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

Consumer Complaint No.340 of 2018

                                                Date of institution:  21.03.2018                                             Date of decision   :  12.02.2019

Mandeep Nayyar son of Shri Deepak Nayyar, resident of House No.802, Sector 2, Panchkula.

…….Complainant

Versus

Bajwa Developers Limited, through its Managing Director Jarnail Singh Bajwa, registered office at Sunny Enclave, Village Desu Majra, Tehsil Kharar, District Mohali.

                                                            ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Rajbir Singh, counsel for complainant.

                Shri Amit Sharma, counsel for OP.

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

Order

               After going through advertisements, complainant got booked one BHK Flat having area of 450 sq. ft. in Sunny Apartment F-21, Sector 74-A, SAS Nagar, Mohali for a total sale consideration of Rs.12,52,000/-. Rs.3,12,500/- was paid upto 01.06.2011 because Rs.2.00 lakhs were paid on 19.04.2011, but Rs.1,12,500/- on 01.06.2011. Complainant was made to sign agreement dated 01.06.2011 through which promise was made for delivery of possession of flat within two years from the date of agreement i.e. by 18.04.2013.  Construction on the project site not started despite lapse of more than six years. It is claimed that OP has no license/CLU obtained from competent authority for developing the colony/housing society project, wherein flat sold to complainant is situate. CLU was granted by GMADA to OP only on 19.05.2014. It is claimed that OP has committed violation of terms and conditions of PAPRA Act and the rules framed thereunder. As OP was not having permissions from competent authorities and as such money received by it by alluring complainant and general public was collected by adopting unfair trade practice. When request for refund of entire amount alongwith interest and compensation for causing mental harassment submitted by complainant, then OP sent letter dated 12.08.2017 for claiming as if flat sold is meant for economically weaker sections of the society. However, it is claimed that complainant was not made aware of any such claim at the time of sale of flat. Instead of refunding the amount, OP is pressing complainant to invest money in another project of OP. By claiming that OP adopted unfair trade practice, this complaint filed for seeking refund of amount of Rs.3,12,500/- with interest @ 18% per annum from the dates of deposits till realisation. Compensation for mental harassment and agony of Rs.3,50,000/- and litigation expenses of Rs.55,000/- more claimed.

2.             In reply filed by OPs, it is pleaded inter alia as if complaint being barred by limitation is not maintainable and that relationship of service provider and consumer do not exist because flat meant for economically weaker sections of the society was sold at subsidized price and complainant obtained consent of OP by misrepresentation. Admittedly agreement dated 01.06.2011 was arrived at, but it is claimed that period of three years for seeking refund expired on 01.06.2014. There is no continuing cause of action available in favour of complainant. Complainant failed to pay balance amount, despite the fact that possession of flat became ready for delivery in June, 2014. No advertisement whatsoever was put forth for sale of one bed room, hall and kitchen at Sector 74-A, Mohali. Complainant despite requirement has not submitted certificate showing that his income from all sources does not exceed Rs.3.00 lakhs per annum. Even complainant has not submitted certificate showing his domicile of State of Punjab. Even affidavit has not been submitted by complainant for showing that neither he nor his spouse or the dependent children own any other house/plot/flat in vicinity of Mohali, Chandigarh and Panchkula. Admittedly complainant paid Rs.3,12,500/- by way of earnest amount out of settled sale consideration amount of Rs.12,52,000/-. Possession was never agreed to be delivered within two years from the date of agreement. OP was having all necessary permissions and sanctions obtained from competent authorities before launching of project. Complainant was required vide letter dated 12.08.2017 to submit income tax certificate from the competent authority. That letter was issued for seeking compliance of Clause-7 of terms and conditions of agreement.  Complainant gave his address as resident of House No.802, Sector 2 Panchkula (Haryana). Reference to Clauses 2.1 to 2.4 of notification No.21/4/2014-1HgII/1891 issued by Govt. of Punjab, Department of Housing made in extenso in the written statement. It is claimed that complainant is guilty of committing fraud with OP because of concealment of his status of being domicile of State of Haryana. Other averments of the complaint denied.

