Punjab

SAS Nagar Mohali

CC/254/2017

Dan Singh - Complainant(s)

Versus

Bajwa Developers Ltd. - Opp.Party(s)

Gagandeep Singh Thind

04 Oct 2018

ORDER

Heading1
Heading2
 
Complaint Case No. CC/254/2017
( Date of Filing : 29 Mar 2017 )
 
1. Dan Singh
S/o Sh. Hayat Singh, R/o H.No.2826, Sector 37-C, Chandigarh.
...........Complainant(s)
Versus
1. Bajwa Developers Ltd.
SCO No.17-18, Sunny Enclave, Desu Majra, Distt. SAS nagar Mohali, through its Managing Director.
2. Sh. Jarnail Singh Bajwa
S/o Sh. Bishan Singh Managing Director, Bajwa Developers Ltd. SCO No. 17-18, Sunny Enclave, Desu Majra, Distt. SAS Nagar, Mohali.
............Opp.Party(s)
 
BEFORE: 
  G.K.Dhir PRESIDENT
  Ms. Natasha Chopra MEMBER
  Mr. Amrinder Singh MEMBER
 
For the Complainant:
For the Opp. Party:
Dated : 04 Oct 2018
Final Order / Judgement

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

Consumer Complaint No.254 of 2017

                                                Date of institution:  29.03.2017                                             Date of decision   :  04.10.2018

 

Dan Singh son of Shri Hayat Singh, resident of House No.2826, Sector 37-C, Chandigarh.

…….Complainant

Versus

 

1.     Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali (Punjab) through its Managing Director.

 

2.     Shri Jarnail Singh Bajwa son of Shri Bishan Singh,  Managing Director, Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali (Punjab).

                                                            ……..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 Kulwinder Singh proxy counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

 

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

 

Order

 

               Dan Singh complainant booked one BHK Flat BR No.1874 having area of 450 sq. ft. with OPs by agreeing to pay sale consideration of Rs.13,24,000/-. Agreement dated 21.04.2012 in this respect was arrived at and thereafter complainant paid Rs.3,31,250/- on different dates. Date of final payment as per worked out schedule was 21.10.2013. OPs got CLU from GMADA on 19.05.2014, but subject to getting approvals from other statutory bodies. Complainant is waiting for possession since from October, 2013 on which date possession was promised to be delivered, but possession of the flat has not been delivered till date. Letter of intent was issued by GMADA in favour of OPs subject to fulfillment of other requirements mentioned in the letter dated 19.05.2014. OPs professed as if they have already obtained requisite sanctions, but in fact that was not the position. So it is claimed that the amount in question got deposited by OPs from complainant by adopting unfair trade practice. Construction of the project has not been started and that is why possession not handed over. So refund of the paid amount of Rs.3,31,250/- with interest @ 18% per annum from the dates of payment till realisation is claimed alongwith compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.35,000/-.

2.             In reply submitted by OPs, it is pleaded inter alia as if complaint is barred by limitation in view of Section 27 read with Article 54 of Indian Limitation Act because agreement was arrived at on 21.04.2012, but last payment of Rs.2,31,250/- was made on 04.04.2012. However, present complaint was filed on 29.03.2017 i.e. after period of five years of accrual of cause of action. Relationship of consumer and service provider do not exist between the parties and complainant is not consumer because flat meant for economically weaker sections of the society was got booked by complainant by concealing his identity of being affluent member of the society. Construction and possession of flat was limited to payment plan annexed with the agreement. As per Clause-3 of agreement, in the event of nonpayment of scheduled installments within 15 days, earnest amount was to be forfeited. As per Clause-7 of the agreement, the purchaser was to abide by EWS norms. Documents in support of claim of complainant belonging to EWS as prescribed by Punjab Govt. were to be supplied, but those have not been supplied. Agreement is scribed on under stamped papers. It is claimed that as consent of OPs for agreement was obtained by complainant by playing fraud and as such agreement is void  ab-initio. Moreover, it is claimed that complaint is bad due to non joiner of necessary parties. Complaint alleged to be filed by adopting novel idea of seeking refund of paid amount, despite the fact that complainant is not belonging to EWS category specified by Punjab Govt. Other averments of the complaint denied by claiming that there is no clause in the agreement regarding raising of construction and handing over of possession of flat by October, 2013. Rather it is claimed that after putting extra efforts, OPs got approvals from GMADA, but work halted due to persons like complainant, who failed to provide documents and pay the amounts of installments as per schedule.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 and Ex.
C-2 and then closed evidence.  On the other hand counsel for OPs twice tendered in evidence affidavits Ex.OP-1/1 of Shri Baldev Singh Bajwa, Director and thereafter closed evidence.

