DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.619 of 2016
Date of institution: 21.09.2016 Date of decision : 26.07.2018
Ravinder Kumar son of Late Inderjit Parmar, resident of 1032, FF, Phase-7, Mohali now residing at H.No.2797, Phase-VII, Mohali, District SAS Nagar.
…….Complainant
Versus
M/s. Bajwa Developers Ltd. (Regd.), Sunny Enclave, Desu Majra, Tehsil Kharar, District SAS Nagar (Mohali) through its Managing Director.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Shri Harinder Singh, counsel for the complainant.
Shri R.P. Sharma, counsel for the OP.
Order by :- Shri G.K. Dhir, President.
Order
Complainant booked 1 BHK BR No.55 for total sale consideration of Rs.12,00,000/- with OP and thereafter an agreement dated 10.05.2011 was executed between the parties. Complainant paid more than half of the amount because he had paid Rs.7,45,000/- in all till today. Complainant visited office of OP in March, 2012 and got assurance from OP as if construction work will start soon. Thereafter complainant kept on visiting the site many times for knowing status of construction work, but OP refused to give information regarding location of the plot even. Complainant claims that he is still ready and willing to deposit the balance amount, if OP shows land where the said apartment is to be constructed. Even after more than 5 years of time, land has not been shown to complainant and nor any construction work carried on the spot. Even the legal notice dated 14.07.2016 served on OP did not entail any result and as such this complaint filed for seeking direction to OP to give possession of the booked apartment or in the alternative to return back the amount of Rs.7,45,000/- with interest @ 18% per annum. Compensation for mental harassment of Rs.1.00 lakh and litigation expenses of Rs.15,000/- with interest @ 18% per annum also claimed.
2. OP failed to submit reply within stipulated period of 45 days and as such right of OP to file written version was struck off vide orders dated 29.12.2016.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 and Ex.C-2 and thereafter his counsel closed evidence. On the other hand, counsel for the OP tendered in evidence affidavit Ex.OP-1/1 of Shri Jarnail Singh Bajwa, Managing Director of OP and thereafter closed evidence.
4. Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.
5. Complainant to prove his case produced copy of agreement of sale Ex.C-1 for establishing that he contracted to purchase one BHK apartment having 450 sq. ft. area approximately for consideration of Rs.12,00,150/-. Amounts received by OP are endorsed on the back of first page of this agreement Ex.C-1 itself. Aggregate of amounts received as per acknowledgments of OP comes to Rs.6,60,000/-. When confronted with this position, then counsel for complainant admitted during course of arguments that no other receipt of balance amount of Rs.85,000/- is available with the complainant. However, it is claimed that one intermediary got the premium from complainant, which means that the original agreement before execution of Ex.C-1 was with someone else. Name of that other person, who got premium from complainant, is not at all known to complainant is a fact admitted by counsel for complainant during course of arguments. If that be the position, then for the premium amount of Rs.85,000/- paid by complainant to another person, who is not a party to this case, OP cannot be held liable. So liability of OP to refund the amount will be of Rs.6,60,000/- regarding which acknowledgements endorsed by it on the back of Ex.C-1.
6. Condition No.6 in agreement Ex.C-1 is there that in case plot/flat due to any technical defect could not be got by OP, then complainant will be entitled for refund of earnest amount only, but not to any compensation, but despite that this condition being harsh and oppressive, cannot be given effect to because OP after assuring delivery of constructed flat failed to carry out construction of more than 5 years after execution of agreement Ex.C-1 dated 10.05.2011. So, complainant had to file this complaint for inaction of OP in not starting construction work. Before filing this complaint, complainant served legal notice Ex.C-2 for seeking refund of paid amount of Rs.7,45,000/- with interest. However, payment of Rs.6,60,000/- alone is proved and as such contents of legal notice Ex.C-2 cannot be said to be correct in toto. If complainant got knowledge that construction work has not been started on the spot for the last 5 years, then he would not have prayed for delivery of possession of the apartment, but would have sought refund of the paid amount only. However, in the first instance, payer made for directing OP to deliver possession, despite the fact that through legal notice Ex.C-2 dated 14.07.2016 prayer for getting physical possession of apartment is not at all made, albeit prayer for refund of paid amount of Rs.7,45,000/- with interest alone made. So it is obvious that complainant himself is having wavering stand and as such in view of suppression of these material facts, complainant entitled to refund of paid amount with interest @ 12% per annum from the first ever demand for refund put forth by him through notice Ex.C-2 dated 14.07.2016, onwards till recovery.
7. As per law laid down in Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC), if the purchaser remained defaulter in not adhering to the installment payment plan, then he is not entitled for any interest, even though the builder had not developed the site, due to which he is not in a position to deliver possession. It is so because he who seeks equity must do equity. In case the equity seeker himself is defaulter, then he is not entitled for any interest, is the crux of ratio of above said case. Ratio of this case is fully applicable to the facts of the present case and as such complainant is not entitled to interest until he sought refund of the paid amount. That refund sought by complainant for the first time by issuing notice Ex.C-2 on 14.07.2016 and as such complainant entitled to interest @ 12% per annum on the deposited amount with effect from 14.07.2016 till payment.
8. Complainant made last payment in this case of Rs.1,80,000/- on 21.02.2012, but has not paid the balance amount of installments of 3rd to 5th as per stipulations in agreement Ex.C-1 and as such in view of non sticking to the payment plan schedule, complainant not entitled to interest in view of ratio of above said case. However, interest must be allowed from the date when refund sought for the first time by issue of notice Ex.C-2 so that on equitable considerations, complainant gets his due. As complainant suffered mental agony and harassment due to in action of OP in not starting construction, but OP has not seriously contested this case and as such reasonable amount of compensation for harassment and mental agony and litigation expenses also deserves to be allowed.
9. As a sequel of above discussion, the complaint is allowed with direction to OP to refund the received amount of Rs.6,60,000/- with interest @ 12% per annum w.e.f. 14.07.2016 till payment. Compensation for mental agony and harassment of Rs.20,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against OP. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Certified copies be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
July 26, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
