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

Consumer Complaint No.179 of 2017

                                                Date of institution:  03.03.2017                                             Date of decision   :  05.12.2018

Bhupinder Singh son of Sukhjit Singh resident of House No.1215, Phase-9, SAS Nagar, Mohali.

…….Complainant

Versus

1.     M/s. Bajwa Developers Ltd. (Regd.), Sunny Enclave, Desu Majra, Tehsil Kharar, District SAS Nagar, Mohali through its Managing Director.

2.     J.S. Bajwa, Managing Director, M/s. Bajwa Developers Ltd. (Regd.), Sunny Enclave, Desu Majra, Tehsil Kharar, 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 Munish Bhardwaj, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

               Complainant got booked one BHK Apartment BR No.91 (1091) measuring 450 sq. feet at Sunny Enclave, Tehsil Kharar, District SAS Nagar vide agreement dated 08.06.2011 for total sale consideration of Rs.12.00 lakhs by paying amount of Rs.3.00 lakhs on that date. Thereafter complainant paid amount of Rs.1,30,000/- vide cheque dated 29.10.2011 on 02.11.2011 and further amount of Rs.50,000/- vide cheque dated 15.05.2013 So complainant paid Rs.4,80,000/- in all i.e. about 40% of total sale consideration amount. Complainant applied for loan of Rs.10,27,673/- from HDFC Bank and the same was approved vide letter dated 10.08.2011. Complainant was directed by bank to submit approved lay out plan of the housing project for disbursement of loan on which request was made with OPs for supply of approved lay out plan, but instead of providing the same, OPs extended dates for payment of installments from time to time. As OPs failed to provide approved lay out plan of housing project and as such bank refused to disburse loan amount. Complainant visited site for knowing status of construction, but was shocked to find that the same has not been started. OPs failed to provide satisfactory reply and even have not refunded the deposited amount despite assurance. So after serving legal notice dated 09.02.2017, this complaint filed for seeking refund of the deposited amount of Rs.4,80,000/- with interest @ 18% per annum from the dates of payment till refund. Compensation for non delivery of possession of Rs.3.00 lakhs and of same amount for mental pain and agony also claimed alongwith litigation expenses of Rs.50,000/-.

2.             OPs in the submitted reply pleaded inter alia as if complaint is time barred because after entering into agreement on 08.06.2011 and making last payment of Rs.50,000/- on 15.05.2013, no payment made, but this complaint filed on 03.03.2017 after more than three years i.e. beyond limitation period prescribed by Article 54 of the Limitation Act.  Moreover, it is claimed that complainant is not consumer because he concealed his identity of being affluent member of the society for getting flat meant for economically weaker sections of the society booked by keeping OPs in dark. Transaction in question is purely based on sale agreement of apartment for total consideration of Rs.12.00 lakhs, but complainant failed to deposit further installments as per agreement. Complainant has developed novel idea of seeking refund of Rs.4,80,000/- with interest, despite the fact that earnest amount deposited, liable to be forfeited as per Clause-3 of agreement because of failure to deposit agreed amount within 15 days from the due date. Complainant also estopped by his act and conduct from filing the complaint due to his fault to abide by terms of agreement regarding deposit of installments within stipulated period. No cause of action has accrued in favour of complainant, more so when relationship of consumer and service provider do not exists. Complaint being false, frivolous and vexatious merits dismissal more so when same also barred by limitation. Admittedly agreement in question was arrived at and amount of Rs.4,80,000/- was received from complainant. Other averments of the complaint denied, by claiming that there is no deficiency in service on part of OPs.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents 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 Jarnail Singh Bajwa, Managing Director and affidavit Ex.OP-1/2 of Shri Baldev Singh Bajwa, Director and thereafter closed evidence.

4.             Written arguments submitted by the complainant and not by the OPs. Oral arguments heard and records gone through.

5.             OPs in the written reply or in the submitted affidavit has not denied about receipt of Rs.4,80,000/- from complainant and as such that admission of OPs alongwith endorsements qua receipt of amounts on different dates on agreement Ex.C-1 enough to establish that complainant had paid Rs.4,80,000/- in all to OPs for booking of flat.

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.3.00 lakhs. However, complainant has paid Rs.4,80,000/- 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 from various departments. 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 and Ex.OP-1/2 of Jarnail Singh Bajwa, Managing Director and 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 his 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 his 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.4,80,000/- 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 he 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.4,80,000/- 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.            Complainant has also produced on record letter of sanction of loan Ex.C-2 for establishing that he contracted loan of Rs.10,27,673/- from HDFC Bank as housing loan on 10.08.2011. In view of sanction of this loan, it is obvious that plea taken by complainant is correct that he contracted housing loan for making payment of balance amount to OPs. One of the conditions of sanction of loan incorporated in Ex.C-2 is regarding disbursement of loan subject to legal and technical clearance of the property financed. That clearance required the complainant to submit copy of the approved lay out plan, but OPs have not provided that lay out plan despite seeking of same by complainant and as such fault in that respect lay with OPs.

15.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.4,80,000/- (Rs. Four Lakhs Eighty Thousand 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. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

December 05, 2018.

                                                                (G.K. Dhir)

                                                                President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member