Agreement dated 28.11.2017 was also executed between OP1 and one Mohit Khosla. Believing the representation of the OPs, the complainant decided to purchase a flat and she entered into an agreement to sell dated 16.03.2018 regarding flat/residential floor bearing 406GF, Block CARDIFF having approximately 1300 sq. feet for a sale consideration of Rs.36,00,000/-, out of which the complainant and her husband paid Rs.11,80,000/- to OP1 i.e. Rs.1,50,000/- on 01.01.2012, Rs.3,90,000/- on 07.01.2013 and Rs.5,40,000/- vide cheque No.178701 and Rs.1,00,000/- in cash on 02.11.2013. Sale deed was to be executed after paying balance sale consideration. The complainant stated that OP1 approached and told her that the flat is ready for possession and to get the sale deed executed in her favour. Thereafter, the complainant approached OP2 for sanctioning loan for balance sale consideration to get the sale deed executed in favour. OP1 supplied the necessary documents to the complainant for getting loan and even gave an undertaking in the shape of affidavit dated 18.05.2018 to execute and get the sale deed in favour of complainant. OP2 sanctioned loan of Rs.24,20,000/- in favour of the complainant vide loan account No.37697855700 dated 01.05.2018. On the asking of OP2, the complainant get secured the loan vide insurance policy SBI Suraksha bearing No.37742478638. The complainant further stated that after completing all formalities of loan and sanction of loan in June 2018, she approached and requested OPs to execute and register the sale deed in her favour and to hand over possession of the flat as undertaken by OP1. But the OPs delayed the matter on one pretext or the other and did not execute sale deed in favour of the complainant for a continuous period of six months. On the failure of the OPs to execute and register the sale deed, the complainant had to bear expenses of loan processing fee charges and insurance policy interest amounting to Rs.84,053/- and principal amount and interest i.e. repayment charges as per certificate Rs.1,27,811/- besides the charges of e-stamp papers of Rs.1,44,400/- and court fee of Rs.77,800/-. Due to non execution of the sale deed by OP1, the complainant had to close her loan account with OP2 for which she had to return insurance policy for which she paid Rs.84,053/- and she had to bear other expenses i.e. Rs.1,44,000/- for purchase of e-stamp papers out of which Rs.14,400/- was deducted and Rs.1,29,600/- were refunded to her, Rs.77,800/- court fee charges, Rs.9700/- loan processing fee, Rs.1,27,811/- as interest and repayment charges. The complainant served a legal notice dated 15.10.2018 upon OP1 but no reply was received. Hence this complaint, whereby the complainant has prayed for issuing direction to OP1 to refund an amount of Rs.11,80,000/-, Rs.14,400/-, Rs.77,800/-, Rs.25,000/-, Rs.1,02,811/-, Rs.9700/-, Rs.84,053/- as well as compensation of Rs.2,00,000/- and litigation expenses of Rs.50,000/-.

2.                Upon notice, OP1 appeared and filed written statement and by taking preliminary objections, assailed the complaint on the ground of its maintainability; suppression of material facts; the complainant has not come with clean hands; the complainant has no locus standi to file the present complaint; lack of cause of action; bad for mis-joinder and non-joinder of necessary party etc. OP1 stated that Mr. Mohit Khosla owner of the land and the flat No.406 GF is a necessary party to adjudicate the matter with whom OP1 entered into joint development agreement dated 28.11.2017 to develop the residential floors on his land and to enter into agreement to sell with the prospective purchasers. Said Mohit Khosla is to execute and to get register sale deed being owner and the complainant was well aware regarding this fact. Even said Mohit Khosla has also admitted in his affidavit dated 12.01.2016 to the effect that he is the owner and is ready to execute the sale deed. He has also admitted in his affidavit that the complainant had purchased the Flat No. 406-GF.