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

5.             Execution of agreement Ex.C-1 is not denied by the parties and even it is not denied by OPs that an amount of Rs.3,31,250/- has been deposited by complainant with OPs as part consideration of one BHK flat. Endorsements regarding receipt of above referred amounts under signatures of Shri J.S. Bajwa, Managing Director are there on Ex.C-2. Total sale consideration of the flat was Rs.13,32,250/- as per agreement Ex.C-1 itself and as such virtually 25% of the sale consideration amount alone was paid by complainant to OPs.

6.             After going through schedule of payments incorporated in Clause-2 of agreement Ex.C-1, it is made out that earnest amount of Rs.3,31,000/- was to be deposited on 21.04.2012 and balance amount was to be deposited in 5 equal installments of Rs.1,98,600/- each during period from 21.08.2012 to 21.10.2013. Specific dates of these 5 installments mentioned in Clause-2 of Ex.C-1, but complainant has deposited virtually earnest amount only in this case and has not paid any amount of installments. This is despite the fact that as per case of complainant himself possession was to be delivered by October, 2013. Even after going through Clause-2 of Ex.C-1, it is made out that final payment of 5th installment was to be made on 21.10.2013. So it is obvious that complainant himself committed default in not sticking to payment schedule. Rather complainant has not deposited the amount of any of the 5 installments, due dates of which were 21.08.2012; 21.12.2012; 21.04.2013; 21.08.2013 and 21.10.2013.  In such circumstances, submissions advanced by counsel for OP has force that due to inaction of complainant in abiding by terms and conditions of agreement Ex.C-1, OPs could not collect due amounts for carrying on with the work of the project in question. Rather as already referred above, complainant deposited only 25% of the sale consideration amount and as such fault lays with complainant in not abiding by terms and conditions of schedule of payment of installments incorporated in Ex.C-1.

7.             As per law laid down in Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC), if the purchaser remained defaulter in not adhering to the installment payment plan, then he is not entitled for any interest, even though the builder had not developed the site, due to which he is not in a position to deliver possession. It is so because he who seeks equity must do equity. In case the equity seeker himself is deficient, then he is not entitled for any interest, is the crux of ratio of above said case. Ratio of this case is fully applicable to the facts of the present case particularly when complainant shown to have deposited some installments alone, but has not deposited the remaining installments as per schedule of payments worked out in Ex.C-1. So, complainant will be entitled to interest with effect from the date of filing of complaint, when he sought refund of the deposited amount for the first time.

8.             It is vehemently contended by counsel for complainant that though agreement in question arrived at between the parties on 21.04.2012, but requisite sanctions from GMADA and other authorities were not obtained by OPs till 19.05.2014 and as such OPs committed fraud with complainant and other customers by pretending as if the colony in question is approved one. However, that submission has no force because after going through Clause-6 of relied upon agreement Ex.C-1 by parties, it is made out that in case flat/plot going to be sold to complainant for any technical reason, does not get approval of the authorities, then the allottee will be entitled for return of earnest amount, but without seeking compensation. When this specific clause 6 of the agreement exists, and complainant made payments after acknowledging this agreement, then there is no escape from the conclusion that complainant was specifically made aware of the fact that requisite sanctions from authorities yet to be obtained and that is why it has been specifically mentioned in Clause-6 that in case for any technical reason, requisite sanctions from the authorities not received, then refund of the earnest amount without compensation can be claimed by complainant. As terms of agreement itself provides that complainant was made aware about non getting of approvals by OPs, so pleas taken in the written reply as well as in the twice tendered affidavits Ex.OP-1/1 are correct that complainant was made aware at the time of booking of flat that still sanctions/approvals to be obtained from competent authorities. In view of this, it is obvious that complainant booked the flat in question with OPs knowing fully well that the requisite sanctions yet to be obtained. If that be the position, then certainly submission of counsel for complainant has no force that OPs committed fraud with complainant by receiving amounts in question, despite the fact that requisite sanctions were not obtained by OPs at the time when the amounts were received by them. Rather complainant was fully made aware of the fact that for the upcoming project in question, requisite sanctions yet to be obtained, but despite that complainant opted for booking of flat and as such reasonable inference that can be drawn is that complainant himself indulged in speculations, while depositing the amounts in question with OPs, but in hope that OPs will get the requisite sanctions as projected by them. So allegations of fraud or of cheating not at all made out from the material produced on record.

