DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.1087 of 2017

                                                Date of institution:  20.12.2017                                         Date of decision   :  22.01.2019

Amrit Kaur wife of Shri Manjinder Singh, resident of Street No.2, Kamal Colony, Samrala, Punjab.

…….Complainant

Versus

1.     Bajwa Developers Limited, Sunny Business Centre, 5^th Floor, New Sunny Enclave, Sector 125, Mohali through its Managing Director.

2.     Jarnail Singh Bajwa, Managing Director Bajwa Developers, Sunny Business Centre, 5^th Floor, New Sunny Enclave, Sector 125, Mohali.

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Shri Vishal Ahuja, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

Order by :-  Shri G.K. Dhir, President.

Order

               Complainant, on allurement of OPs got booked one BHK flat BR No.1254 having super area of 465.86 sq. ft. at Sunny Apartments, F-21, Mohali, Sector 74-A & 117, Mohali. Price of the flat was fixed as Rs.12,50,000/-, out of which complainant paid Rs.9,94,300/-, details of which are given below:

                Assurance for handing over possession of flat was given while executing agreement dated 06.06.2011. At the time of paying installments, complainant was given assurance as if approvals/clearances required for the project had already been obtained from the concerned authorities.  Complainant kept on contacting OPs for knowing status of the project, but no satisfactory reply received from OPs, due to which complainant got suspicious and made enquiries for knowing that approvals for the project from competent authorities have not been obtained by OPs, despite booking of flat in 2011. OPs have failed to develop the project and obtain requisite sanctions/approvals, due to which they are unable to handover possession. Complainant, therefore, vide letter dated 12.02.2016 requested OPs for refund of paid amount, but to no effect and that is why this complaint filed for seeking refund of deposited amount with interest @ 12%. Compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.35,000/- more claimed.

2.             In reply filed by OPs, it is pleaded inter alia as if complainant has not complied with terms of Clause-7 of the agreement, which provides that intending purchaser must fulfill eligibility conditions meant for allotment of flat to economically weaker sections of the society. Complainant failed to submit requisite income certificate from competent authority, despite the fact that it was requirement to submit the same for showing that income of complainant does not exceed Rs.3.00 lakhs per annum. Therefore, it is claimed that complainant is not consumer of OPs. Besides, complaint is barred by limitation in view of Section 27 of Limitation Act because last transaction took place on 07.11.2012, but this complaint filed on 20.12.2017 i.e. after period of 5 years and that too for seeking refund of earnest amount. Time limit fixed by Article 54 read with Section 27 of Indian Limitation Act for seeking refund or getting possession expired on 07.11.2015. Admittedly complainant booked flat by paying amount of Rs.9,94,300/- in all. Despite sending of repeated reminders to complainant to submit requisite certificate alongwith documents and affidavit, those have not been submitted by complainant. Complainant has attempted to grab the flat meant for economically weaker sections of the society by cheating OPs. It is claimed that complainant belongs to affluent section of the society and as such she is not entitled for allotment of flat meant for economically weaker sections of the society. This Forum alleged to be having no jurisdiction. Clauses 2.1 to 2.4 of Govt. of Punjab Department of Housing Notification No.21/4/2014-IHgII/1891 have been relied upon in the written statement. By denying each and every averment of the complaint, prayer made for dismissal of the complaint.

3.             Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith document Ex.C-1 to Ex.C-3 and then closed evidence.  On the other hand counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Managing Director and thereafter closed evidence.

4.             Written arguments not submitted. Oral arguments heard and records gone through.

5.             Both the parties placed reliance on agreement Ex.C-1 arrived at between parties. It is admitted case of the parties that flat of price of Rs.12,50,000/- was got booked by complainant with OPs by paying amount of Rs.9,94,300/- on different dates referred above. Endorsements of such payments are incorporated under signatures of OPs on the agreement itself. So certainly complainant able to establish as if she paid amount of Rs.9,94,300/- to OPs as detailed in Ex.C-2.

6.             After going through agreement Ex.C-1, it is made out that complainant was to pay entire sale consideration amount in 5 installments in addition to payment of earnest amount of Rs.3.13 lakhs. However, complainant has paid Rs.9,94,300/- only and as such it is vehemently contended by counsel for OPs that fault lay with complainant in not sticking to payment plan schedule. Even if such fault may be there on part of complainant, despite that OPs have not obtained requisite sanctions/approvals for start of the project in question. Plea taken in the complaint and affidavit Ex.CW-1/1 of the complainant in this respect is not specifically denied through affidavit Ex.OP-1/1 and as such it is obvious that fault lay with OPs in not getting approvals from concerned authorities. Being so, complainant entitled for refund of deposited amount with interest @ 12% per annum from the dates of deposits till realisation in view of law laid down by Hon’ble State Consumer Disputes Redressal Commission Punjab in CC No.716, 789, 835 etc. of 2017 titled as Mangal Singh Kondal & others Vs. Bajwa Developer & Another and First Appeal No.318 of 2018 titled as Harpreet Singh vs. M/s. Bajwa Developers Limited & another,  decided on 30.07.2018. 