                   OP1 further stated that the complainant entered into FLOOR BUYER'S AGREEMENT dated 16.03.2018 for purchase of one Flat No. 406 at GF (Ground Floor) Block No. Cardiff of 1300 square feet for a total Rs.36,00,000/-. She paid Rs. 11,80,000/- as earnest money and she was to deposit the balance sale consideration of Rs. 24,20,000/- in the joint Bank account of Joint Developer (J.D) i.e. OP1 and said Mohit Kumar owner of the flat in question but she failed to deposit the same inspite of requests made through personal meetings, telephone and through written notices calling upon her to intimate OP1 within 30 days of the receipt of notice if she is willing to continue with the agreement. In the event of failure to reply in writing to the company within the given time, it shall be presumed that you are not interest to continue with the agreement and in that condition, the agreement shall be treated as cancelled and amount paid by her shall stand forfeited. Thus, the agreement dated 16.03.2018 stood cancelled and earnest money stood forfeited because the complainant failed to do so. The article 2.9 of the agreement also authorizes OP1 to forfeit the earnest money in case of failure of the purchaser to perform the obligation, term and condition set out in the agreement. OP1 further stated that as per settled law a person who is at fault cannot be benefitted for his own wrong and fault. The complainant herself is at fault and wrong. She failed to comply with the terms of the FLOOR BUYER'S AGREEMENT and she did not come forward to execute and get registered sale deed and failed to deposit the balance sale consideration in the account of OP1 despite oral requests through personal meetings, telephone did not put any effect upon the complainant, the answering respondent sent legal notices i.e. notice dated 27.11.2018, notice dated 03.01.2019, notice dated 05.04.2019 and notice dated 16.04.2019 requesting the complainant in all the above said 4 notices calling upon her to intimate OP1 within 30 days of the receipt of notice if she is willing to continue with the agreement. In the event of failure to reply in writing to the company within the given time, it shall be presumed that you are not interest to continue with the agreement and in that condition, the agreement shall be treated as cancelled and amount paid by her shall stand forfeited. Thus, the agreement dated 16.03.2018 stood cancelled and earnest money stood forfeited because the complainant failed to do so. The complainant neither gave reply of the notices inspite of the receipt of the same nor came forward to execute and get registered sale deed and failed to pay the balance sale consideration and thus the agreement has been cancelled and his advance money has been forfeited due to the fault of the complainant and non-compliance of the terms of the agreement by the complainant. OP1 further stated it is not at fault as it is the complainant who did not come forward to get executed and registered sale deed of the Flat No.406 GF (Ground Floor) agreed to be purchased by her vide agreement dated 16.03.2018 on payment of balance sale consideration of Rs.24,20,000/- and thus they are not liable for any consequences and are not liable to refund the earnest money nor any amount to the complainant as claimed by her.

                   OP1 further stated that it is still ready to sell the flat and to execute and get registered the sale deed of flat in question on payment of balance sale consideration of Rs.24,20,000/- along with interest @18% from the date of agreement dated 16.03.2018 till the date of payment. Even the complainant herself admitted in the article/clause No. 2.6 that in case of delay of payment, the purchaser shall be liable to pay interest at the rate of 18% per annum and article no. 4.1 also speaks that terms of the agreement are binding upon the parties. Further, the complainant also agreed vide articles 8.1 of the agreement that she shall indemnify the company in the case of contravention of the terms of the agreement. As Articles 9.8 (a) of the agreement, OP1 can waive the breach of the term made by the purchaser party if the purchaser is ready to pay the balance sale consideration with interest at the rate of 18% per annum.

                   On merits, OP1 reiterated the crux of averments made in the preliminary objections. OP1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                OP2 appeared and filed separate written statement and by taking preliminary objections, assailed the complaint on the ground of its maintainability; lack of cause of action etc. OP2 stated that it has been illegally dragged in false litigations as no relief was claimed by the complainant against it.

                   On merits, OP2 reiterated the crux of averments made in the preliminary objections. OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In support of her claim, the complainant tendered her affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of her Aadhar Card, Ex. C2 is the copy of Floor Buyer’s Agreement, Ex. C3 is the copy of arrangement letter dated 11.05.2018 regarding home loan, Ex. C4 is the copy of Joint Development Agreement, Ex. C5 and Ex. C7is the copy of certificate dated 07.12.2018 of SBI Bank , Ex. C6, Ex. C8 is the copy of home loan account statement, Ex. C9 is the copy of account statement from 01.05.2018 to 08.12.2018 of savings account of the complainant, Ex. C10 is the copy of letter dated 03.12.2018 of the complainant, Ex. C11 is the copy of the refund of non-judicial stamp, Ex. C12 is the copy of e-Stamp, Ex. C13 is the copy of affidavit of the complainant, Ex. C14 is the copy of counterfoil of Rs.1,44,017/-, Ex. C15 is the copy of counterfoil of Rs.77,805/-, Ex. C16 is the copy of legal notice, Ex. C17 is the postal receipt, Ex. C18 and Ex. C20 is the copy of demand draft of Rs.2,42,000/-, Ex. C19 is the copy of affidavit of Mohit Khosla and closed the evidence.

                   During the proceedings, the complainant moved an application for leading additional evidence, which was allowed vide order dated 23.10.2023.

