State Consumer Disputes Redressal Commission
Narinder Singh vs M/S Bajwa Developers Ltd. on 16 March, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.180 of 2014
Date of Institution: 28.10.2011.
Date of Decision: 16.03.2016.
Narinder Singh S/o Sh. Chanan Singh #342, Phase-4, SAS Nagar,
Mohali (Punjab)-160059.
.....Complainant.
Versus
M/s Bajwa Developers Ltd., SCO 17-18, Sunny Enclave, Desumajra,
Kharar through its Managing Director Sh. J.S. Bajwa.
....Opposite Party
Consumer complaint under Section
17(1)(a)(i) of Consumer Protection Act,
1986
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri H.S. Guram, Member Present:-
For the complainant :Sh. Narinder Singh, Advocate in person For the opposite party :Sh. T.S. Khaira, Advocate ................................................ J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Complainant Narinder Singh has instituted this complaint under Section 17(1) (a) (i) of Consumer Protection Act 1986 (in short "the Act") against the opposite party (to be referred as OP) on the averments that he purchased plot no.650 (old no.587) from M/s Bajwa Developers Limited, Sunny Enclave, Desumajra for a sum of Rs.23,00,000/-, vide agreement dated 01.08.2011 executed between the parties. The entire sale price has been paid by the complainant to OP and no due certificate, vide letter BDL/KHR/NDC/2012- 13/2985 dated 14.06.2012 has been issued to complainant. The OP Consumer Complaint No.180 of 2014 2 company has not carved out plots, as per copy of unsigned plan of Sunny Enclave II (Aujla) given to complainant at the time of purchase of plot with the assurance that the same was likely to be approved soon by GMADA. The demarcation of plots resorted to revise the plan of Sunny Enclave II (Aujla) in future just to harm the financial interest of the complainant by depriving him of ownership of plot adjoining to park. This fact was brought to the notice of OP by the complainant that it has been selling the plots without getting plan approved from competent authority. The complainant purchased the above plot on 01.08.2011, but it was reported to complainant by the employees of OP that plan has been actually passed by Municipal Committee Kharar in August, 2014. The claim of M/s Bajwa Developers Limited OP with regard to approval of plan by Municipal Committee Kharar was not genuine. The OP also failed to procure approval of the above scheme from GMADA. The OP unilaterally cancelled the agreement dated 01.08.2011 by putting crossed lines on it on 14.06.2012 at the time of making payment of final installment. The cancellation of agreement on the part of OP was unjustified as the above obligation of procuring necessary approval from State Government (GMADA) was yet to be obtained by OP. The failure of OP to procure necessary permission, as required under Section 3(2)(c)(i) of PAPR Act 1995 attracted the provisions of Section 25(e) of the Act ibid with regard to cancellation of registration of the Company. It was informed to complainant that park adjoining to plot no.650 (old no.587) has been abolished of Sunny Enclave II ( Consumer Complaint No.180 of 2014 3 Aujla) and six new plots bearing numbers 649-A, 649-B, 650-A, 659-
A, 660-B and 660-A have been carved out in its place by OP. The act of OP rendered plot no.650 of complainant to be of low market. The OP defrauded the complainant. The complainant visited the office of OP on 24.08.2014 and asked to refund the amount of Rs.23,00,000/-. The OP apprised that amount would be refunded on usual terms after deducting the 10% of the total amount, but complainant refused to accept the amount o Rs.20,70,000/-, as there was no fault of complainant, as fault squarely lies with OP for wrongly abolishing the park. The OP committed deceit by abolishing the park adjoining to plot no.650 of complainant by carving out six new plots in its place. This is a fraud on the part of OP and also deficiency in service. The complainant has, thus, prayed that OP be directed to refund the amount of Rs.23,00,000/- alongwith interest @10% per annum and he also prayed for compensation of Rs.50,000/- for mental harassment.
2. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant. It is averred in preliminary objections that complaint is barred by time and is not maintainable under Section 24-A of the Act. The complainant is not consumer as defined under Section 2(1)(d) of the Act. The complainant purchased the plot for investment and for commercial purposes and is not a consumer. It is further averred that matter in hand can be decided by Civil Court in a suit only, as it is based on agreement of sale. It is further averred that matter cannot be Consumer Complaint No.180 of 2014 4 adjudicated before Consumer Forum. The complainant is alleged to be frivolous and vexatious. The complaint is alleged to be estopped by his own act and conduct from filing the complaint. The Consumer Forum has no jurisdiction to try and decide the complaint. On merits, OP contested the complaint of the complainant. It is averred in written reply that complainant has not disclosed at which place exactly the said alleged plot was purchased by him from OP. The complainant booked the plot for the purpose of investment only. The complaint is barred by time. It is specifically denied that any unsigned plan was handed over to complainant by OP at the time of purchase of plot. It is vehemently denied by OP that the said plot was situated adjoining to part. There is no averment in agreement between the parties and No Due Certificate that the said alleged plot adjoined to a park. The complainant made false and baseless allegations. It is pleaded that correct facts are that agreement of sale was got cancelled by complainant himself. No due certificate was issued to complainant on 14.06.2012 and then he requested OP to cancel the agreement to save stamp duty on a sale deed. It is further pleaded that complainant never visited the office of OP. Annexure 4 was never issued by OP. The OP is within its right to get the layout of its project, plots and parks, revised and changed in accordance with new density norms, statutory rules and by laws and commerciality of the project. The alleged revision in the layout plan has been duly sanctioned by the competent authory. It is further pleaded that averment of complainant that OP offered the refund of Consumer Complaint No.180 of 2014 5 money is incorrect. The complainant never approached the OP in this regard. The OP prayed for the dismissal of the complaint.
