State Consumer Disputes Redressal Commission
Bajwa Developers Limited vs Himani Wadhwa on 20 November, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
1. First Appeal No.775 of 2017
Date of institution : 14.11.2017
Date of decision : 20.11.2017
1. Bajwa Developers Limited, SCO 17-18, Sunny Enclave, Desu
Majra, District SAS Nagar, Mohali, through its Managing
Director.
2. The Manager (Sales), Bajwa Developers Limited, SCO 17-18,
Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.
.......Appellants-Opposite Parties
Versus
Himani Wadhwa w/o Shri Munish Wadhwa, resident of House
No.149, Sector 19-A, Chandigarh.
........Respondent-Complainant
2. First Appeal No.776 of 2017
Date of institution : 14.11.2017
Date of decision : 20.11.2017
1. Bajwa Developers Limited, SCO 17-18, Sunny Enclave, Desu
Majra, District SAS Nagar, Mohali, through its Managing
Director.
2. The Manager (Sales), Bajwa Developers Limited, SCO 17-18,
Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.
.......Appellants-Opposite Parties
Versus
Ravinder Kumar s/o Late Shri Avinash Lal, resident of House
No.149, Sector 19-A, Chandigarh.
........Respondent-Complainant
3. First Appeal No.777 of 2017
Date of institution : 14.11.2017
Date of decision : 20.11.2017
First Appeal No.775 of 2017 2
1. Bajwa Developers Limited, SCO 17-18, Sunny Enclave, Desu
Majra, District SAS Nagar, Mohali, through its Managing
Director.
2. The Manager (Sales), Bajwa Developers Limited, SCO 17-18,
Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.
.......Appellants-Opposite Parties
Versus
Dimple Wadhwa s/o Shri H.L. Wadhwa, resident of House No.149,
Sector 19-A, Chandigarh.
........Respondent-Complainant
First Appeals against the different orders
dated 27.9.2017 of the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the appellants : Shri Manoj Vashistha, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
All the above mentioned three First Appeals have been preferred against the different orders dated 27.9.2017 passed by District Consumer Disputes Redressal Forum, Sahibzada Ajit Singh Nagar (Mohali) (in short, "District Forum") and are being decided by this common order, as common questions of law and facts, except some minor variations, here and there, are involved in these First Appeals. The facts are taken from First Appeal No.775 of 2017.
2. It would be apposite to mention at the outset that hereinafter the parties will be referred as have been arrayed before the District Forum.
First Appeal No.775 of 2017 3Facts of the Complaint:
3. Brief facts, as stated in the complaint, are that the complainant purchased one BHK Flat No.BR (360) 1360 in F21, measuring 450 square feet (approximately) Sector 74A, 117, SAS Nagar (Mohali) for a total consideration of ₹12,50,000/- from the opposite parties, vide Agreement to Sell dated 17.4.2011. The complainant had paid a total sum of ₹6,87,500/- through instalments to the opposite parties. The final payment was to be paid at the time of delivery of possession of the flat on 7.2.2013. This date was mentioned by cutting the earlier date of 7.11.2012 in the said Agreement. It is further averred that at the time of executing the Agreement with the complainant and other customers, the opposite parties were not having the permission from GMADA for setting up the residential colony under the name of "Sunny Basant" as the opposite parties received the permission from GMADA on 19.5.2014 subject to receiving approvals from other statutory bodies. Neither the possession was offered to the complainant nor the opposite parties demanded payment of further instalments from him. As the opposite parties have not started the work at the site, they started extending the date regarding handing over the possession of the flat. Lastly the opposite parties extended the date till 31.3.2015. As the opposite parties are not in a position to hand over the possession of the Flat, the complainant has sought refund of the same. Hence, this complaint was filed before the District Forum for issuance of directions to the opposite parties to refund the deposited amount of First Appeal No.775 of 2017 4 ₹6,87,500/- along with interest @ 18% per annum from the dates of payment till realization and to pay ₹3,00,000/- as compensation for mental agony and harassment and ₹2,90,000/-, as punitive damages.
Defence of the opposite parties:
3. In the reply the opposite parties took preliminary objections to the effect that the District Forum has no jurisdiction to entertain and try the complaint as the transaction between the parties is purely sale agreement. The complainant has committed default in payment of instalments. As per clause 3 of the Agreement, the amount deposited by the complainant is liable to be forfeited. The complaint has been filed without any cause of action. The complainant after deposit of first instalment failed to deposit the left over instalments and the Agreement in fact stood rescinded on 24.7.2015 as the last payment was received on 25.7.2012. By virtue of Section 27 of the Limitation Act, 1963, the rights of the complainant in the flat in question have already been extinguished. On merits, the opposite parties pleaded that no assurance regarding approvals of the flat was given by them. The complainant was made aware that the approvals of the project are yet to be received and he entered into Agreement with complete knowledge that in case the approvals are not received, then he would be entitled to refund only and no interest/compensation will be given. The opposite parties obtained the CLU from GMADA and work is in progress. The possession will be handed over as and when the construction is complete. The First Appeal No.775 of 2017 5 earnest money has been forfeited as the Agreement stood rescinded on 26.5.2015. Denying any deficiency in service or adoption of unfair trade practice on their part a prayer for dismissal of the complaint was made.
