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

Consumer Complaint No.112 of 2018

                                                Date of institution:  24.01.2018                                         Date of decision   :  12.06.2019

Gagan Jyoti son of late Babu Parmanand, resident of 23, B/o Gandhi Nagar, Jammu (J&K).

…….Complainant

Versus

1.     Bajwa Developers Limited, Regd. SCO 210-211, Ground Floor, Above Gopal Sweets, Sunny Business Center, Mohali through its Managing Director/Authorised Representative.

2.     Jarnail Singh Bajwa, Director/Authorised Representative of Bajwa Developers Limited, Regd. SCO 210-211, Ground Floor, Above Gopal Sweets, Sunny Business Center, Mohali

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Shri Sandeep Bhardwaj, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

                Complainant decided to purchase independent residential unit in or around Tricity for own use as well as for use of his family and that is why he approached OPs, who informed the complainant as if  they have got approvals from GMADA. Unit No.368 in Sector 74-A of one BHK was sold to complainant for total price of Rs.12,52,000/-, out of which Rs.3,12,500/- paid by the complainant as per detail given below:-

                Complainant after visiting site found as if OPs have not started any development work at the site. Subsequent frequent visits also led to the complainant to see as if no work carried on the spot despite entering into agreement dated 04.05.2011 for sale of flat in question. It is claimed that amount has been received by OPs without obtaining sanctions, approvals, and permissions from competent authorities in violation of provisions of Punjab Apartment and Property Regulation Act, 1995 (hereinafter referred to as ‘PAPRA Act’). Complainant came to know through information received under RTI Act by one of the purchaser that GMADA vide letter No.3850 dated 06.11.2015 granted license to develop colony in 25 acre of land at village Baliali Sector 74-A/117 on 14.11.2014. However, amounts referred above were accepted before that and as such by pleading contravention  of provisions of PAPRA Act and by claiming that OPs adopted unfair trade practice, this complaint filed for seeking refund of Rs.3,12,500/- with interest @ 18%  per annum from the dates of deposit till payment. Compensation for mental agony and harassment of Rs. 2.00 lakhs and litigation expenses of Rs.1.00 lakh more claimed.  

2.             In reply filed by OPs, it is pleaded as if relationship  of consumer and service provider does not exist; complaint is barred by limitation and this Forum has no jurisdiction. It is claimed that last transaction took place on 04.05.2011,  but this complaint filed in 2018 is barred by limitation in view of Article 24 of Limitation Act, 1963, which provides period of three years for filing a suit. Besides, apartment in question was to be allotted to economically weaker sections of the society, due to which complainant was required to submit income certificate from the competent authority showing as if income of complainant from all sources does not exceed Rs.3.00 lakhs per annum. Certificate of complainant as domicile of Punjab was also required to be submitted alongwith affidavit that complainant or his spouse or dependent children do not possess any flat/apartment in the vicinity of Mohali, Chandigarh and Panchkula, but that affidavit even alleged to be not submitted. Admittedly, agreement in question was arrived at and the complainant paid Rs.3,12,500/- out of sale consideration amount of Rs.12,52,000/-.  Complainant failed to fulfill the condition laid down in Clause-7 of agreement referred in detail above. No continuous cause of action exists and in view of non payment of balance sale consideration amount the contract stands rescinded. Reference to notification No.21/4/2014-IHgII/1891 made in the reply for claiming that complainant does not fulfill eligibility criteria laid down in clauses 2.1 to 2.4 of above said notification regarding allotment of apartment/plot meant for economically weaker sections of the society. It is claimed that complainant is domicile of state of J&K as suggested by head note of the complaint. Complainant has not suffered any financial loss and he himself is guilty of breach of contract because he misrepresented OPs about his status and of income and domicile.

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

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

5.             From perusal of pleadings of parties and submitted affidavit and contents of agreement Ex.C-1, it is established that complainant has purchased one BHK flat BR No.368 from OPs by agreeing to pay Rs.12,52,000/-. However, amount of Rs.3,12,500/- out of that amount was paid on the dates referred above,  regarding which endorsements made on back of agreement Ex.C-1 itself. Being so,  relationship of consumer and service provider exist between the parties, more so when complainant availed services of OPs by agreeing to pay sale consideration amount of flat in part as earnest amount and remaining in installments. So virtually complainant availed services of OPs within meaning of Section 2 (1) (o) of Consumer Protection Act. So submission advanced by counsel for OPs has no force that relationship of service provider and consumer does not exist between the parties.  

6.             It is the positive case of complainant that requisite sanctions and approval by the OPs from concerned authorities not obtained at the time of acceptance of above referred amount of Rs.3,12,500/- on above referred dates, and that  submission of counsel for complainant has force because  perusal of  letter Ex.C-2 shows as if OPs got sanction from GMADA for development of colony in Sector 74-A, 117, Mohali through license No. 21 dated 13.11.2014. This license was granted to the OPs under PAPRA Act as per terms of license, copy of which is enclosed with Ex.C-2. Validity period of license mentioned as 13.11.2014 to 12.11.2019. However, payments were accepted by OPs from complainant much before that i.e. more than two years prior to obtaining of license and as such OPs committed violation of provisions of Section 5 of PAPRA Act.  Besides, it is the positive case of complainant that OPs have not carried out construction activity on the spot.  OPs have not produced on record any document to show that such construction carried on the spot immediately after acceptance of amounts in question. Rather requisite sanction for developing colony got by OPs only on 13.11.2014 from the GMADA as referred above and as such certainly OPs were not in a position to develop colony in question or to raise construction prior to 13.11.2014 at all. Being so, OPs misled complainant while claiming that requisite sanctions/approvals have already been obtained. When there is violation of provisions of Sections 3 and 5 of PAPRA Act, then consumer concerned entitled for refund of paid amount with interest @ 12% per annum from dates of deposits till payment as per law laid down by Hon’ble State Consumer Disputes Redressal Commission Punjab in case titled as Amit Baddhan versus M/s Bajwa Developers Ltd, 2018(1)CPJ 208 and 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 requisite declaration for showing his entitlement to the EWS category flat in question, despite that 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.3,12,500/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in agreement Ex.C-1.

10.           Benefit from ratio of case titled as State of Gujarat Vs. Rajesh Kumar Chiman Lal Barot, AIR 1996 SC 2664 cannot be availed by OPs because of existence of relationship of consumer and service provider between parties in the case in hand. In view of existence of that relationship, this Forum has jurisdiction. Ratio of cited case applicable when the court concerned has no jurisdiction. However, this is not the position in this case. Even benefit from ratio of case titled as Maheswar Patra Vs. Block Development Officer, Panchayat Samiti, Gosani, III (2011) CPJ 480(NC) cannot be got by counsel for OPs because after going through reported case, it is made out that State Govt. refused to supply monthly ration and essential commodities except kerosene in the reported case. That monthly ration of essential commodities to be supplied while discharging executive functions of the Govt. and not on account of existence of contractual obligations consisting of the element of passage of consideration in lieu of goods supplied or services to be rendered.  However, in the case before us part of the price amount accepted by OPs from complainant in consideration of allotting one BHK flat and as such facts of the reported case are quite distinguishable than those of the case before us.

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.3,12,500/- (Rs. Three Lakhs Twelve  Thousand Five  Hundred only) with interest @ 12% per annum from the dates of deposits  till payment. Compensation for mental agony and harassment of Rs.25,000/-  (Rs. Twenty Five 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

June 12, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member