State Consumer Disputes Redressal Commission
Jyoti vs M/S Bajwa Developers Ltd. on 8 June, 2020
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.2 of 2020
Date of institution : 07.01.2020
Reserved On : 01.06.2020
Date of decision : 08.06.2020
Jyoti wife of Sh. Rajwant Singh, aged about 30 years, Resident of
House No.344, Milk Colony, Dhanas, Chandigarh.
....Complainant
Versus
1.M/s Bajwa Developers Limited, having its Office at Sunny Business Centre, Sector 124, Sunny Enclave, Tehsil Kharar, District S.A.S. Nagar, Mohali, through its Managing Director, Sh. Jarnail Singh Bajwa.
2. Jarnail Singh Bajwa son of Sh. Bishan Singh Bajwa, Managing Director, M/s Bajwa Developers Limited, having its Office at Sunny Business Centre, Sunny Enclave, Sector 124, District S.A.S. Nagar, Mohali.
E-mail ID:[email protected] ....Opposite Parties
3. H.D.F.C. having its Office at SCO 142, 1st Floor, Sector 5, Mansa Devi Complex, Panchkula.
....Proforma Opposite Party Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued By:
For the complainant : Sh. Ravi K. Matoo, Advocate For OPs No.1 & 2 : None For OP No.3 : None Consumer Complaint No.2 of 2020 2 JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), against the opposite parties, seeking following directions to opposite parties No.1 & 2:
i) to refund the amount of ₹14,52,737/-, along with interest at the rate of 12% per annum;
ii) to refund the amount of ₹22,560/-, which was paid as registration fee, mutation fee, pasting fee, PLRS Facilitation Charges, Infrastructure Development Charges along with interest at the rate of 12% per annum;
iii) to refund the amount of ₹58,110/-, which was spent on purchase of stamp papers, along with interest at the rate of 12% per annum;
iv) to refund the amount of ₹1,58,505/-, which was paid by the complainant to opposite party No.3 towards EMIs of loan amount, as mentioned in payment schedule Ex.C-7. The exact amount of interest paid by the complainant would have to be calculated until the opposite parties No.1 & 2 actually refund the amount;
v) to pay compensation of ₹2,00,000/- on account of mental and physical harassment suffered by the complainant due to the unfair trade practice adopted by opposite parties No.1 & 2;
vi) to pay ₹55,000/- towards litigation expenses. Consumer Complaint No.2 of 2020 3
vii) It has also been prayed that the opposite parties be restrained from adopting unfair trade practice; and/or
viii) Any other order, interim or final, as may be deemed fit to meet the ends of justice, may be passed.
Facts of the Complaint
2. Brief facts, as set out in the complaint, are that opposite parties No.1 & 2 carry on the business of building and developing housing projects and sale of plots in Sector 123 to 125, falling in Tehsil Kharar, District S.A.S. Nagar, Mohali. The complainant wanted to build a house within the vicinity of Chandigarh. Being allured by the representations made by them, the complainant booked a residential plot measuring 101.59 sq.yds. in their project namely "Global City", situated in village Harlalpur on 19.02.2018 by paying ₹50,000/- as booking amount, regarding which Agreement to Sell was executed on 04.08.2018, when the complainant paid a further sum of ₹1,50,000/-. The complainant obtained loan from proforma opposite party No.3- Housing Development Finance Corporation Ltd., to whom opposite party No.2 issued letter granting permission to mortgage the said plot. Opposite party No.3 issued approval letter dated 19.07.2018, vide which loan amount was disbursed under Loan Account No.633895720. On 17.09.2018, opposite party No.3 issued a cheque of ₹12 lac in favour of opposite party No.1 and on 26.10.2018, opposite party No.2 received the balance amount of ₹52,737/-. On receipt of full and final sale consideration, Sale Deed of the said plot was executed in favour of the complainant on 26.10.2018. In November, 2018, the Consumer Complaint No.2 of 2020 4 complainant, along with her husband, visited the office of opposite parties No.1 & 2 and asked them to supply other documents and complete the formalities, enabling her to raise construction on the plot. However, their officials asked her to wait till issuance of "No Due Certificate"; which was issued on 10.10.2019 after long delay and heated arguments. Thereafter, the complainant and her husband visited the site of the plot for demarcation and laying foundation, but they shocked to see that about 5-7 persons from village Harlalpur came there and did not allow the complainant to demarcate the plot and lay foundation. The complainant immediately approached office of opposite parties No.1 & 2 and narrated entire story to Ms. Prakriti, Sales Officer, but she and other officials refused to listen to her. Even opposite party No.2 also refused to meet the complainant on one pretext or the other. In the last week of December, 2019, when the complainant visited the site of the plot, a board was affixed there, stating "The Land Does Not Belong to Bajwa Developers Ltd.". Thus, due to fault on the part of opposite parties No.1 & 2, the complainant could not construct her home on the plot for use of her family. The complainant had been paying EMIs for last about one year and she paid 15 EMIs of ₹10,567/- commencing from 01.10.2018 to 01.01.2020, totaling ₹1,58,505/-, out of which an amount of ₹1,30,950/- was paid as interest. However, due to the plot having no clear title, the complainant suffered mental agony, harassment and financial loss. The aforesaid act and conduct of opposite parties No.1 & 2 amount to deficiency in service. Hence, the present complaint. Consumer Complaint No.2 of 2020 5 Defence of the Opposite Parties
