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

Consumer Complaint No.519 of 2016

                                             Date of institution:  29.08.2016                                         Date of decision   :  01.03.2018

Angrej Singh son of Revel Singh, Village Achanak, Tehsil Budhlada, District Mansa now resident of Flat No.1, Block B-7, Jamuna Apartments, Kharar.

…….Complainant

Vs

1.     The Managing Director, Bajwa Developers Ltd. SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.

2.     The Manager, Bajwa Developers Ltd. SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.

  .

……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member

                Mrs. Natasha Chopra, Member.

Present:    Shri Abhishek Bhateja, counsel for complainant.

                Ms. Kulwinder Kaur, counsel for the OPs.

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

Order

               Complainant vide agreement of sale dated 04.06.2011 agreed to purchase one BHK BR No. (510) 1410 Khata Number Khasra Number Apartment of village F21, Mohali Sector 74-A, 117 for total sale consideration of Rs.12,50,100/-. Total area of the flat was approximately 450 sq. ft. Complainant paid Rs.5,00,300/- through installments vide receipts issued by OPs. At the time of execution of agreement of sale, it was assured by the OPs as if the apartment will be built and possession handed over to complainant finally on 04.12.2012. Complainant was hopeful as if the flat would be ready by that time and possession will be delivered on the above said date. However, neither the building has been erected and nor any development carried on the spot by the OPs. Time had been extended for delivery of possession by OPs on one pretext or the other. No authentic response received from OPs and as such complainant has suffered mental harassment and agony, due to which he served legal notice dated 24.06.2016 on OPs before filing this complaint. Complainant seeks refund of the paid amount of Rs.5,00,300/- with interest @ 24% per annum from the dates of deposit till actual payment. Compensation for mental harassment and agony of Rs.5.00 lakhs and litigation expenses of Rs.30,000/- more claimed.

2.             OPs filed reply by claiming that this Forum has no jurisdiction to try the present complaint because transaction between the complainant and the OPs based on agreement of sale of flat for total sale consideration of Rs.12,52,000/-. It is claimed that out of the paid amount of Rs.5,00,300/-, an amount of Rs.3,13,000/- liable to be forfeited as per terms and conditions of agreement. Complainant estopped by his act and conduct from filing the complaint because he himself committed default in paying the installments within stipulated period as provided by agreement.  As per Clause-3 of agreement, in case payment of installments not made in time, then earnest amount liable to be forfeited. No cause of action alleged to have accrued in favour of complainant. Agreement in question claimed to have been rescinded on 19.02.2012 because the last installment was received on 21.10.2011.  Moreover, the complaint alleged to be barred by limitation. Complainant was made aware that approvals are yet to be received. LOI was received on 19.05.2014 from GMADA. Complainant purchased the flat for speculative purposes, so as to sell the same at premium as and when the same fetched good price. Complaint alleged to be misconceived. In view of breach of terms of the agreement, complainant is liable to pay compensation as per Section 75 of Indian Contract Act. Admittedly complainant booked one BHK flat in upcoming project regarding which approvals yet to be received even to the knowledge of complainant. Assurance was not given to complainant regarding handing over of possession finally by 04.12.2012. OPs have obtained CLU from GMADA and work alleged to be progressing. It is claimed that possession of the flat will be handed over as and when the construction is completed. Complainant was made aware of the conditions of deposit of installments as per installment plan worked out in the agreement. Time was extended only on request of the complainant because he failed to pay the installments in time. It is claimed that there is no negligence on part of OPs.

3.             Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-8 and Mark-A and thereafter closed evidence.  On the other hand, counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Jarnail Singh Bajwa, MD of the OPs and thereafter closed evidence.

4.             Written arguments in this case submitted by both the parties. Oral arguments heard and records gone through.

