STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

1. First Appeal No.670 of 2017 Date of institution : 20.09.2017 Date of decision : 08.11.2017 M/s Bajwa Developers Limited through its Managing Director Shri Jarnail Singh Bajwa, Office at SCO No.17-18, Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali. .Appellant-Opposite Party Versus Mr. Atul Vij son of Mr. Satya Pal Vij, resident of House No.1121, Sector 49-B, Chandigarh. ..Respondent-Complainant

2. First Appeal No.671 of 2017 Date of institution : 20.09.2017 Date of decision : 08.11.2017 M/s Bajwa Developers Limited through its Managing Director Shri Jarnail Singh Bajwa, Office at Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali. .Appellant-Opposite Party Versus Vikas Kalia son of Rajinder Kumar Kalia, resident of House No.832, Sector 78, Mohali (Punjab). ..Respondent-Complainant

3. First Appeal No.673 of 2017 Date of institution : 20.09.2017 Date of decision : 08.11.2017 First Appeal No.670 of 2017 M/s Bajwa Developers Limited through its Managing Director Shri Jarnail Singh Bajwa, Office at SCO No.17-18, Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali. .Appellant-Opposite Party Versus Ms. Neeru Thakur wife of Mr. Rohit Thakur, resident of VPO Bahadpur, Tehsil Indora, District Kangra (H.P.). ..Respondent-Complainant

4. First Appeal No.674 of 2017 Date of institution : 20.09.2017 Date of decision : 08.11.2017 M/s Bajwa Developers Limited through its Managing Director Shri Jarnail Singh Bajwa, Office at SCO No.17-18, Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali. .Appellant-Opposite Party Versus Mr. Gaurav Passi son of Mr. Narinder Kumar Passi, resident of Flat No.102-A, Green Enclave, Lohgarh Road, Zirakpur. ..Respondent-Complainant First Appeals against the orders dated 25.7.2017 of the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali). Quorum:- Honble Mr. Justice Paramjeet Singh Dhaliwal, President Mrs. Kiran Sibal, Member Present:- For the appellant : Shri Mandeep Singh, Advocate for Shri Arvind Kashyap, Advocate. For the respondent : Shri Abhishek Bhateja, Advocate. First Appeal No.670 of 2017 JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT: All the above mentioned First Appeals have been preferred against the different orders dated 25.7.2017 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.670 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. Facts of the Complaint:

3. Brief facts, as stated in the complaint, are that the opposite party floated a scheme for developing a housing project in Sector 74A, Mohali under the name and style of Sunny Apartments. The complainant submitted an application for booking of 1 BHK BR No.(1729) Apartment No.1829 at Sunny Apartment F21, Sector 74A, 117, Mohali having covered area of 450 square feet at a sale consideration of 12,40,000/-. The complainant purchased the said apartment by paying initial amount of 3,10,000/-, vide cheque dated 21.7.2011. Thereafter agreement was executed between the parties on 25.7.2011. The opposite party assured that the possession of the flat would be delivered by January 2013, which was extended by it on every occasion when the complainant used to visit it for the same. The last date extended is 30.6.2016. On 1.11.2011 the complainant First Appeal No.670 of 2017 made further payment of 1,86,800/-, vide two cheques of ICICI Bank against receipt. At that time the officials of the opposite party assured that the possession would be delivered within six months. Then again on 12.4.2012 the complainant made payment of 1,86,800/-, vide cheques dated 12.4.2012 against receipt. Thus, in all the complainant made payment of 6,82,000/- to the opposite party. The complainant had not made payment of the rest instalments as there was no construction/development made by the opposite party at the site. The agreement was executed by the opposite party with the sole intention to grab the money from the purchasers and to harass them. The opposite party has created the agreement in complete violation of the provisions of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA). As per point No.3 of the agreement dated 25.7.2011 the opposite party is not even owner of the land in question. The opposite party has not raised any demand for the payment. The complainant was and is still ready to make the payment provided the flat is handed over to him by the opposite party. The complainant made number of calls and also visited the office of the opposite party but could not get a satisfactory response. The complainant also came to know that certain permissions were pending which are necessary for approval of the project. The complainant got issued a legal notice dated 23.3.2016 to the opposite party but no reply has been sent by it. Hence the complaint was filed before the District Forum for issuance of directions to the opposite party to either handover the possession or refund the deposited amount of 6,82,000/- and 10,000/- along First Appeal No.670 of 2017 with interest @ 18% per annum; compensation of 2,50,000/- for harassment and mental agony and 33,000/-, as litigation expenses. Defence of the Opposite Party:

4. The opposite party in its reply raised certain preliminary objections to the effect that the complainant committed default in making payments of instalments and as per the Agreement an amount of 3,10,000/- deposited by the complainant is liable to be forfeited. The complainant after deposit of 6,82,000/- failed to deposit the left over amount and the agreement stood rescinded on 10.11.2012 as the last payment was received on 12.4.2012. Approvals of the project are under process and it will take time for getting the approval and possession of the flat. The complainant had paid only 6,82,000/- out of 12,40,000/-. On merits, all the averments made in the complaint were denied and a prayer for dismissal of the complaint was made. Finding of the District Forum:

5. 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 25.7.2017 with the following directions to the opposite party:- (a) to refund the deposited amount of 6,82,000/- to the complainant along with interest @ 12% per annum from the different dates of deposit of different amounts till the date of actual refund. First Appeal No.670 of 2017 (b) to pay to the complainant compensation of 25,000/- on account of mental agony due to the negligent act of the opposite party; and (c) to pay 10,000/-, as litigation costs. Aggrieved by the same, the present appeal has been filed by the opposite party for setting aside the impugned order.