Finding of the District Forum:
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf allowed the complaint, vide order dated 27.9.2017 with the following directions to the opposite parties:-
(a) to refund the deposited amount of ₹6,87,500/- to the complainant along with interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund.
(b) to pay to the complainant compensation of ₹25,000/- on account of mental agony due to the negligent act of the opposite parties; and
(c) to pay ₹10,000/-, as litigation costs.
Aggrieved by the same, the present appeal has been filed by the opposite parties for setting aside the impugned order.
5. We have heard the learned counsel for the appellants/opposite parties and have carefully gone through the records of the case. Contentions of the Parties:
6. It has been submitted by the learned counsel for the opposite parties that the District Forum committed an illegality while allowing First Appeal No.775 of 2017 6 the complaint by ignoring the evidence produced on the record; from which it stands proved that the complainant himself was at fault in not depositing the instalments as per the Payment Schedule and as per clause 3 of the Agreement the amount deposited by the complainant is liable to be forfeited. It has been further argued that by virtue of Section 27 of the Limitation Act, 1963, the rights of the complainant have already been extinguished. Moreover, no assurance regarding approvals of the flat was given by the opposite parties and the complainant was made aware that the approvals of the project are yet to be received. The earnest money has been forfeited as the agreement stood rescinded on 26.5.2015. Therefore, it cannot be held that there was any deficiency in service on the part of the opposite parties or that they adopted unfair trade practice. The fault, if any, was on the part of the complainant, who failed to deposit all the instalments as per Agreement. He prayed that the order passed by the District Forum is illegal and erroneous and the same is liable to be set aside.
Consideration of Contentions:
7. We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellants/opposite parties before us.
8. At the outset it is pertinent to mention that identical matters have already been decided by this Commission in the following cases:
First Appeal No.775 of 2017 7
i) Consumer Complaint No.211 of 2015 (Manjit Singh (since deceased) through his LRs v. M/s Bajwa Developers Ltd.) decided on 16.3.2017;
ii) Consumer Complaint No.288 of 2016 (Gagandeep Singh v.
M/s Bajwa Developers Ltd. and anr.) decided on 2.3.2017;
iii) Consumer Complaint No.240 of 2016 (Sneh Sood v. M/s Bajwa Devlopers Ltd.) decided on 23.2.2017;
iv) Consumer Complaint No.188 of 2016 (Amarjit Singh v. J.S. Bajwa, Managing Director, M/s Bajwa Developers Ltd. and anr.) decided on 23.2.2017;
v) Consumer Complaint No.203 of 2016 (Kuldeep Sharma v.
M/s Bajwa Developers Ltd. and anr.) decided on 26.7.2017;
vi) Consumer Complaint No.9 of 2017 (Ajay Sharma and another v. Bajwa Developers Ltd. and anr.) decided on 23.8.2017;
vii) Consumer Complaint No.10 of 2017 (Rajnish Sood v. Bajwa Developers Ltd. and anr.) decided on 23.8.2017;
viii) Consumer Complaint No.301 of 2016 (Surinder Pal Singh vs. M/s Bajwa Developers Ltd. and another) decided on 4.10.2017;
ix) Consumer Complaint No.43 of 2017 (Amit Baddhan v. M/s Bajwa Developers Ltd.) decided on 3.10.2017;
x) First Appeal No.753 of 2016 (M/s Bajwa Developers Ltd. v.
Dr. Manjit Kaur Sharma) decided on 22.2.2017; First Appeal No.775 of 2017 8
xi) First Appeal No.754 of 2016 (M/s Bajwa Developers Ltd. v.
Pooja Khanna) decided on 22.2.2017;
xii) First Appeal No.755 of 2016 (M/s Bajwa Developers Ltd. v.
Rajan Vashishat) decided on 22.2.2017;
xiii) First Appeal No.860 of 2016 (Keshav Kumar v. M/s Bajwa Developers Ltd.) decided on 11.4.2017;
xiv) First Appeal No.861 of 2016 (Harleen Kaur v. M/s Bajwa Developers Ltd.) decided on 11.4.2017;
xv) First Appeal No.862 of 2016 (Gurdev Kaur v. M/s Bajwa Developers Ltd.) decided on 11.4.2017;
xvi) First Appeal No.863 of 2016 (Sarabjit Kaur v. M/s Bajwa Developers Ltd.) decided on 11.4.2017;
xvii) First Appeal No.922 of 2016 (Amit Kumar v. M/s Bajwa Developers Ltd.) decided on 11.4.2017; and xviii) First Appeal No.923 of 2016 (Devraj Chandel v. M/s Bajwa Developers Ltd.) decided on 11.4.2017.
