DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.608 of 2016
Date of institution: 20.09.2016 Date of decision : 07.03.2018
Harpreet Singh son of Shri Prem Singh, resident of Street No.3, Sunder Nagri, Abohar (Punjab).
…….Complainant
Vs
1. M/s. Bajwa Developers Limited, New Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali (Punjab) through its Managing Director Shri Jarnail Singh Bajwa.
2. Shri Jarnail Singh Bajwa son of Shri Bishan Singh, Managing Director of M/s. Bajwa Developers Limited, New Sunny Enclave, Desu Majra, Tehsil Kharar, District 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 Gaurav Gupta, counsel for complainant.
Shri Arvind Kashyap, counsel for the OPs.
Order by :- Shri G.K. Dhir, President.
Order
On assurance of OPs that the project in Sunny Enclave passed by competent authorities and the requisite permissions had already been obtained, an agreement to sell dated 27.05.2011 was arrived at between complainant and the OPs, as per which complainant was to purchase one BHK BR 196: 1196 measuring 450 sq. feet in Sector 74-A, 117, Mohali at total price of Rs.12,52,000/-. Complainant paid amounts of Rs.1.00 lakh; Rs.1,12,500/-; Rs.1.00 lakh and Rs.1,87,500/- on different dates. In this way total amount of Rs.5.00 lakhs was paid and the balance sale consideration was to be paid in installments by 22.11.2012 as per schedule of payment. OPs assured that the development work will be commenced on the site and after completion of the same, possession of the flat will be handed over to complainant by executing and registering sale deed in favour of complainant. After making payment of earnest amount, complainant visited the site in question several times and approached OPs for updating the status of development, but OPs kept on falsely assuring that the construction would start soon. Time of execution was extended several times orally by OPs. No development work has commenced on the site and nor any construction work of flat started and as such OPs failed to perform their part of agreement for the last more than 5 years. Complainant made all the payments due to misrepresentation made by OPs time and again. OPs have adopted unfair trade practice by falsely pretending as if the scheme is approved, despite the fact that same is not the position. Complainant finally approached OPs in last week of July, 2016 for asking them either to refund the received amount of Rs.5.00 lakhs with interest @ 18% per annum or handover the possession of flat in question after receiving the balance sale consideration amount, but OPs arrogantly refused to refund the amount by threatening the complainant with dire consequences. So this complaint for seeking direction to OPs to refund the received amount of Rs.5.00 lakhs with interest @ 18% per annum from 16.04.2011 till realisation. Compensation for mental harassment and agony of Rs.5.00 lakhs and litigation expenses of Rs.50,000/- more claimed.
2. In reply submitted by OPs, it is pleaded inter alia that this Forum has no jurisdiction to try the present complaint because the transaction between complainant and OPs is purely a transaction of agreement of sale of apartment for total sale consideration of Rs.12,52,000/- and complainant has failed to deposit the installments as per agreement. Complainant got the flat booked after fully knowing that approvals yet to be got by OPs. It is claimed that OPs are putting extra efforts for getting the approvals. In view of default in payment of installments, the amount paid by complainant liable to be forfeited, but this complaint has been filed with novel idea of seeking refund with interest. Rather it is claimed that as per terms of agreement, amount of Rs.3,13,000/- out of deposited amount of Rs.5.00 lakhs liable to be forfeited. Complainant alleged to be estopped by his act and conduct from filing the complaint because the agreement has become void. In view of that, complainant cannot derive his rights from a void and non existing document now. As per Clause-3 of the agreement, the earnest paid amount liable to be forfeited in case the purchaser failed to deposit the agreed amount within 15 days from due date. No cause of action has accrued in favour of complainant because relationship of consumer and service provider do not exist between the parties. OPs have got all the approvals and the licences for developing the colony from GMADA, but complainant has got the flat for speculative purposes for selling the same at premium as and when good price fetched in open market. Fact regarding approval of project in process is mentioned in Para No.6 of the agreement. As per Para No.6 of the agreement in case the land could not be passed, then buyer will be entitled for refund of the deposited amount and not to any other compensation amount. Complaint alleged to be barred by limitation because the agreement was arrived at on 27.05.2011 and complainant failed to deposit the installments in time. OPs never assured complainant that the project is approved, but execution of agreement dated 27.05.2011 is admitted. Other averments of the complaint denied.
3. Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-3 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 OP and thereafter closed evidence.
4. Written arguments in this case submitted by both the parties. Oral arguments heard and records gone through.
5. After going through pleadings of the parties and the submitted affidavits, it is made out that agreement for sale dated 27.05.2011 was executed between the parties and copy of the same is produced on record as Ex.C-1. It is endorsed on the back of this agreement Ex.C-1 itself as if amount of Rs.5.00 lakhs in all has been received by OPs from complainant during period from 16.04.2011 to 16.11.2011. Detail of received payments with dates endorsed in print as well as in writing on the back of Ex.C-1 itself. Total sale consideration payable was Rs.12,52,000/- as per this agreement. Schedule of payment is given in Clause-2 of this agreement Ex.C-1 itself.
