State Consumer Disputes Redressal Commission
M/S Bajwa Developers Ltd. vs Brig Kishore on 8 February, 2016
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.1093 of 2015
Date of institution : 05.10.2015
Date of decision : 08.02.2016
Bajwa Developers Limited, Sunny Enclave, Desu Majra, Sector 127,
Tehsil Kharar, District Mohali through its Managing Director Shri
Jarnail Singh Bajwa.
.......Appellant-Opposite Party
Versus
Brij Kishore son of Shri Data Ram c/o Devdatta Tyagi, resident of 79,
New Colony-1, Khuda Lahora, UT, Chandigarh.
........Respondent-Complainant
First Appeal against the order dated
29.7.2015 of the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Vinod Kumar Gupta, Member
Shri Upjeet Singh Brar, Member Present:-
For the appellant : Shri Kulwinder Singh, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the appellant/opposite party against the order dated 29.7.2015 passed by District Consumer Disputes Redressal Forum, SAS Nagar (Mohali) (in short, "District Forum"), vide which the complaint filed by Brij Kishore, respondent/complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed and following directions were issued to the opposite party:-First Appeal No.1093 of 2015 2
a) to refund to the complainant the total deposited amount of Rs.4,84,000/- (Rs.Four lacs eighty four thousand only) with interest thereon @ 12% per annum from the respective dates of deposit till actual realization;
b) to pay the complainant lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.
2. The complainant alleged, in his complaint, that the opposite party is carrying on the business of developing housing projects and the sale of plots in the vicinity of various villages; now falling in Sector 123 to 125, Greater Mohali, also known as "Sunny Enclave", Tehsil Kharar, District Mohali and in respect thereof it had been issuing advertisements through newspapers etc. in order to allure the common man to invest in its projects/plots. In the month of January 2012 itself officials convinced him to purchase a plot in the project in the said Enclave and to enter into an Agreement to Sell. Accordingly he entered into Agreement to Sell regarding plot falling in List No.326/349T measuring 125 square yards, Village E10, S123, Jandpur, Tehsil Kharar, Mohali, for a total sale consideration of Rs.19,37,500/-, on 20.3.2012. At that time he was assured by the opposite party that he was supposed to pay the said amount in four instalments of Rs.4,84,000/- and it received Rs.50,000/- on 3.3.2012 through Cheque No.992011 and another amount of Rs.4,34,000/- on 20.3.2012 through cheque No.992012. It was orally told to him that after the payment of the earnest money he was supposed to pay the first instalment after three months, once it gets the Change of Land First Appeal No.1093 of 2015 3 Use (CLU) clearance and layout plan etc. and the second instalment after another three months, once the plot was ready for possession. He was assured by its officials that they would inform him for the payment of those instalments. He was convinced by the opposite party to pay the earnest money on 28.1.2012 and two instalments on 1.3.2012. He was assured that it would get the CLU and layout plans before the due date of the first instalment. He always remained ready and willing to fulfil his part of the Agreement. The date for the payment of the first instalment was extended to 30.7.2012 by the opposite party in order to shield its failure to stick to its words regarding the obtaining of CLU etc. Even after more than 9 months, after the extended date, it failed to provide the plot by performing the formalities required to be completed by it. He was left with no other option but to send the legal notice dated 16.1.2015, vide which he asked it either to provide a construction ready plot or to return the money so deposited by him. He was misrepresented by it throughout and was deprived of his hard earned money. It failed to deliver the plot to him even after the extension of time though he accommodated it at each and every level. His money was retained by it for more than two years and, as such, it is liable to refund the same along with interest at the rate of 12% per annum. He suffered mental and physical harassment at the hands of the opposite party. He prayed for the issuance of following directions to it:-
i) to refund the amount of Rs.4,84,000/-, along with interest at the rate of 12% per annum;
First Appeal No.1093 of 2015 4
ii) to pay Rs.2,00,000/-, as compensation, for causing
mental and physical harassment to him; and
iii) to pay Rs.35,000/-, as litigation costs.