7.             OPs claim through written reply as well as affidavit Ex.OP-1/1 of Baldev Singh, Director of OPs that agreement in question be treated as void and as such virtually the agreement in question sought to be rescinded by OPs. In view of that virtually OPs are seeking declaration of agreement as voidable. Besides after taking us through Clause-7 of agreement Ex.C-1, it is sought to be contended that as purchaser (complainant) failed to fulfill the terms and conditions of agreement or bye laws providing for allotment of EWS category flat and as such agreement in question is void. Certainly after going through Ex.C-1, it is made out that flat in question allotted to complainant was subject to fulfillment of terms and conditions requisite for allotment of flat to EWS category. Even if complainant failed to submit the requisite declaration for showing her entitlement to the EWS category flat in question, despite that the agreement at the most can be declared as voidable at the option of OPs, if they want to treat it as void.

8.             It is vehemently contended by counsel for OPs that in fact flat sought by complainant is of EWS category and as such for getting benefit of EWS Housing Scheme, certificate of annual income of complainant, being less than Rs.3.00 lakhs, from all sources required as per Clause-1 (viii) of scheme evolved by Department of Housing & Urban Development, Govt. of Punjab. Even if complainant may not have fulfilled the requirement to avail benefit of EWS housing scheme, despite that OPs themselves remained at fault in not getting the formalities complied with in that respect by issue of notice or otherwise and as such in case OPs to get the agreement declared void, on account of non fulfillment of conditions by complainant, requisite for getting benefit of EWS housing scheme, even then they cannot retain the received amount because in doing so they virtually are seeking unjust enrichment. OPs themselves are also at fault in not starting the construction.

9.             Even if assuming for arguments sake that consent of OPs in entering into agreement Ex.C-1 was obtained by complainant by misrepresentation of her being belonging to economically weaker section category, despite that entitlement of complainant for refund of deposited amount is there in view of Section 64 and 65 of Indian Contract Act, 1872. After going through these sections, it is made out that in case agreement becomes void or is liable to be treated as void at the option of one of the parties, then the party who treats it as void or voidable, must restore such benefits, it has got, to the person from whom these were received. So OPs not entitled to retain amount of Rs.9,94,300/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement.

10.          Complainant certainly is consumer of OPs within meaning of Section 2 (1) (d) of CPA because she availed services of OPs for purchase of flat on payment of part of sale consideration with promise of paying balance amount on execution of sale deed or on getting of possession of flat in question. It is the case of complainant that OPs have not developed the project and as such fault lays with OPs in not fulfilling promise of delivering the possession to complainant. For that fault of OPs, complainant cannot be made to suffer and as such on equitable considerations also, complainant entitled for refund of paid amount of Rs.9,94,300/- with interest.

11.           Even if condition No.3 in agreement may be providing for forfeiture of the earnest amount in case payment of installments not made as per schedule, despite that enforcement of this clause by OPs is not legally tenable, because of provisions of Section 64 and 65 of Indian Contract Act referred above and also because of the fact that OPs have not completed the project or even started the same, despite receipt of hefty amount from complainant, as referred above.

12.           Even as per law laid down in Vasant Mahadero Kate Vs. Shastri Gruha Nirman Sahkari Sanstha Ltd. II (2015) CPJ 4 (NC),  purchaser of plot has continuous cause of action available to him unless and until possession of plot handed over to him. So in view of availability of recurring cause of action in favour of complainant till refusal, certainly complaint is not barred by limitation and submission of counsel for OPs to the contrary has no force.

13.           As per case of Kushal K. Rana Vs. M/s. DLF Commercial Complex Ltd., 2015(1) CLT 134 (NC), terms and conditions of buyers agreement for purchase of flat/plot is not a one way traffic, but both the parties are bound by it. In the event of deficiency in service on part of builder, the builder bound to refund the received amounts with interest.

14.           As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.9,94,300/- (Rs. Nine Lakhs Ninety Four Thousand Three Hundred only) with interest @ 12% per annum from the dates of deposits  till payment. Compensation for mental agony and harassment of Rs.20,000/-  (Rs. Twenty thousand only) and litigation expenses of Rs.5,000/- (Rs. Five thousand only) more allowed in favour of complainant and against  OPs.  Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order, failing which the complainant will be entitled to interest @ 7% per annum on the amounts of compensation and litigation expenses from today till payment. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

January 22, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member