9.             Counsel for complainant vehemently placed reliance on composite decision dated 08.02.2018 of Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh delivered in CC No.716, 789, 835 etc. of 2017 titled as Mangal Singh Kondal & others Vs. Bajwa Developer & Another for arguing that refund of the deposited amounts should be with interest @ 12% per annum from the dates of deposit till realisation. That submission of counsel for complainant has no force for purposes of this case, more so when complainant has deposited an amount of Rs.3,31,250/- out of total sale consideration of Rs.13,25,250/- Complainant has deposited as such 25% of the sale consideration amount and as such it is a case in which complainant not sticked to the payment schedule laid down in agreement relied upon by the parties.  In view of this non sticking to the payment schedule plan virtually by complainant, he is entitled for refund of the paid amount with interest @ 12% per annum from the date of first demand put forth by way of filing of this complaint only. Hon’ble State Commission in the above cited case relied upon Rule 17 framed under Punjab Apartment and Property Regulation Act, 1995 for allowing interest @ 12% per annum with effect from the dates of deposits, but in the present case before us, rule applicable is contained in Section 12 of above said Act. Rule 17 has application in cases governed by Section 6 (1) of Punjab Apartment and Property Regulation Act, 1995. That Section 6 (1) of Punjab Apartment and Property Regulation Act, 1995 provides that a promoter intending to construct a building apartment before acceptance of any money as advance payment or deposit, will not accept more than 25% of the sale price and thereafter will enter into written agreement for sale with each of the persons, who are to take possession of apartments/plots. However, Section 12 of Punjab Apartment and Property Regulation Act, 1995 provides that if the promoter fails to give possession in accordance with terms of agreement for reasons beyond his control and of his agents by specified date or further agreed date, then the promoter shall be liable on demand, but without prejudice to any other remedy to which he may be liable, to refund the amounts already received by him in respect of that plot or apartment with simple interest at the rate as may be determined by competent authority from the date the promoter received the sums till the date the amounts and interest thereon is refunded. Present is a case in which OPs failed to get requisite sanctions/approvals from the authorities as per case of complainant himself. If that be the position, then case in hand is governed by Section 12 of Punjab Apartment and Property Regulation Act, 1995 and not by Section 6 (1) of Punjab Apartment and Property Regulation Act, 1995. Rule 17 of Punjab Apartment and Property Regulation Act, 1995 is applicable, when the case governed by Section 6 of Punjab Apartment and Property Regulation Act, 1995. In view of this, by invoking Section 12 of Punjab Apartment and Property Regulation Act, 1995, this Forum has discretion to allow interest at such rate as is reasonable and appropriate in the facts and circumstances of this case. Present is not a case of cheating/fraud as projected by counsel for complainant in view of Clause-6 of agreement, discussed in detail above. Moreover, complainant himself failed to comply with requirements of allotment of Economically Weaker Section category flat, despite specific stipulation contained in Clause-7 of agreement Ex.C-1 and as such complainant not entitled to any interest, till the date he sought refund of the same for the first time. That refund for the first time sought by filing this complaint and not by issue of any notice and as such allowing of interest @ 12% per annum from the date of filing of complaint will be reasonable, proper, equitable and just.

10.            It is also contended by counsel for complainant that OPs accepted amounts in question from complainant for allotment of EWS category flat by assuring as if the flat is in general category. That submission of counsel for complainant again has not much force because after going through Clause-7 of agreement in question, it is made out that duty was cast upon complainant, being purchaser, to comply with the terms and conditions for allotment of flat in EWS category. If OPs have not issued notice to the complainant for calling upon him to comply with requirements for allotment of EWS category flat, then at the same time complainant also remained at fault in not ascertaining as to whether the allotted flat is in general category or is in the category of EWS. So fault also lay with complainant in view of non compliance with the obligation put on him under Clause-7 of the agreement.

11.            OPs claim through written reply as well as affidavits 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 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.

12.            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.

13.            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.3,31,250/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement.

14.           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.3,31,250/- with interest.

15.            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 somewhat hefty amount from complainant, as referred above.

16.            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.

17.            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.

18.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.3,31,250/- (Rs. Three Lakhs Thirty One Thousand Two Hundred Fifty only) with interest @ 12% per annum from the date filing of complaint namely 29.03.2017  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 complainant will be entitled to interest on the amounts of compensation and litigation expenses @ 7% per annum after expiry of said period of 30 days of receipt of certified copy of the order till payment. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

October 04, 2018.

                                                                (G.K. Dhir)

                                                                President

 

                                                       (Amrinder Singh Sidhu)

Member

 

(Mrs. Natasha Chopra)

Member

 
 
[ G.K.Dhir]
PRESIDENT
 
[ Ms. Natasha Chopra]
MEMBER
 
[ Mr. Amrinder Singh]
MEMBER

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