Punjab

Fatehgarh Sahib

RBT/CC/841/2018

Dharam Singh - Complainant(s)

Versus

The Manging Director, Bajwa Developers Ltd - Opp.Party(s)

Pankaj Maini

03 Jan 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FATEHGARH SAHIB.

                                                                    RBT/CC/841/2018

Complaint No. 841 of 2018

                                                                   Date of Institution:09.08.2018

                                                                   Date of Decision: 03.01.2022

 

Dharam Singh S/o Sh. Sukhram, age 58 years, R/o H.No.132, Sector 24-A, Chandigarh.                                                                                              

      …………....Complainant(s)

                                                Versus

1. The Managing Director, Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, Distt. SAS Nagar Mohali.

 

2. The Manager (Sales), Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, Distt. SAS Nagar Mohali.

 ..………........Opposite Party(s)

Complaint under Section 12/14 of Consumer Protection Act 1986

Quorum

Sh. Pushvinder Singh, President

Sh. Manjit Singh Bhinder, Member

Ms. Shivani Bhargava, Member

 

Present: Sh Pankaj Maini, counsel for the Complainant.

     Sh. Amit Sharma,, counsel for the OPs

Order By

Pushvinder Singh, President

 

1.                 The present complaint has been filed by the complainant(hereinafter referred to as ‘CC’) against the opposite parties (hereinafter referred to as “OPs”) with a prayer to direct the OPs to return the amount paid by him along with interest, cost and compensation.
2.                   The CC has alleged that he has booked the flat for his personal necessity to cater the need of his family consisting of 1BHK, BR No.1292 having the value of Rs.12,50,000/- (approx). The area of the flat was        450 sq. ft. (approx). The agreement was entered between the CC and OPs on 30.04.2011 and CC had paid Rs.3,12,500/- on different dates. According to the payment schedule given in the agreement entered on 30.04.2011 shows that the date of the final payment was 30.10.2012. According to the OPs the final payment has to be made by the customer/CC on 30.10.2012 i.e. the date of delivery. As per the settled preposition and presumed business tactics every builder receives the final payment when the possession will be handed over to the every respective customer. The CC has paid first instalment i.e. Rs.1,00,000/- on 22.04.2011, then Rs.2,00,000/- on 26.04.2011 and then Rs.12,500/- on 30.04.2011 (Ex.C-1). CC alleged that it is very pathetic on the part of the OPs that while executing the agreements with the CC, as well as other customers on different dates and other respective dates the OPs have given the date of possession in the end of year 2012 even when they were not having the permission from the GMADA authorities for setting up the residential colony in Sector 117 and Sector 74-A, SAS Nagar Mohali under the name of Sunny Basant. The OPs have the permission from the GMADA authorities on 19.05.2014 subject to getting the approval from the other statutory bodies. Once they have no permission from the statutory bodies to establish the residential colony then under what provision of law, the OPs have received the money from the CC which shows that the action of the OPs is totally malice with intention to defraud the hapless customers from their hard earned money. The OPs have adopted the unfair trade practice by alluring the customers to buy their flats even when they were not having the permission to accept the money from the customers and had given them the dates that the possession would be handed over to them by the end of October, 2012 to end of different years, as in the case of CC the date is 30.10.2012, which shows that the conduct of the OPs and their intention is to defraud the customers by giving them false assurance which could not be permitted by any course of law.
3.                 Notice of the complaint was given to the OPs. Sh. Amit Sharma, adv, counsel appeared on behalf of the OPs and filed the reply stating the complaint is not maintainable as the Hon’ble Court does not have territorial jurisdiction to try and entertain the present complaint. The CC has wilfully and intentionally suppressed and concealed material facts from this Hon’ble Court. As per the company policy and duly signed contract executed between the parties, OP is not liable to pay any interest in case the applicant does not fall under the EWS/LIC category of flat as per terms of the buyer’s agreement. He was supposed to submit an Income Certificate from the competent authorities to the effect that his income from all sources does not exceed Rs.3,00,000/- per annum. but he did not furnish the said certificate.  The complaint is hopelessly time-barred. The last payment was allegedly made on 30.04.2011. The period of limitation under the Consumer Protection Act is only 2 years whereas the complaint has been filed on 09.08.2018. The flat agreed to be sold was subject to furnishing of Income Certificate as well as Domicile Certificate in terms of Clause No.7 of the agreement to sell but the CC did not furnish the same. So, OP denied all other allegations of the complaint and prayed for dismissal of complaint with costs.
4.                        The CC in his evidence has furnished his affidavit in support of the complaint and reiterating the facts contained in the complaint as Ex.C-1/A and he also produced the copy agreement dated 30.04.2011 as Ex.C-1, Copy of permission letter dated 19.05.2014 as Ex.C-2, copy of letter dated 03.07.2017 as Ex.C-3.
5.                       We have heard counsel for the parties and have gone through the file.
6.               The CC has pleaded in the complaint and also deposed by way of affidavit that the CC got booked flats from the OPs for his own use and for the use of other family members. The CC paid an amount of Rs.3,12,500/- as booking amount out of total consideration of Rs.12,50,000/- and in this regard an agreement for sale was executed and the final payment is to be made on delivery of possession. The OPs did not deny the booking of flat in the name of CC and also did not deny the receipt of amount as alleged by the complainant. OPs have alleged that the complainant misrepresented the OPs that he belongs to Economical Weaker Section (EWS) and he was also supposed to submit an income certificate to the effect that his income from all sources does not exceed Rs.3,00,000/- per annum. But the CC did not produce the certificate and as such he did not fulfil the prerequisites for allotment of flat.
7.                    We find that in case the CC did not belong to the weaker section then the OPs should not had booked the flat in the name of the CC by receiving the amount. So the CC is entitled to receive the amount paid by him from the OPs as the OPs failed to even construct the flats. The act and conduct of OPs is a clear case of misrepresentation, which resulted in the injury and loss of opportunity to the CC. The builder is under the obligation to deliver the possession of flat within a reasonable period. The CC cannot be said to wait indefinitely to get possession of the flat booked. From the facts and evidence brought on record of the complaint it is clearly made out that OPs knew from very beginning that it has not complied with the provision of PAPRA(Punjab Apartment and Property Regulation Act & Rules) and would not be able to deliver possession within the stipulated period, thus by misrepresentation to the complainant to book the flat, due to which the CC has suffered mental agony and harassment. In these circumstances the CC is entitled to refund of the amount deposited by him along with interest and suitable compensation.

8.                As per Rule 17 of the “Punjab Apartment and Property Regulation Rules, 1995, framed under Section 45 of PAPRA, it has been provided as under: -

              “17. Rate of interest on refund of advance money upon cancellation of agreement. -The promoter shall refund full amount collected from the prospective buyers under sub section (1) of Section 6 together with interest thereon at the rate of 12% annum payable from the date of receipt of amount so collected till the date of re-payment. :"

9.              As a result of our aforementioned discussion, we accept the complaint of complainant and the OPs are directed to refund the amount of Rs.3,12,500/- to the CC along with simple interest @12% from the date of payment till the date of refund. The OPs are also directed to pay a sum of Rs.25,000/- as physical and mental harassment and litigation expenses. The compliance of this order be made by the OPs within a period of 60 days on receipt of certified copy of this order. The copy of this order be provided to the CC and OPs free of cost. The file be returned back to the District Consumer Commission, Mohali for consignment.

Announced:

03.01.2022

                                                    

                                                                             (Pushvinder Singh)

                                                                              President

 

 

(Manjit Singh Bhinder)

                                                                             Member

 

                                                                                  (Shivani Bhargava)

                                                                                  Member