3. Upon notice, the opposite parties appeared through counsel. Opposite parties No.1 & 2 filed reply to the complaint, but no reply was filed on behalf of opposite party No.3. In the reply filed on behalf of opposite parties No.1 & 2, preliminary objections were raised that the complainant does not fall under the definition of 'consumer', as defined in the Act, as she had invested in the plot to earn quick-bucks. This Commission has no pecuniary jurisdiction, as the relief claimed is below ₹20 lac. On merits, it was pleaded that the complainant visited the office of opposite party No.1 and expressed interest in a plot measuring 101.59 sq.yds., total sale consideration of which was ₹14,52,737/-. The complainant paid a sum of ₹50,000/- at the time of booking of the plot on 19.02.2018 and later on ₹1,50,000/- when, the Agreement to Sell was executed on 04.08.2018. Facts qua obtaining of loan by the complainant, payment of ₹12 lac by opposite party No.3 to opposite parties No.1 & 2 and execution of Sale Deed of the plot are stated to be matter of record. It pleaded that the complainant did not visit the office of opposite party No.1 in November, 2018. It was further pleaded that demarcation is done by the office of opposite party No.1. There is no reason for the complainant to go alone and find out the plot by demarcating it at the spot. The authorized officials of opposite party No.1 are responsible for delivering the possession of the plot, after demarcating the same at the spot. It appears that the complainant has trespassed into the land of some other persons. The so-called board is not laid on the plot of the complainant, but the same Consumer Complaint No.2 of 2020 6 is laid by the persons in the land, which is under their ownership. Opposite parties No.1 & 2 never refused to meet the complainant. There is a procedure for delivery of possession and demarcation of plot, which has to be followed by each consumer. The complainant is supposed to apply for demarcation and delivery of possession of the plot in the office of opposite party No.1, instead of insisting on meeting opposite party No.2. The plot sold to the complainant is free from all encumbrances and is the property of opposite party No.1. Opposite parties No.1 & 2 have already parted with the ownership rights of the plot, in question, in favour of the complainant. The complainant is at liberty to take the possession of plot, by moving an application for demarcation in the office of opposite party No.1. It was further pleaded that the reliefs claimed by the complainant are not covered within the definition as provided under Section 14 of the Act and the same are grantable by the Civil Court only. The relationship of consumer and service provider between the parties already come to an end, since the Sale Deed of the plot, in question, has already been executed in favour of the complainant. All other allegations levelled in the complaint were denied and it was prayed that the complaint be dismissed.
Evidence of the Parties
4. To prove her claim, the complainant filed her own affidavit, along with copies of documents i.e. Agreement to Sell dated 04.08.2018 Ex.C-1, letter regarding permission to mortgage the plot Ex.C-2, letter dated 19.07.2018 Ex.C-3, Sale Deed dated 26.10.2018 Consumer Complaint No.2 of 2020 7 Ex.C-4, No Due Certificate Ex.C-5, photographs Ex.C-6 and Amortization Schedule of loan EMI Ex.C-7. In support of their defence, opposite parties No.1 & 2 filed self attested affidavit of Sh. Baldev Singh Bajwa only.
Contentions of the Parties
5. I have heard learned counsel for the complainant, as none appeared on behalf of the opposite parties. Opportunity was granted to the opposite parties to file written arguments within three days, but no written arguments have been filed on behalf of the opposite parties However, I have gone through the pleadings of the opposite parties and record carefully.
6. Learned counsel for the complainant argued on the lines of the complaint. It was further contended that the complainant has paid the entire sale price of the plot, by taking loan from opposite party No.3, for which opposite parties No.1 & 2 issued the "No Due Certificate" dated 10.10.2019 Ex.C-5. Sale Deed of the plot has also been executed on 26.10.2018. However, they have no clear title over the plot, in question. They failed to give demarcation of the plot and a board is affixed in the said plot, stating ""The Land Does Not Belong to Bajwa Developers Ltd.". When the complainant visited the site for demarcation and laying foundation in the plot, some persons did not allow her to do so. The matter was brought to the notice of opposite parties No.1 & 2, but to no effect. Due to not having demarcation of the plot, the complainant could not raise construction over the plot for building her home. The complainant suffered mental harassment and Consumer Complaint No.2 of 2020 8 financial loss and the purpose of taking loan became useless for want of clear title of the plot, in question. Therefore, the complaint is liable to be allowed and the complainant is entitled to all the reliefs as prayed for.
