DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.467 of 2015
Date of institution: 15.09.2015 Date of decision : 01.06.2017
Aditya Grover son of S.C. Grover resident of H.No.31, Sector-11, Panchkula, Haryana.
……..Complainant
Versus
1. M/s. Western Buildcon Pvt. Ltd. c/o Best Homez Office, Chandigarh Kharar National Highway. Opposite Gulmohar Complex, Near Paras Panorama, Desu Majra, Kharar, District SAS Nagar, Mohali Punjab through its Directors.
2. M/s. Mona Town Ship Pvt. Limited having registered office at 428, Ground Floor, Behra Enclave, Pashchim Vihar, New Delhi through its Directors.
2nd Address:
M/s. Mona Town Ship Pvt. Limited having office in the name of Mona City at Main Road, Opposite Gurudwara, Sector 115, Khooni Majra, Kharar, District SAS Nagar, Mohali.
3rd Address:
M/s. Mona Town Ship Pvt. Limited having office in the name of M/s. Mona Greens at VIP Road, Zirakpur, District SAS Nagar, Mohali.
………. Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member
Present: Shri Arjun Grover, counsel for the complainant.
OP No.1 ex-parte.
Shri R.S. Sarao, counsel for OP No.2.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Aditya Grover has filed this complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant booked one plot measuring 111.25 sq. yards @ Rs.12,000/- per sq. yard in the housing project of OP No.1 at Khuni Majra, Sector 115, Mohali. At the time of booking, the complainant was assured that agreements for purchase of land for the project have already been entered with the land owners/agriculturists and the land is likely to be registered in the name of OP No.1. It was also assured that the project would be completed in time and registration in the revenue records of respective plots will be got executed after obtaining necessary approvals from the Govt. The complainant paid Rs.50,000/- to OP No.1 as advance against the cost of the plot vide cheque dated 11.07.2011, receipt whereof was issued by OP No.1. Complainant was informed that an agreement to sell would be entered between the complainant and OP No.1 on making 25% of the payment for purchase of plot. Accordingly, the complainant paid a sum of Rs.2,83,750/- to OP No.1 vide cheque dated 27.07.2011which was duly encashed by OP No.1. In the draw of lots conducted by OP No.1, Plot No.18 was allotted to the complainant which is mentioned in the agreement to sell dated 27.07.2011. Thereafter, an agreement dated 27.07.2011 was executed between the complainant and OP No.1. As per terms and conditions of the agreement, the balance amount was to be paid within one month from the date of approval of the project. It was also agreed that if the seller backs out from the bargain then in such eventuality the seller shall pay double the earnest money. It was also agreed that OP No.1 would not charge any further cost/charges from the purchaser. It was informed by OP No.1 in February, 2012 that the approvals for the project are being sought and registration of plots shall commence from March, 2012. As OP No.1 could not get the necessary approvals for the project, OP No.1 in July, 2012 executed re-settlement terms of the agreement wherein it was mentioned that OP No.1 has already extended the date from 15.11.2011 to 30.04.2012 and is seeking further extension upto 15.08.2012. It was also mentioned in the re-settlement agreement that if the seller fails to get the sale deed registered on or upto 15.08.2012 then the seller shall pay double the amount of earnest money to the buyer upto 15.09.2012. Despite all assurance, OP No.1 had failed to handover the possession of the plot. Having not received any information, the complainant sent letter dated 29.09.2013 to OP No.1 and sought information about its stand on the commitment made by it in resettlement agreement. The complainant came to know that OP No.1 handed over/transferred the entire project to OP No.2 and got the land of the project registered in the name of OP No.2. It also came to the knowledge of the complainant that OP No.2 is forcing the purchasers to get cancelled the initial agreements entered with OP No.1 and to execute fresh agreements with new terms which is illegal and unwarranted. OP No.2 is also charging a sum of Rs.75,000/- over and above the price of the plot which demand is not sustainable. The complainant further came to know that OP No.2 got effected registration of the plots to some of the original purchasers who have executed fresh agreements with OP No.2. Inaction on the part of the OPs of not handing over the plot to the complainant within the stipulated time and further by not fulfilling the terms stipulated in resettlement terms of making double the payment of earnest money is illegal and unjust. The complainant also lodged a complaint with SSP, Mohali on 14.07.2015 against the OPs. Even no development work has been executed at the site by OP No.2. Hence this complaint for giving directions to the OPs to repay double the amount of Rs.3,33,750/- as per resettlement terms alongwith interest @ 18% per annum w.e.f. 15.09.2012 till actual payment; to pay him Rs.1,00,000/- as compensation for mental and physical harassment and Rs.15,000/- as litigation expenses.
3. As per the tracking report retrieved from the site of India Post, the notice sent to OP No.1 was delivered on 23.12.2015. None having appeared for it despite repeated calls, OP No.1 was proceeded against ex-parte vide order dated 02.02.2016.