5.             Agreement of sale Ex.C-1 undisputedly was executed between the parties. Total sale consideration amount was Rs.12,52,000/-, out of which Rs.5,00,300/- has been paid by complainant to OPs on different dates. Details of those payments of Rs.2.00 lakh on date 18.04.2011; of Rs.1,12,500/- on date 04.06.2011 and of Rs.1,87,800/- on date 21.10.2011 are given in the balance sheet signed by Shri J.S. Bajwa, is a fact borne from photostat copy of that balance sheet produced on record. Time for execution of the sale deed was extended to 30.03.2012 on 22.02.2012 is a fact borne from the endorsement made in hand on the agreement Ex.C-1 itself. Even OPs have not denied qua receipt of this amount of Rs.5,00,300/-. Schedule of payment worked out in Clause-2 of agreement of sale Ex.C-1 provides that amount of Rs.3,13,000/- was to be paid by complainant to OPs as earnest amount by 04.06.2011, but 5 other installments of Rs.1,87,800/- each were to be deposited by complainant with OPs on or before 04.10.2011; 04.02.2012; 04.06.2012; 04.10.2012 and 04.12.2012. However, those payments not made as per schedule, but payments of Rs.2.00 lakh; Rs.1,12,500/- and Rs.1,87,800/- made only on 18.04.2011, 04.06.2011 and 21.10.2011. So virtually neither complainant sticked to time schedule and nor paid full installments. So fault certainly lies with complainant in not abiding by the full terms and conditions of the agreement of sale Ex.C-1. Even though breach of terms of schedule of payment of installments committed by complainant, but despite that OPs themselves are claiming the agreement as void and as such certainly complainant entitled for refund of the paid amount of Rs.5,00,300/- in view of Sections 64 and 65 of Indian Contract Act. These sections provides that when the agreement is void or liable to be declared as voidable at the option of one party, then the party taking the agreement as void or seeking the same to be declared as voidable, is bound to reimburse the benefits received by it under the agreement to the party, from which those benefits got by it. So certainly OPs bound to return back the received amount of Rs.5,00,300/- to the complainant, more so when fault also lays with OPs in not complying with the terms and conditions of agreement of sale Ex.C-1.

6.             After going through Clause-6 of Ex.C-1, it is made out that in case due to any technical defect approvals from the authorities could not be obtained, then the purchaser will be entitled for refund of the paid earnest amount, but not to compensation. Completion of the project has not been done on the spot is a fact proved by complainant by producing  a photograph as Ex.C-8. Rather construction seems to be started only, but there are agricultural fields in some of the land.  Copy of the letter Ex.C-6 shows that license of land use was obtained by OPs regarding construction works in Sector 74-A, SAS Nagar and copy of the sanction letter regarding change of land use dated 09.11.2012 issued by Sr. Town Planner also is produced on record by complainant himself alongwith Ex.C-6. However, on information sought under Right to Information Act by Keshav Kumar through application Ex.C-7, it was disclosed by Punjab Pollution Control Board Office as if OPs have not sought the permission from Punjab Pollution Control Board for developing the project in question situate in Sector 74-A. So this material produced on record by complainant itself establishes as if OPs failed to obtain the requisite sanctions from the concerned authorities and that is why construction work on the spot has not been completed, despite acceptance of Rs.5,00,300/- from complainant. In view of this fault of the OPs, they cannot be permitted to retain any part of the deposited amount by complainant, because in case it is so allowed, then it will amount to unjust enrichment of OPs, which is legally not permissible. Present is a case in which both the parties committed breach of terms and conditions of agreement Ex.C-1 and as such refund of the amount should be ordered with interest @ 12% per annum from the date of legal notice Ex.C-2 dated 22.06.2016 sent through registered postal receipt Ex.C-3. It is so because demand for refund put forth by complainant for the first time through this legal notice Ex.C-2 by claiming that complainant does not want to continue with the said agreement of sale anymore on account of fault on part of OPs to deliver possession and as such refund of the paid amount with interest should be done by OPs failing which the complainant will be constrained to avail legal remedy. Before this date of 22.06.2016 complainant sticked to the terms of agreement of sale Ex.C-1 and never sought refund of the amount and as such entitlement of complainant for refund of the paid amount with interest is w.e.f. 22.06.2016 till payment, on equitable consideration because agreement of sale is two way traffic.

7.             Even if agreement of sale Ex.C-1 may have been executed on 04.06.2011, but despite that complainant kept on expecting as if possession of the flat in question will be delivered to him by OPs and as such virtually complainant kept on having recurring cause of action till seeking refund of the paid amount through legal notice Ex.C-2 dated 22.06.2016. So complaint certainly is not barred by limitation, being filed on 29.08.2016 i.e. within three months of knowledge that OPs not in a position to handover possession of the flat.

8.             Even if condition No.3 in agreement Ex.C-1 may be there regarding forfeiture of earnest amount in case payment of installments not made as per schedule, but despite that enforcement of this clause at the instance of OPs is not tenable because OPs themselves failed to get the requisite sanctions from Punjab Pollution Control Board. So in view of Sections 64 and 65 of the Indian Contract Act and the above discussion, OPs not entitled to avail benefit of Clause-3 of Ex.C-1 at all.