Consideration of Contentions
7. I have given my thoughtful consideration to the contentions raised by the learned counsel for the complainant.
8. Admittedly, the complainant purchased the plot, in question, from opposite parties No.1 & 2, vide Agreement to Sell dated 04.08.2018 Ex.C-1 for sale consideration of ₹14,52,737/-. As per Clause (i.) under head "Possession", it is mentioned that the possession of the plot was to be delivered on or before 24 months from the date of execution of the agreement. That period has not yet expired. The complainant got approved loan of ₹18 lac from opposite party No.3, as per letter dated 19.07.2018 Ex.C-2. The entire sale consideration of the plot was paid by the complainant, as is clear from "No Due Certificate" dated 10.10.2019, Ex.C-5, issued by opposite parties No.1 & 2. Thereafter, Sale Deed, Ex.C-4, of the plot, in question, was also executed in favour of the complainant on 26.10.2018.
9. The grievance of the complainant is that when she, along with her husband, visited the site of the plot to take demarcation and lay foundation stone, some persons of village Harlalpur stopped them from doing so and later on a board was found affixed on the site of the Consumer Complaint No.2 of 2020 9 plot, stating that the same was not the property of Bajwa Developers. In support of this fact, she produced photographs Ex.C-6 (colly.).
10. On the other hand, the stand of opposite parties No.1 & 2 is that the plot sold to the complainant is having clear title and the same is free from all encumbrances. After execution of Sale Deed, Ex.C-4, on 26.10.2018, no relationship of consumer and service exists between the parties. It is also their plea that the demarcation is given only by the authorized officials of opposite parties No.1 & 2 and the complainant can take the demarcation/possession of plot, by moving an application for demarcation in the office of opposite party No.1.
11. It needs to be mentioned that the complainant is not praying for delivery of possession or demarcation of the plot, in question. Rather, she is seeking refund of the entire amount deposited by her towards the sale consideration of the plot, besides stamps charges, registration charges, EMIs etc. As already observed above, the complainant has already got executed the Sale Deed Ex.C-4 of her plot on 26.10.2018, without raising any kind of objection or protest. She did not raise any issue at that time regarding non-demarcation of the plot or affixing of the alleged board at the site. With the execution of Sale Deed, the possession of the plot, in question, is deemed to have been delivered. From the photographs Ex.C-6 (colly.), it is not clear as to in which plot, the said board is affixed. So far as the complaint against opposite party No.3 is concerned, the complainant has taken loan from it for making payment of price of the plot and she is liable to repay the loan amount, as per loan agreement. No relief Consumer Complaint No.2 of 2020 10 has been claimed against it. In such circumstances, no case for refund of the amount deposited by the complainant towards sale consideration of the plot, stamps charges etc. is made out. Hon'ble National Commission in case T.K.A. Padmanabhan v. Abhiyan CGHS Ltd. 2016 (2) CPJ 273 held in Para No.10 as follows:
"10. It is an admitted fact that petitioner had taken the physical possession of the flat on 27.02.2004, though there was delay of 11 months in giving possession on behalf of the respondent. However, the Consumer Complaint was filed on 08.08.2005, that is, about one and half years, after petitioner got possession. There is nothing on record to show that at the time of taking possession of the flat, petitioner had lodged any protest with regard to delay or took conditional possession. When petitioner had taken the possession of the flat on 27.02.2004, unconditionally and without any protest, thereafter he ceased to be a consumer. The agreement executed between the parties comes to an end. Thus, on the date when Consumer Complaint was filed, there was no privity of contract between the parties. As such, the Consumer Complaint on the face of it is not maintainable.
12. Similarly, in Revision Petition No.3338 of 2007 (Harpal Arya v. Housing Board Haryana, Estate Manager, Housing Board, Sector 6, Panchkula) decided on 04.01.2016, the Hon'ble National Commission held in Para-15 as under:
"15. Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further, as per possession certificate, it is clear that petitioner had taken the possession without any pre-conditions. Now, after getting the possession, it does not lie in the mouth of the petitioner to state that house is not in a habitable condition. Once petitioner had taken the possession with open eyes and without any pre-conditions, he cease to be a consumer. The Consumer Complaint was filed on 25.05.2005, that is, after about seven months of taking over of possession of the house. Therefore, on the face of it, the petitioner was not a 'consumer' at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone."Consumer Complaint No.2 of 2020 11
13. In view of the ratio of aforesaid authorities, the complainant, after taking possession of the plot by virtue of execution of Sale Deed Ex.C-4 on 26.10.2018, without raising any kind of objection, ceased to be the consumer of opposite parties No.1 & 2 and the relationship of consumer and service provider came to an end.
14. Accordingly, the complaint is dismissed. However, the complainant is at liberty to get demarcation of the plot, in question, by moving application in the office of opposite party No.1.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT June 08, 2020.
(Gurmeet S)