DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.253 of 2016
Date of institution: 02.05.2016 Date of decision : 30.10.2017
Shweta Nagpal daughter of Jatinder Mohan Parti, resident of House No.3313, Sector 23-D, Chandigarh.
……..Complainant
Versus
Jarnail Singh Bajwa, Managing Director, M/s. Bajwa Developers Limited, Office Sunny Enclave, Desu Majra.
………. Opposite Party
Complaint under Sections 12 & 13
Of the Consumer Protection Act.
Quorum
Shri Ajit Pal Singh Rajput, President Mrs. Natasha Chopra, Member.
Present: Shri Kuldip Singh Chaudhary, cl. for the complainant.
Shri Kulwinder Singh, counsel for the OP.
ORDER
By Ajit Pal Singh Rajput, President
Complainant Shweta Nagpal has filed this complaint against the Opposite Party (hereinafter referred to as the OP) under Section 12 of the Consumer Protection Act. The brief facts of the complaint are as under:
2. The complainant vide agreement to sell dated 19.05.2011 purchased one BHK BR No.754, 1554 Khata Number Sunny Khasra Number Apartment of village F21, Mohali Sector 74-A, 117, measuring 454 sq. ft. (approx.) for a total sale consideration of Rs.12,50,100/-. The complainant paid Rs.10,64,500/- to the OPs vide various installments under receipt. The last installment of Rs.1,87,500/- was to be paid at the time of possession of the flat. As per the agreement, the possession of the apartment was to be handed over to the complainant by 25.10.2012 but at the request of the OP, the same was extended to 10.01.2013. Till date neither the flat has been constructed nor any work seems to be carried out by the OP at the spot. The complainant got issued legal notice dated 10.02.2016 to the OP but the OP has failed to give reply to the legal notice. Hence this complaint for giving directions to the OP to handover the possession of the flat or to refund the amount of Rs.10,64,500/- alongwith interest @ 12% per annum from the date of due till realisation and litigation costs of Rs.30,000/-.
3. The complaint is contested by the OP by filing reply, in which it has raised certain preliminary objections, inter alia, that the OP has already filed civil case on 23.03.2016 and the present complaint is liable to be dismissed; that this Forum has no jurisdiction to entertain and try the complaint as the transaction between the parties is purely sale agreement; the complaint is being filed without any cause of action. The complainant is well aware that the approvals of the project are under process and it will take time for getting the approval and possession of the flat. The complainant was made aware that approvals are yet to be received and LOI was received on 19.05.2014 . On merits, the OP has denied the averments of the claim and has sought dismissal of the complaint.
4. In order to prove the case, the complainant tendered in evidence her affidavit Ex. CW-1/1; copies of agreement to sell Ex.C-1; legal notice Ex.C-2; original acknowledgement Ex.C-3 and original postal receipt Ex.C-4. In rebuttal the OP tendered in evidence affidavit of Jarnail Singh Bajwa, its MD Ex.OP-1/1.
5. Learned counsel for the complainant has argued that the complaint is to be allowed on this ground that there was violation of the provisions of the PAPRA by the OP and without having the requisite permissions/sanctions of the competent authorities it received amounts exceeding Rs.25,000/- and executed the Agreement Ex.C-1 regarding the flat in dispute. The Agreement is dated 19.05.2011 whereas LOI has been granted by the GMADA on 19.05.2014. By selling the flat without the requisite permissions/sanctions the OP adopted unfair trade practice. There is no likelihood of the completion of the Project in the near future and as such, the complainant is no more interested in the possession of the flat and confines her request for refund of the amount along with interest and compensation for the harassment and mental agony suffered by her.
6. On the other hand, it was submitted by the learned counsel for the OP that from the evidence produced on the record, it stands proved that the OP had already applied for permissions/sanctions of the competent authorities before the Agreement was executed and, as such, there was no violation of provisions of the PAPRA. The Project was exempted from the provisions of that Act and, as such, the complainant cannot invoke the same to get the relief claimed in the complaint. The complainant is not entitled to any of the amounts claimed in the complaint and the same is liable to be dismissed.
7. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties. According to the complainant, against the total price of Rs.12,50,100/- she paid an amount of Rs.10,64,500/-. The detail of the payment made by the complainant is mentioned on the second page of agreement to sell Ex.C-1. The OP had been collecting huge amounts from the buyers for the development of the Project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. It is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing its part of the Agreement. Except the bald statement of Jarnail Singh Bajwa, made in his affidavit Ex.OP-1/1, that the OP had applied for the issuance of Letter of Intent or for permission for Change of Land Use before the Agreement, no supporting document has been proved on the record. The contents of the documents could have been proved only by the documents itself and the oral evidence produced by the OP cannot be relied upon. By executing the Agreement Ex.C-1 and receiving the amount more than Rs.25,000/- the OP had violated the provisions of PAPRA. It was not competent to execute the Agreement in respect of the flat and to receive different amounts. These acts on the part of the opposite party amounts to adoption of unfair trade practice. In these circumstances the complainant is entitled to the refund of the amount so paid by her. Though she had not paid all the amounts as per the Agreement, yet keeping in view the fact that the opposite party had not obtained all the permissions/sanctions as per PAPRA from the competent authorities, she was justified in not making further payments as and when these facts came to her knowledge. The OP cannot withhold her amount and is liable to refund the same along with interest. The Hon’ble State Consumer Disputes Redressal Commission in Ms. Sneh Sood Vs. M/s. Bajwa Developers Ltd. in Consumer Complaint No.240 of 2016 decided on 23.02.2017 has ordered refund of the deposited amount of the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund.
8. Accordingly, in view of our aforesaid discussion, we direct the OP to refund the deposited amount of Rs.10,64,500/- (Rs. Ten Lakhs Sixty Four thousand five hundred only) to the complainant alongwith interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund. We also find that complainant is entitled to a sum of Rs.25,000/- (Rs. Twenty five thousand only) on account of mental agony due to the negligent act of the OPs and litigation cost of Rs.10,000/- (Rs. Ten thousand only). The present complaint stands allowed accordingly.
The OP is further directed to comply with the order of this Forum within 30 days from the date of receipt of this order, failing which the amount of compensation awarded shall carry interest at the rate of 12% per annum from the date of this order till realisation.
The arguments on the complaint were heard 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: 30.10.2017
(A.P.S.Rajput)
President
(Mrs. Natasha Chopra)
Member