9.             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.

10.           As per case of Kushal K. Rana Vs. M/s. DLF Commercial Complex Ltd., 2015(1) CLT 134 (NC), both the parties are bound by terms and conditions of buyers agreement for purchase of flat/plot because agreement is not  a one way traffic. In view of the fact that both the parties are bound by terms of the agreement and in view of the fact that both the parties committed default in abiding by terms and conditions of the agreement, it is fit and appropriate to order return of the amount deposited by complainant with OPs with interest @ 12% per annum from the date of seeking refund for the first time through notice Ex.C-2 as referred above. Even complainant in Para No.5 of the complaint has admitted that time for final execution of the agreement was extended by OPs on one pretext or the other. As such virtually the complainant himself has acquiesced in act of the OPs in not completing the construction at earliest. As complainant himself agreed for extension of time limit of execution of sale deed by extending the time and not by taking any action and as such now complainant cannot blame OPs exclusively for non performance of his part.

11.           Even if Clause-7 in agreement Ex.C-1 may be there that the persons to whom flats in EWS category to be allotted are bound to follow the terms and conditions of such allotment, but despite that it was the duty of OPs to get compliance of those terms and conditions done from complainant before accepting any amount from complainant. As agreement of sale Ex.C-1 was mutually arrived at between parties and complainant was not supposed to know as to what were the terms and conditions on which flat in EWS category can be allotted and as such it was for the OPs to get the terms and conditions of such allotment complied with. OPs not shown to have supplied those terms and conditions to complainant and as such fault in this respect also remains with OPs, due to which they cannot be given benefit of their own wrong.

12.           Even if in Para No.2 of affidavit Ex.OP-1/1 plea is taken that complainant falsely represented as if he belongs to EWS category of the society for playing fraud while entering into agreement Ex.C-1, but despite that duty also was of OPs to ensure that the agreement of sale arrived at by them with the complainant only in case the complainant produced documents or material for showing that he is entitled for allotment of EWS category flat. That duty was not performed by OPs and as such for escaping their own liability of not due performing the obligations, they cannot put blame exclusively on the complainant.  In Para No.2 of affidavit Ex.OP-1/1, it is mentioned that despite repeated reminders and telephone calls, complainant failed to produce the certificate regarding his entitlement to allotment of EWS category flat, and if that be the position, then inference is obvious that actually OPs knew about the requirement of such certificate. Despite this knowledge of requirement of such certificate, the same was not obtained at the time of entering into agreement by OPs and as such more fault remains of OPs than that of complainant because in greed of selling more and more flats for earning profits therefrom as builder, the OPs even did not bother for getting compliance of requirement of obtaining certificate referred above from the complainant.  A wrong doer cannot claim benefit of his own wrong and as such submission of counsel for OPs has no force that complainant not entitled to possession of the flat in question or that OPs entitled for forfeiture of the paid earnest amount by complainant.

13.           Counsel for complainant vehemently contends that complainant entitled for refund of the paid amount with interest from the dates of deposit, but on equitable considerations, the said submission has no force because of breach of terms of the contract committed by complainant also in not paying the installments as per schedule worked out in Ex.C-1 itself. However, despite issue of legal notice Ex.C-2 and despite inability of OPs to handover possession till date, the complainant suffered mental harassment and agony and as such certainly complainant entitled to compensation for mental harassment and agony as well as to litigation expenses.

14.           As a sequel of above discussion, complaint allowed with direction to OPs to refund the received amount of Rs.5,00,300/- with interest @ 12% per annum with effect from the date of legal notice namely 22.06.2016 till payment. Compensation for mental harassment and agony of Rs.20,000/- and litigation expenses of Rs.5,000/-  more allowed in favour of complainant and against the OPs. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order.  Certified copies be supplied to the parties as per rules. 

                Since there is shortage of postal stamps in this Forum, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it will be the responsibility of the learned counsel for the parties to inform them accordingly.  This direction issued by following the principle laid down by Hon’ble  Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.956 of 2017 titled as Partap Rai Sharma Vs. Greater Mohali Area Development Authority (GMADA), decided on 25.01.2018. File be indexed and consigned to record room.

Announced

March 01, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                               (Amrinder Singh Sidhu)                                                                   Member

(Mrs. Natasha Chopra)

Member