3. The complainant tendered in evidence documents and affidavit Ex.C-I to Ex.C-X and closed the evidence. As against it, OP tendered in evidence affidavit of Jarnail Singh Bajwa Ex.OP-A and closed the evidence.
4. We have heard the complainant in person and counsel for OP and also examined the record of the case. The complainant placed reliance upon Ex.C-I the copy of agreement. Ex.C-II, the copy of no due certificate issued by the OP. Ex.C-III, the un-revised plan showing the park adjoining to plot no.587/650. Ex.C-IV, the revised plan showing the plots in place of park adjoining to the plot of complainant. Ex.C-VI is the site plan on the record. Ex.C-VII is the copy of information given under RTI Act by OP to complainant. Ex.C-VIII is the cutting of news paper. Ex.C-IX is the rejoined filed the complainant. Ex.C-X is the affidavit of the complainant. The OP placed reliance upon affidavit of Sh. Jarnail Singh Bajwa, Managing Director of OP. The vehement submission raised before us by OP is that complainant is not a consumer. We have primarily examined this point as to whether the complainant falls within the definition of consumer under Section 2(1)(d) of Consumer Protection Act, 1986 or not? The submission of counsel for OP is that complainant has not specifically pleaded in the complaint that he availed of the services or goods for consideration paid by him exclusively for the Consumer Complaint No.180 of 2014 6 purpose of his livelihood by means of self employment. From the drift of the complaint and the evidence on the record, we find that complainant entered into an agreement for purchase of plot in the residential area. Once the plot is in the residential area, primarily it can be safely inferred that it was purchased for residential purpose alone, otherwise there is no question of purchasing of non-residential premises in the residential area. The reliance of complainant is on Ex.C-III and Ex.C-IV, the photostat copies of unsigned plans. Park has been shown in un-revised plan Ex.C-III, whereas it has been abolished in subsequent plan Ex.C-IV by OP. Out attention has been drawn to law laid down by the Apex Court in "Ganesh Lal Vs. Shyam" 2014(14)SCC-773, wherein it has been held by the Apex Court that dispute between the parties regarding sale of plot and land virtue of an agreement. Appellant had raised the contention that the Consumer Forum had no jurisdiction to try the matter and a claim for specific performance of the agreement would lie only before the Civil Court and not before the District Consumer Redressal Forum. It was held that jurisdiction of District Consumer Forum under Section 11 of Act is to entertain a complaint primarily it is with respect to the deficiency in making available the goods and services. We find that cited authority would not be applicable in this case. The complainant entered into agreement for purchase of plot with OP with regard to serial no.587 (old number) at Sunny Enclave. The complainant booked the plot with OP. Once the agreement of sale was executed between the parties with regard to plot at serial no.587, then OP Consumer Complaint No.180 of 2014 7 could not have shifted the same subsequently. The plot could have been sold after taking the proper prior approval from the authorities by the builder in this case. Admittedly, it is proved on record that the Municipal Committee Kharar passed the plan in question in August, 2014 only. The agreement of sale was executed on 01.08.2011 by OP with complainant, when there was no approval by Municipal Committee Kharar for the above plan. The OP entered into agreement of sale with complainant at the time when it was not approved by the Municipal Committee Kharar in the year 2011. We find that in agreement of sale of plot at serial no.587 was agreed to be sold only as shown in the site plan, which was supplied to complainant by OP, when agreement of sale was executed vide Ex.C-I. Vide Ex.C-III unrevised plan, the park has been shown in the adjoining plot at serial no.587/650.This unsigned plan was supplied to complainant by OP being part of layout, when complainant entered into agreement of sale with OP on the assurance that park adjoined the plot. In the subsequent plan vide Ex.C-IV, six new plots bearing numbers 649-A, 649-B, 650-A, 659-A, 660-B and 660-A have been carved out by OP in place of park. Had the true state of affairs been told by OP to complainant, the complainant would not have entered into agreement of sale Ex.C-1 with OP at all? The OP sold the plot to complainant, when there was not permission granted by the Municipal Committee Kharar in the year 2011. The permission was granted by the Municipal Committee Kharar in year 2014 only much time thereafter. The OP arbitrarily changed the location of the Consumer Complaint No.180 of 2014 8 adjoining park and converted it into different separate plots. The complainant would not have entered into the agreement had true state of affairs been conveyed to him.
5. The definition of service as provided in Section 2 (o) of the Act is made available to potential [users and includes, but not limited to the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction and so on. Housing construction of the plot has been specifically covered under Section 2(o) of the Act defined in service. We, thus, hold that OP rendered deficient service to complainant as observed above.
6. The dispute between the parties pertains to 10% deduction of amount allegedly to be charged by OP from complainant as per provision of Clause 10 of the Agreement. We find that since there is no fault on the part of complainant and OP of its own removed the park and carved out the other plots in the place of park, hence act of OP is deficient service and not less than that.
7. In the light of our above discussions, we hold that OP is not entitled to deduct 10% of the amount deposited with it by the complainant in this case, because there in no fault of the complainant in this regard. The OP sold the plot when it was unapproved by the Municipal Committee Kharar and later OP removed the park adjoining to the plot of complainant by converting it into different plots by changing its locale. In the circumstances of the Consumer Complaint No.180 of 2014 9 case, the complaint of the complainant is accepted by directing OP to refund the amount of Rs.23 lakhs alongwith interest @10% per annum to complainant from the date of deposit till actual payment. The complainant shall also be entitled to compensation of an amount of Rs.30,000/- for mental harassment and Rs.10,000/- as costs of litigation. These amounts shall be payable by the OP to complainant within 45 days from the date of receipt of certified copy of the order.
8. Arguments in this complaint were heard on 02.03.2016 and the order was reserved. Now the order be communicated to the parties.
9. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S. GURAM) MEMBER March 16, 2016.
(MM)