9. The matter in the present appeals is squarely covered by the orders passed in above said cases, so we intend to decide the present appeals in view of orders passed in above said cases.
10. According to the complainant, he purchased the flat in question from the opposite parties for a total sale consideration of ₹12,50,000/- and paid a sum of ₹6,87,500/- in all. The payment so made by the complainant has been admitted by the opposite parties in their written statement. The possession of the flat, complete in all respects, was to be delivered to the complainant upto 7.2.2013, First Appeal No.775 of 2017 9 which was extended to 31.3.2015 by the opposite parties. Since there was no development at the site and there was no possibility of completion of the project or delivery of possession of the flat in question in near future, therefore, the complainant stopped making further payments and sought refund of the amount.
11. The opposite parties have not annexed any document showing ownership of the property over which the project was to be established nor the sanction of the competent authority with respect to the land has been annexed on record. It appears that without owning the property, the flats in the said project were sold, which is a clear unfair trade practice and sheer violation of PAPRA.
12. The amount has been utilized by the opposite parties, which is trust money, for earning profits in their business. However, the complainant was ready to pay the remaining instalments but there was no development at the site. There is no fun in first paying the instalments and thereafter seeking refund of the same. Since there was no development at the site, therefore, the complainant was well within his rights not to pay further instalments. The opposite parties have also violated the provisions of the Punjab Apartment and Property Regulation Act (in short, "PAPRA") by not obtaining the necessary sanctions/permissions from the competent authority before launching the scheme and collecting money from the people. Even the land was also not in their name when the project was launched. Therefore, the opposite parties violated Sections 3, 5, 9 and 12 of PAPRA.
First Appeal No.775 of 2017 10
13. The opposite parties 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. They are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the Agreement.
14. By executing the Agreement to Sell Ex.C-1 and receiving the amount more than ₹25,000/- the opposite parties violated the provisions of PAPRA. They were not competent to execute the Agreement in respect of the flat and to receive different amounts. These acts on the part of the opposite parties amount to adoption of unfair trade practice. In these circumstances the complainant is entitled to the refund of the amount so paid by him. The opposite parties cannot withhold his amount and is liable to refund the same along with interest.
15. The C.P. Act came into being in the year 1986. It is one of the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by the opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainant has made payment of substantial amount to the opposite parties with the hope to get the possession of the flat in a First Appeal No.775 of 2017 11 reasonable time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and construction in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested her money with the opposite parties, she would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. The builder is under obligation to deliver the possession of the flat within a reasonable period. The complainant cannot be made to wait indefinitely to get possession of the flat booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. builder knew from the very beginning that they had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to book the flat, due to which the complainant has suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainant is a deposit held by the opposite parties in trust of complainant and it should be used for the purpose of constructing the flats, as mentioned in Section 9 of PAPRA. The builder is bound First Appeal No.775 of 2017 12 to compensate for the loss and injury suffered by the complainant for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission.
16. In view of our above discussion, we do not find any infirmity or perversity in the impugned order passed by the District Forum. There is no merit in the present appeal and the same is hereby dismissed in limine.
17. The appellants/opposite parties had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to the parties. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
First Appeal No.776 of 2017:
18. In this case the complainant booked 1 BHK Flat No.BR (361) 1361 having area of 450 square feet in F21, Sector 74-A, 117, Mohali for total sale consideration of ₹12,50,000/- and paid a total sum of ₹6,87,500/- to the opposite parties. Rest of the averments are same as have been made in FA No.775 of 2017. The opposite parties also made similar averments in their reply as made in FA No.775 of 2017. Similar arguments have been raised by the learned First Appeal No.775 of 2017 13 counsel for the appellants/opposite parties as have been raised in FA No.775 of 2017.
19. In view of the findings recorded in FA No.775 of 2017, this appeal (FA No.776 of 2017) is also dismissed in the same terms in limine.
20. The appellants/opposite parties had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to the parties. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
First Appeal No.777 of 2017:
21. In this case the complainant booked 1 BHK Flat No.BR (359) 1359 having area of 450 square feet in F21, Sector 74-A, 117, Mohali for total sale consideration of ₹12,50,000/- and paid a total sum of ₹6,88,000/- to the opposite parties. Rest of the averments are same as have been made in FA No.775 of 2017. The opposite parties also made similar averments in their reply as made in FA No.775 of 2017. Similar arguments have been raised by the learned counsel for the appellants/opposite parties as have been raised in FA No.775 of 2017.
First Appeal No.775 of 2017 14
22. In view of the findings recorded in FA No.775 of 2017, this appeal (FA No.777 of 2017) is also dismissed in the same terms in limine.
23. The appellants/opposite parties had deposited a sum of ₹25,000/- at the time of filing of the appeal. This amount, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to the parties. The complainant may approach the District Forum for the release of the above amount and the District Forum may pass the appropriate order in this regard.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER November 20, 2017 Bansal