                   In additional evidence, the complainant tendered documents ex. C20 is the copy of FIR No.168 of 2017, Ex. C21 is the copy of FIR No.256 of 2017, Ex. C22 is the copy of FIR No.340 of 2018, Ex. C23 is the copy of FIR No.156 of 2020, Ex. C24 is the copy of FIR No.157 of 2020, Ex. C25 is the copy of FIR No.127 of 2019, Ex. C26 is the copy of FIR No.49 of 2023, Ex. C27 is the copy of FIR No.148 of 2023, Ex. C28 is the copy of news item, Ex. C29 is the copy of  whatsapp chatting, Ex. C30 is the copy of call details, Ex. C31 is the copy of draft copy of conveyance deed, ex. C32 is the copy of visiting card of deed writer, Ex. C33 is the copy of sanction letter of bank, Ex. C34 to Ex. C35 are the copies of demand drafts, Ex. C36 to Ex. C38 are the copies of reply to legal notice, Ex. C39 are the photographs, Ex. C40 is the copy of certificate of 65B under Indian Evidence Act and closed the additional evidence.

5.                On the other hand, counsel for OP1 tendered affidavit Ex. R1/A of Sh. Surinder Singh, Managing Director of OP1 along with documents Ex. R1 is the copy of memorandum and articles of association, Ex. R2 is the copy of certificate of incorporation, Ex. R3 is the copy of resolution dated 10.06.2019, ex. R4 is the copy of Floor Buyer’s Agreement, Ex. R5 is the copy of Joint Development Agreement, Ex. R6 is the copy of reminder dated 27.11.2018, Ex. R7 is the copy of courier receipt, Ex. R8 is the copy of 2^nd and final reminder dated 03.01.2019, Ex. R9 is the copy of postal receipt, Ex. R10 is the copy of final reminder dated 05.04.2019  Ex. R11 is the copy of postal receipt, Ex. R12 is the copy of final reminder dated 16.04.2019, Ex. R13 is the copy of postal receipt, Ex. R14 is the copy of courier receipt and closed the evidence.

                   The counsel for OP2 suffered statement that written reply of OP2 be considered as evidence of OP2 and closed the evidence on behalf of OP2.

6.                We have heard the arguments of the counsel for the complainant as well as OP1 and also gone through the complaint, affidavit and annexed documents and written statements along with affidavit and documents produced on record by both the parties. We have also gone through written arguments submitted by the complainant.

7.                Admittedly, the complainant vide agreement to sell dated 16.03.2018 Ex. C2 = Ex. R4 (Floor Buyer’s Agreement) entered into agreement to purchase a flat/residential No.406GF, Block CARDIFF measuring 1300 sq. feet (Equivalent to 120.77 sq. mtrs.) for a sale consideration of Rs.36,00,000/-. It is further an admitted case that the complainant paid Rs.11,80,000/- as earnest money to OP1 i.e. Rs.1,50,000/- on 01.01.2012, Rs.3,90,000/- on 07.01.2013 and Rs.5,40,000/- vide cheque No.178701 and Rs.1,00,000/- in cash on 02.11.2013 and receipt of said payment is duly mentioned in clause 2.1 on page 6 of Ex. C2=Ex. R4. As per agreement, balance sale consideration amount of Rs.24,20,000/- was to be paid at the time of execution of sale deed as per clause 4.1 of Article 4 Possession of Ex. C2=Ex. R4. The said Clause 4.1 reads as under:-

                   “Article 4: Possession

4.1 Subject to clause 9.2, the possession of the Residential Floor shall be offered to the Purchaser upon registration of the sale deed, provided, all amount due and payable by the Purchaser under this Agreement have been paid to the Company. The Parties agree that no ownership, interest, title or control in the Residential Floor and Parking Space(s) accrues to the Purchaser prior to the registration of the sale deed for the Residential Floor.”

Further clause 9.2 reads as under:-

“9.2 Force Majeure

If either Party's performance of any of its obligations hereunder is prevented, restricted or interfered with from causes which are beyond its reasonable control, such as but not limited to, strikes, labour controversies, go-slow or other action by any trade union or employee, natural calamity, riots, civic commotion or disorder non- availability of raw materials, inflatory escalation in prices, adverse weather conditions, fire, flood, atmospheric disturbance, lightning, storm, tidal wave, hurricane, tornado, earthquake, landslide, soil erosion, subsidence, washout, epidemic or other acts of God or elements, embargoes or governmental orders or restrictions, the inability to obtain, maintain or renew, or the suspension, termination, adverse modification or interruption of, any servitude, easement, right of way, license, consent, approval, authorization or permit of any Government Authority (each such occurrence being hereinafter referred to as a "Force Majeure"), then such Party shall be excused from such performance to the extent of such prevention, restriction or interference. The Agreement shall be suspended during such delay and upon cessation of the causes of the delay the Agreement shall become operative.”