3. The opposite party filed written reply before the District Forum, in which it admitted that it is carrying on the business of developing and selling the plots and that the complainant had entered into Agreement dated 20.3.2012 with it regarding the sale of plot for a consideration of Rs.19,37,500/-. It did not dispute that the complainant had deposited Rs.4,84,000/- with it under the Agreement. While denying the other allegations made in the complaint, it averred that the complainant was supposed to deposit the instalments as per the Agreement but he failed to deposit the same in-spite of the fact that on his request the date was first extended to 30.7.2012 and then to 15.6.2013. No date was mentioned in the Agreement regarding handing over of the possession and no such assurance was given to the complainant at the time of booking the plot in its future project. It obtained the permission from GMADA and the work is already in progress. The possession of the plot will be handed over to the complainant as and when the construction is complete. As per the terms of the Agreement, the sum of Rs.4,84,000/- is liable to be forfeited and the complaint for the refund of that amount has been filed in order to pressurize and blackmail it. There is no such deficiency in service on its part nor it adopted any unfair trade practice. The transaction between the parties is purely sale agreement of plot and, as such, the District Forum has no jurisdiction to try the present complaint. First Appeal No.1093 of 2015 5
The complaint has been filed by the complainant to cover up his own defaults. The complaint is barred by limitation, as the cause of action accrued to the complainant on the date of execution of the Agreement itself and period of more than two years had already passed before the filing of this complaint. It prayed for the dismissal thereof.
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 aforesaid order.
5. We have heard learned counsel for the appellant/opposite party and have carefully gone through the records of the case, which were called at the time of admission stage of the appeal.
6. It was submitted by the learned counsel for the opposite party that the District Forum committed an illegality while allowing 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. From the evidence produced by the opposite party, it stands proved that it has already obtained the licence for developing the project and, as such, the District Forum was not justified in refunding the amount so deposited by the complainant. There is merit in the appeal and the same is liable to be admitted.
7. The Agreement so executed between the parties was proved on the record as Ex.C-1. The Payment Schedule is mentioned therein. It is not the case of the complainant that he had paid all the First Appeal No.1093 of 2015 6 instalments. However, he took up the plea in his complaint that the CLU and other permissions had not been obtained by the opposite party from the concerned authorities. It was held by the District Forum that the act of the opposite party in not obtaining the licence to develop the residential colony in question amounts to unfair trade practice and that it was unfair in proving on record the licence; which was regarding some other locality. It is now well settled that allotting a plot and collecting the money without obtaining the licence/permission of the concerned authority amounts to adopting unfair trade practice by the developers. Before allotting the plot and collecting the money from the complainant the opposite party was required to obtain such a licence. It tried to assert that it was possessing such a licence and proved the same on the record as Ex.OP-1. This licence was issued in the year 2014 whereas the Agreement was entered into by it with the complainant on 20.3.2012. Moreover, this licence does not pertain to the project in which the plot was so allotted to the complainant. This licence was for developing land as residential colony at Village Chando Gobindgarh, SAS Nagar, whereas the plot in question, described in the Agreement, Ex.C-1, is situated in Village Jandpur. A correct finding was recorded by the District Forum that the opposite party was not fair by placing such a licence on the record, which pertains to the other project. It stands proved on the record that the opposite party without obtaining the licence from the concerned authority allotted the plot and collected the money from the complainant. The same amounts to unfair trade practice and that enables the complainant to First Appeal No.1093 of 2015 7 claim the refund of the amount so deposited by him. Even in the Agreement it is mentioned that the complainant shall be entitled to the refund of the amount so deposited by him in case the permission was not granted by the concerned authority on account of any technical reason. Correct findings were recorded by the District Forum and we do not find any ground to interfere with those findings. There is no ground for admitting this appeal to be heard on merits and the same is hereby dismissed in limine.
8. The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
9. The arguments in this case were heard on 27.1.2016 and the order was reserved. Now, the order be communicated to the parties.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (UPJEET SINGH BRAR) MEMBER February 08, 2016 Bansal First Appeal No.1093 of 2015 8