3.             Complainant to prove his case tendered in evidence his affidavits Ex.CA alongwith documents Ex.C-1 to Ex.C-4 and then 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.             Undisputedly agreement Ex.C-1 was arrived at between the parties. It is admitted by OP in written reply as well as through submitted affidavit Ex.OP-1 of its representative that complainant has deposited Rs.3,12,500/- with OP during period from 19.04.2011 to 01.06.2011. That fact even borne from endorsements of receipts with dates made under signatures of Shri J.S. Bajwa, Managing Director of OP on the back of first page of agreement Ex.C-1. So certainly complainant able to establish as if he deposited Rs.3,12,500/- with OP in consideration of purchase of one BHK flat having area of 450 sq. ft. Total sale consideration of said flat mentioned as Rs.12,52,000/- in agreement Ex.C-1 itself.

6.             After going through agreement Ex.C-1 it is made out that complainant was to pay Rs.3,13,000/- as earnest amount on 01.06.2011 and thereafter he was to pay balance amount in 5 installments of Rs.1,87,800/- each on  01.10.2011, 01.02.2012, 01.06.2012, 01.10.2012 and 01.12.2012. However, complainant paid only amount of Rs.3,12,500/- and as such certainly fault lay with complainant in not sticking to payment plan, is contention of counsel for OPs. Reason for non deposit of these amounts was that OP was not having CLU available with it untill 19.05.2014 and as such OP could not have started development work on the project. Only after receipt of CLU from GMADA, OP could have started construction on the site, but CLU was obtained on 19.05.2014 is a fact borne from Para No.12 of order Ex.C-3 dated 16.05.2017 passed by Permanent Lok Adalat (Public Utility Services), SAS Nagar (Mohali). That order also pertains to the flat bearing No.1567 situate in Sector 74-A, 117, SAS Nagar Mohali. OP is unable to produce any evidence on record to establish that it was having CLU prior to 19.05.2014. However, payment of Rs.3,12,500/- accepted from complainant by OP during period from 19.04.2011 to 01.06.2011 as referred above and as such it is obvious that OP accepted above referred amounts from complainant even two years and 10 months prior to getting of approval from competent authorities like GMADA. It was in view of this that Clause No.6 in Ex.C-1 was incorporated to the effect that in case approvals from competent authorities could not be obtained, then purchaser will be entitled for refund of earnest amount without claim of any interest. So it is obvious that virtually OP was aware as if CLU was not obtained by it at the time of execution of agreement Ex.C-1 and that is why such condition No.6 put forth in agreement Ex.C-1. So certainly this is an act of unfair trade practice on part of OP.
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.             It is vehemently contended by counsel for OP that complainant failed to comply with terms of Clause-7 of agreement Ex.C-1 providing for allotment of flat to economically weaker sections of society. It is vehemently contended that neither any affidavit showing domicile of complainant of Punjab State submitted and nor certificate of annual income of complainant being less than Rs.3.00 lakhs has been submitted, albeit so required by notification issued by Punjab Govt. Perusal of agreement Ex.C-1 itself reveals that address of complainant Mandeep Nayyar given as resident of House No.802, Sector 2, Panchkula which is enough to establish that OP was made aware at the time of execution of agreement Ex.C-1 as if complainant is resident of Panchkula. As requirement of submission of domicile certificate or of certificate showing annual income of complainant less than Rs.3.00 lakhs were within knowledge of OP, being builder and as such OP must have insisted for compliance of these requirements before entering into agreement Ex.C-1. However, compliance of these conditions not got done by OP deliberately because it was aware that still sanctions for development works had to be obtained from competent authorities.

8.             Complainant has placed on record letter dated 12.08.2017 Ex.C-2 sent by OP for calling upon complainant to comply with conditions laid down in Clause-7 of agreement. This notice Ex.C-2 is dated 12.08.2017, but payments were received 6 years and two months prior thereto by OP from complainant and as such it is obvious that complainant has brought on record true facts, but OP deliberately evaded the issue of such notice Ex.C-2 earlier to complainant. It is the case of complainant that he was not made aware of requirement of allotment of flat in question to economically weaker sections of society and that submission of counsel for complainant has force because notice Ex.C-2 was issued after complainant sought refund of amount on finding that CLU obtained after lapse of more than two years and 11 months of payments. So it is not a case in which complainant committed fraud with OP.

9.             Even if assuming for arguments sake that consent of OP 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 OP 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 this agreement.

10.           Complainant certainly is consumer of OP within meaning of Section 2 (1) (d) of CPA because he availed services of OP 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 OP has not developed the project and as such fault lays with OP in not fulfilling promise of delivering the possession to complainant. For that fault of OP, complainant cannot be made to suffer and as such on equitable considerations also, complainant entitled for refund of paid amount of Rs.3,12,500/- 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 OP 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 OP has 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 OP 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 OP 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.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  OP.  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

February 12, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member