It is further an admitted fact that the complainant availed loan of Rs.24,20,000/- from OP2 Bank vide sanction letter dated 11.05.2018 (Ex. C3) for making balance sale consideration to OP1 and for getting the sale deed registered to get the possession of the flat from OP1. The complainant also completed all the formalities like preparation of draft sale deed/conveyance sale deed Ex. C31 purchase of judicial stamp papers Ex. C12, preparation of demand draft dated 26.11.2018 Ex. C34 of Rs.24,20,000/- in name of JMS Investment Pvt. Ltd.,  but OP1 did not come forward to get the sale deed registered in favour of the complainant.

8.                The counsel for the complainant contended that OP1 has failed to hand over possession of the flat in question after execution of sale deed in favour of the complainant despite the fact that she was ready with the balance sale consideration of Rs.24,20,000/- by availing loan from OP2 Bank and even after completing the other formalities by spending ancillary charges for purchase of stamp papers etc. The complainant is entitled for refund of earnest money and other ancillary charges occurred by the complainant for completing formalities to get registered the sale deed of flat in question in her favour.

9.                On the other hand, the counsel for OP1 refuted the contentions raised by the counsel for the complainant by contending that it is the complainant who did not come forward with the balance sale consideration to get the sale deed executed in her favour and as such, due to violation of terms and conditions of the buyer’s agreement on the part of the complainant, she is entitled for any refund rather OP1 has right to forfeit the earnest money.

10.              Now we have to see whether there is delay on the part of OP1 in offering the possession of the plot to the complainant after execution of sale deed and if so, whether the complainant is entitled to refund and compensation of the amount and as to what extent?

11.              As per pleadings of the parties and evidence produced on record by both the parties, an agreement to sell dated 16.03.2018 Ex. C2 = Ex. R4  was entered into between the complainant and OP1 regarding purchase a flat/residential No.406GF, Block CARDIFF measuring 1300 sq. feet (Equivalent to 120.77 sq. mtrs.) for a total sale consideration of Rs.36,00,000/-, out of which the complainant deposited Rs.11,80,000/- with OP1 as earnest money. As per agreement, the possession of the flat was to be delivered to the complainant after execution of sale deed. This fact has not been denied by OP1 in its written statement and affidavit. However, no time frame has been mentioned in this agreement that within what period of time the possession of the flat will be given to the complainant. As such, the complainant had adhered to the payment schedule. As the possession as per agreement was to be delivered after execution of sale deed on payment of balance sale consideration. The complainant availed loan of Rs.24,20,000/- from OP2 Bank for paying remaining balance sale consideration to OP1 and this fact can be corroborated from sanction letter Ex. C3. The complainant also got secured the said loan by availing insurance policy Even the complainant got prepared conveyance sale deed Ex. C31, purchased judicial stamp papers worth Rs.1,44,000/- Ex. C3, paid Rs.77,800/- as court fee and prepared demand draft of Rs.24,20,000/- Ex. C3. As such, the complainant fulfilled her part of the contract to get the possession of the flat after execution of sale deed by OP1. However, OP1 has failed to execute sale deed of the flat in question in favour of the complainant. The complainant was compelled to issue letter dated 15.10.2018 Ex. C16 to OP1 whereby calling upon OP1 to execute and get the sale deed registered in her favour within 15 days from the date of receipt of legal notice. In response to legal notice Ex. C16, OP1 issued reminders dated 27.11.2018 Ex. R6, 2^nd and final reminder dated 03.01.2019 Ex. R8 dated 03.01.2019, final reminder dated 05.04.2019 Ex. R10 as well as final reminder dated 16.04.2019 Ex. R12 stating that the complainant has failed to comply with the terms and conditions of the agreement clearing her due payment in time and as such, in case she will not give reply in writing, the agreement shall be cancelled and amount paid shall be forfeited. This is for the first time, OP1 issued said letters to the complainant after issuance of legal notice dated 15.10.2018 Ex. C16 by the complainant. Even OP1 in these letters/reminders did not mention the fact that the possession of the flat is ready after completing all the works. The perusal of the photographs Ex. C39 shows that the flats/residential houses are under the process of construction and not completed in all respect to reside there. The perusal of FIRs Ex. C20 to Ex. C27 shows that OP1 company along with its associates are habitual offenders of cheating the innocent people by grabbing their money under the garb of carving and selling the residential plots. This amounts to deficiency in service on the part of OP1. So one cannot take advantage of its own wrong.