4. Upon notice OP No.2 caused appearance and filed written statement by taking preliminary objections that the complainant has not approached this Forum with clean hands and suppressed material facts; the complaint is liable to be dismissed for mis-joinder of parties and the complainant is not consumer of OP No.2 as complainant has neither paid any amount nor entered into any agreement with it. On merits, it is pleaded that OP No.2 has no concern with the housing project of OP No.1. OP No.2 has denied that it had entered into any understanding with OP No.1 regarding the project. In fact OP No.2 had purchased the land directly from their respective owners and never dealt with OP No.1. Since OP No.2 has started his new project, the question of charging any amount from the buyers of initial project of OP No.1 does not arise at all. Thus denying the averments of the complaint against it, OP No.2 has sought dismissal of the complaint.
5. In order to prove the case, the complainant tendered in evidence his affidavit Ex. CW-1/1; copies of cheque dated 11.07.2011 Ex.C-1; receipt dated 11.07.2011 Ex.C-2; cheque dated 27.07.2011 Ex.C-3; agreement dated 27.07.2011 Ex.C-4; re-settlement terms Ex.C-5; letters alongwith postal receipt Ex.C-6; jamabandi Ex.C-7; sale deed Ex.C-8 and complaint Ex.C-9. In rebuttal OP No.2 tendered in evidence affidavit Mahesh Kant Sharma, Sr. Loan and Recovery Officer Ex.OP-2/1; copies of authorization letter Ex.OP-2/2; sale deeds Ex.OP-2/3 to Ex.OP-2/5 and GPA Ex.OP-2/6.
6. Learned counsel for the complainant has argued that OP No.1 has failed to handover possession of the plot even after extended period upto 15.08.2012 and as per condition No.5 of the agreement to sell Ex.C-4 the complainant is entitled to double of the earnest money paid to OP No.1. Learned counsel for the complainant has further argued that OP No.2 has also not started any construction at the site after taking over all the rights of the project from OP No.1. Learned counsel has thus argued that the complainant is entitled to double of the amount of earnest money from the OPs alongwith compensation for harassment and litigation expenses.
7. On the other hand learned counsel for OP No.2 has argued that OP No.2 has not taken over the project of OP No.1 and has no concern with it. OP No.2 has purchased the land for its own project directly from the landowners. He has argued that OP No.2 has purchased only some portion of land from OP No.1 as that portion was causing some hindrance in the project of OP No.2. Learned counsel has thus argued that the complainant has failed to prove any deficiency in service or unfair trade practice on the part of OP No.2 and that the complaint may be dismissed against OP No.2.
8. We have gone through the pleadings, evidence and written as well as oral arguments of the counsel for the parties. The complainant has failed to produce any documentary evidence regarding his plea that OP No.2 has taken over the project from OP No.1. Since OP No.2 has no concern with the project of OP No.1, thus, we hold that complaint against OP No.2 deserves to be dismissed. As regards OP No.1 is concerned, the complainant has proved payment of Rs.3,33,750/- to OP No.1 vide documents Ex.C-1 to C-3. The receipt of Rs.3,37,750/- by OP No.1 has duly been mentioned in clause-2 of the agreement to sell dated 27.07.2011. Further as per Clause-5 of the agreement to sell Ex.C-4, it was agreed between the parties that if the said seller backs out from this bargain, then he has to pay said purchaser the double of the earnest money paid to the said seller. Both the complainant and OP No.1 with mutual understanding extended the date of project upto 15.08.2012 vide resettled terms of agreement Ex.C-5. However, OP No.1 had failed to complete the project and to handover the possession to the complainant by 15.08.2012. It has further been agreed in Ex.C-5 at Clause-3 that if the seller/builder fails to get the sale deed registered in favour of the purchaser regarding the agreed plot on or upto 15.08.2012, then he shall pay double the amount already paid as earnest money upto 15.09.2012 and the purchaser will be entitled to get the agreement executed from the court of law and to initiate other legal proceedings as per rule. OP No.1 has chosen not to appear to contest the complaint despite delivery of notice upon it. Non appearance of OP No.1 despite knowledge amounts to admission of the averments of the complaint on the part of OP No.1.
9. Accordingly, in view of our aforesaid discussions, the present complaint is allowed against OP No.1 with the direction to pay to the complainant double of Rs.3,33,750- (Rs. Three Lakhs Thirty Three thousand Seven Hundred Fifty only) alongwith interest @ 12% per annum w.e.f. 15.09.2012 till actual payment. OP No.1 should also pay to the complainant compensation of Rs. 15,000/- (Rs. Fifteen thousand only) for mental agony, harassment and Rs.10,000/- (Rs. Ten Thousand only) towards costs of litigation.
The arguments on the complaint were heard on 17.05.2017 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: 01.06.2017
(A.P.S.Rajput)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