6. We have heard the learned counsel for both the sides and have carefully gone through the records of the case. Contentions of the Parties:

7. It has been 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. Therefore, it cannot be held that there was any deficiency in service or that it 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.

8. On the other hand, it has been submitted by the learned counsel for the complainant that the opposite party was not having necessary sanctions and approvals in its favour and there was no sign of development or construction at the site. The opposite party could not receive the amount from the consumers without obtaining the necessary sanctions and approvals in respect of the project from the competent authorities. When there was no development or First Appeal No.670 of 2017 construction at the site, there was no question of payment of any further instalment to the opposite party. Hence, the District Forum has not committed any illegality or infirmity in allowing the present complaint. He prayed that there is no merit in this appeal and the same be dismissed with costs. Consideration of Contentions:

9. We have given our thoughtful consideration to the contentions raised before us.

10. At the outset it is pertinent to mention that identical matters have already been decided by this Commission in the following cases:

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; First Appeal No.670 of 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; 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. First Appeal No.670 of 2017

11. 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.

12. According to the complainant, he purchased the flat in question from the opposite party and paid a sum of 6,82,000/-. The payment so made by the complainant has been admitted by the opposite party in its written statement. The possession of the flat, complete in all respects, was to be delivered to the complainant within 18 months of the Agreement, which was executed on 25.7.2011, Ex.C-3, i.e. upto 25.1.2013. 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. It cannot be made out from the evidence produced on the record that the complainant invested the amount in the flat in dispute for the purposes of resale. We are not inclined to conclude that the complainant does not fall under the definition of consumer as contained in Section 2(1)(d) of the C.P. Act. It is very much clear from the contents of the Agreement Ex.C3 that the flat, which the complainant agreed to purchase, was to be constructed and the opposite party was required to execute a registered sale deed in favour of the complainant within 10 days of the payment of the total sale consideration. As per the contents of the Agreement the complainant was to accept any change made in the layout plan by the competent authority and the flat which he agreed to purchase could have been changed and he was to be bound by that change of flat. Thus, the First Appeal No.670 of 2017 complainant hired the services of the opposite party for a consideration and, as such, falls under the definition of consumer.

13. Moreover, the amount has been utilized by the opposite party, which is trust money, for earning profits in its 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 party has also violated the provisions of the 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 its name when the project was launched. Therefore, the opposite party violated Sections 3, 5, 9 and 12 of PAPRA.

14. The opposite party 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. It is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing their part of the Agreement.

15. By executing the Agreement Ex.C-3 and receiving the amount more than 25,000/- the opposite party violated the provisions of PAPRA. It was not competent to execute the Agreement in respect First Appeal No.670 of 2017 of the flat and to receive different amounts. These acts on the part of the opposite party 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 party cannot withhold his amount and is liable to refund the same along with interest.

16. The opposite party has 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.

17. 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 party 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 party with the hope to get the possession of the flat in a reasonable time. The circumstances clearly show that the opposite party 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 party 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 his money with the opposite party, he First Appeal No.670 of 2017 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 party i.e. builder knew from the very beginning that it 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 party 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 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 Honble Supreme Court and the Honble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken First Appeal No.670 of 2017 into consideration for awarding compensation. In addition to that he is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by him on account of the betrayal by the opposite party in shattering his hope of getting the flat by waiting for all this period.

18. 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.

19. The appellant/opposite party 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.671 of 2017:

20. In this case, the complainant purchased 1 BHK Apartment/Flat No.1114 at Sunny Apartment F21, Mohali, Sector 74-A, 117, Mohali having covered area of 450 square feet for a total sale consideration of 12,52,000/- in resale and paid 5,00,300/-. Rest of the averments made in this case are same as in FA No.670 of 2017. The opposite party took the same stand as in FA No.670 of 2017. The counsel for the parties also argued on the same lines as in FA No.670 of 2017. First Appeal No.670 of 2017

21. In view of the findings recorded in FA No.670 of 2017, we do not find any merit in this case also and the same is hereby dismissed.

22. The appellant/opposite party 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.673 of 2017:

23. In this case, the complainant purchased 1 BHK BR No.(1487), Apartment No.1687 at Sunny Apartment F21, Sector 74-A, 117, Mohali having covered area of 450 square feet for a total sale consideration of 12,52,000/- and paid 6,88,100/- on different dates. Rest of the averments made in this case are same as in FA No.670 of 2017. The opposite party took the same stand as in FA No.670 of 2017. The counsel for the parties also argued on the same lines as in FA No.670 of 2017.

24. In view of the findings recorded in FA No.670 of 2017, we do not find any merit in this case also and the same is hereby dismissed.

25. The appellant/opposite party 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 First Appeal No.670 of 2017 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.674 of 2017:

26. In this case, the complainant purchased 1 BHK BR No.(1486), Apartment No.1686 at Sunny Apartment F21, Sector 74-A, 117, Mohali having covered area of 450 square feet for a total sale consideration of 12,52,000/- and paid 8,76,400/- on different dates. Rest of the averments made in this case are same as in FA No.670 of 2017. The opposite party took the same stand as in FA No.670 of 2017. The counsel for the parties also argued on the same lines as in FA No.670 of 2017.

27. In view of the findings recorded in FA No.670 of 2017, we do not find any merit in this case also and the same is hereby dismissed.

28. The appellant/opposite party 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 8, 2017 Bansal First Appeal No.670 of 2017