6. As per schedule of payments, amount of Rs.3,13,000/- was payable as earnest money upto 22.05.2011, whereas Rs.1,87,800/- as first installment was payable by 22.09.2011 and four other installments of Rs.1,87,800/- each were payable by 22.01.2012, 22.05.2012, 22.09.2012 and 22.11.2012. As complainant has paid amount of Rs.5.00 lakhs only uptill 16.11.2011, despite the fact that cumulative amount of Rs.6,88,600/- as per schedule was payable upto 22.01.2012 and as such it is vehemently contended by counsel for the OPs that complainant has failed to abide by terms of schedule of payment of installments, due to which he has committed breach of buyers agreement. Even if this breach of terms of schedule of payment of installments committed by complainant, but despite that it is OPs who are claiming the agreement as void through contents of Para No.5 of reply and the corresponding para of the affidavit and as such certainly complainant entitled for refund of the paid amount of Rs.5.00 lakhs in view of Section 64 and 65 of the Indian Contract Act. These sections 64 and 65 of the Indian Contract Act provides that when an agreement is void or voidable at the option of one of the party, then the party declaring the agreement as void or seeking the declaration of same as voidable, bound to reimburse the benefits received under that agreement to the party from whom those benefits got by it. So in view of specific plea taken by OPs in Para No.5 of reply that the agreement has become void, OPs cannot retain the benefits, but have to return back the same from whom they received. So certainly OPs bound to return back the received amount of Rs.5.00 lakhs to complainant.
7. After going through Clause-6 of Ex.C-1, it is made out that in case due to any technical defect, approvals from authorities concerned could not be obtained, then the purchaser will be entitled for refund of the paid earnest amount, but not the possession. Completion of the project has not been done on the spot, is the case of complainant and as such fault lays with OPs in not completing the development works, due to which by invoking Clause-6 of Ex.C-1 complainant certainly is entitled for refund of the paid amount. Perusal of copy of resolution dated 05.03.2015 passed by Administrator of Municipal Council, Kharar reveals that OPs themselves claimed as if they are not to get approvals for developing the residential colony and that is why further steps for seeking such approvals from Town Planner were not taken. In item No.1 of this resolution, it is mentioned that due to recession in the market, OP No.1 has withdrawn the request for seeking permission for development of the colony known as Imagine City-1 and as such virtually fault is attributable to OPs in not proceeding ahead with the sought for permissions/approvals from the competent authorities. Likewise item No.2 of the resolution dated 05.03.2015 of the Administrator of Municipal Council, Kharar is on the same lines as are the contents of item No.1 of above said resolution. As withdrawal of request for approvals put forth by OPs themselves and as such they cannot retain the amount deposited by complainant by way of forfeiture of any part thereof. If fault lies with complainant in not paying the installments in time, then fault also lies with OPs in not getting the approvals in time. Rather information regarding above said resolutions was got by one Rajinder Pal under Right to Information Act is revealed by contents of Ex.C-2. OPs also are at fault in not seeking the sought for permissions, despite the fact that assurance was given through Ex.C-1 that such permissions will be got. So in case OPs allowed to retain any part of the deposited amount by complainant, then the same will amount to unjust enrichment of OPs, which is not legally permissible at all. As 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 filing of this complaint namely 20.09.2016 till payment.
8. It is projected through written arguments submitted by complainant that refusal to handover possession was made by OPs in the last week of July, 2016 and even refusal for refund of the paid amount was made at that time and as such virtually cause of action for refund of the paid amount arose to complainant in July, 2016. Besides, even if the agreement Ex.C-1 may have been executed on 27.05.2011, but complainant was expecting as if flat in question will be delivered to him by OPs and as such complainant was having recurring cause of action till he got the final refusal from OPs in respect of delivery of possession or refund of price. That final refusal as per claim of the complainant was made in July, 2016 and as such this complaint being filed on 20.09.2016 is within limitation.
9. Even if condition No.3 in agreement Ex.C-1 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 OPs themselves have sought withdrawal of approvals submitted with scheme Town Planner authorities as revealed by resolution of Municipal Council, Kharar dated 05.03.2015 which is part of Ex.C-2 and Ex.C-3.
10. 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.
11. 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. That interest @ 12% per annum is appropriate in this case, more so when complainant himself remained dormant in not filing the complaint at the earliest even after visiting the spot several times for ascertaining the status of development. In Para No.4 of the complaint itself, it is mentioned that on various visits by complainant, he found the construction work on the spot to have not been started and if that be the position, then it was for complainant to explain as to why he did not file the complaint at the earliest, because misrepresentation came to the notice of complainant during such visits, but dates or months or year not specified deliberately in the complaint in that respect. Moreover, complainant himself defaulted in paying installments as per schedule, and as such in view of agreement Ex.C-1, being not a one way traffic in its terms and conditions, it is fit and appropriate to allow interest on the amounts paid with effect from the date of filing of complaint namely 20.09.2016 till payment.
12. 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 the 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.
13. As a sequel of above discussion, complaint allowed with direction to OPs to refund the received amount of Rs.5.00 lakhs with interest @ 12% per annum with effect from the date of filing of complaint namely 20.09.2016 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 07, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