12.              Even due to non-fulfillment of part of the contract on the part of OP1, the complainant had to cancel the loan with OP2 for which the complainant wrote letter dated 03.12.2018 Ex. C10 to OP2. The said loan account was closed and the complainant had to pay Rs.1,27,811/- as repayment charges and in this regard, State Bank of India issued certificate dated 07.12.2018 Ex. C5 regarding charging of Rs.1,27,811/- as prepayment charged i.e. Rs.25,000/- as principal prepayment interest applied during the year 2018-19 up to 05.12.2018 as well as Rs.1,02,811/- being total repayment during 2018-19 up to 05.12.2018. The complainant also paid Rs.9700/- as processing charges on home loan. Besides this the insurance charges of Rs.84,053/- were paid by the complainant for securing the home loan. Further the complainant had to got refunded the Non-Judicial Stamp papers of Rs.1,44,000/- from the concerned authorities and in this regard she submitted a duly filled form Ex. C11, which were refunded to the complainant after deducting Rs.14,400/-. The complainant had to pay court fee of Rs.77,805/- vide counterfoil Ex. 15. In all the complainant had to suffer loss of Rs.14,09,711/- (i.e. Rs.11,80,000/-+Rs.14,400/-+Rs.77,800/-+Rs.1,27,811/-+Rs.9700/-+Rs.84053/-).

13.              In this regard, reference can be made to Ireo Grace Realtech Pvt. Ltd. Vs Abhishek Khanna & another (2021) 3 SCC 241, the Hon’ble Supreme Court has held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them.” Further reference can be made to Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and others Vs DLF Southern Homes Pvt. Ltd. & others (2020) 16 SCC 512, whereby the Hon’ble Supreme Court of India has held that “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency.” Further, it has been held by the Hon’ble Supreme Court that “in case of gross delay in handing over possession by builder beyond contractually stipulated period, flat purchaser is entitled to just and reasonable compensation for such delay and such compensation not constrained by terms of rate which is prescribed in an unfair bargain.

                   As such, after appreciating the rival contentions of the parties as well as after perusing the documents on record, this Commission is of the view that the complainant is entitled to refund of earnest money besides other ancillary charges spent by the complainant as well as for compensation for deficiency of service and unfair trade practice on the part of OP1. The provisions of the Consumer Protection Act enable a consumer to claim and empowers the Commission to redress injustice done to the complainant. The amount of compensation can be determined by taking into facts and circumstances of each case and also mitigating circumstances that may arise in favour of the opposite party as well. Reference can be made to Vidya and others Vs M/s. Parsvnath Developers Ltd. in Civil Appeal No.8985 of 2022 decided by the Hon’ble Supreme Court of India vide order dated 29.07.2024 (Neutral Citation: 2024 INSC 557) whereby the  entire deposited amount was ordered to be refunded to the complainants along with interest @12% per annum from the date of respective deposit till the date of refund.

                   In these set of facts and circumstances, it would be just and appropriate if the opposite party is directed to refund the amount earnest money of Rs.11,80,000/- along with interest @12% per annum from the date of deposit till the date of its actual payment and also to refund Rs.14,400/-, Rs.77,800/-, Rs.1,27,811/-, Rs.9700/-, Rs.84053/-  along with interest @9% per annum from the date of filing of complaint till its actual payment within 30 days from the date of receipt of copy of order. OP1 shall further pay composite cost of Rs.50,000/- to the complainant.

14.              As a sequel of above discussion, the complaint is partly allowed with direction to OP1 to refund the amount earnest money of Rs.11,80,000/- along with interest @12% per annum from the date of deposit till the date of its actual payment and also to refund Rs.14,400/-, Rs.77,800/-, Rs.1,27,811/-, Rs.9700/-, Rs.84053/-  along with interest @9% per annum from the date of filing of complaint till its actual payment. These amounts shall be paid by OP1 to the complainant within 30 days from the date of receipt of copy of order.  OP1 shall further pay a composite cost of Rs.50,000/- (Rupees Fifty Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. However, the complaint as against OP2 bank is hereby dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

15.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)                                (Sanjeev Batra)

Member                                                President         

 

Announced in Open Commission.

Dated:31.07.2024.

Gobind Ram.