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

Consumer Complaint No.364 of 2017

                                                Date of institution:  23.05.2017                                         Date of decision   :  11.10.2018

Manohar Singh son of Shri Harbans Singh, having permanent address at House No.115, Ward No.2, Mundi Kharar, District Mohali.

…….Complainant

Versus

1.     Bajwa Developers Ltd. having its registered office at SCO 17-18, Sunny Enclave, Sector 125, Desumajra, Kharar, District SAS Nagar Mohali -140301 through its Managing Director, Jarnail Singh Bajwa.

2.     Shri Jarnail Singh Bajwa, Managing Director son of Shri Bishan Singh,  SCO 17-18, Sunny Enclave, Desu Majra, Kharar, District SAS Nagar Mohali, Punjab -140301.

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Ms. Rameet Bakshi, counsel for complainant.

                Shri R.P. Sharma, counsel for OPs.

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

Order

               Complainant purchased a plot in re-sale in the residential project named and styled as “New Friends Enclave”, a housing group of PGI & P.U. Employees in Sunny Enclave, Sector 124, Mohali. Complainant was assured by OPs that development works will be carried out expeditiously and possession of the plot will be delivered within one or two years. Even complainant was disclosed as if approximately 150 people getting together as a group and the loan facility would be made available from certain banks to them.  125 sq. yards plot was agreed to be purchased @ Rs.15,500/- per sq. yard with total sale consideration price of Rs.19,37,500/-. An amount of Rs.4,84,375/- alongwith transfer fee was paid and thereafter an agreement was arrived at between the parties.  That agreement was containing schedule of payment plan. In the agreement signed on 09.02.2013, mention of New Friends Enclave was not at all made, but of Sector 124 alone was made. Dates regarding payment had already passed and on resentment shown by complainant another payment schedule was handed over to complainant. As per schedule, balance 75% of total cost of plot was payable in installments. 20% was payable after approval of CLU, but 25% was payable after approval of lay out plan, whereas next 25% was payable after start of development of the project, but balance 10% as full and final amount was payable at the time of delivery of possession or execution of registered sale deed. Though complainant requested OPs for incorporating schedule of payment in the agreement, but OPs expressed their inability to do so because agreement has already been prepared in the standard format. OPs assured complainant that he would be required to make further payments only after receiving of various approvals. An amount of Rs.4,34,375/-, being 25% of the total sale price of the plot was paid by complainant to OPs as per demand on 09.02.2013. Receipt of acknowledgement of total amount of Rs.4,84,375/-  was issued by OPs on the back of first page of agreement. Thereafter balance amount of Rs.3,87,500/- being 20% of cost of plot was paid through cheque dated 22.07.2013 regarding which also acknowledgement made on the back of agreement itself. OPs have not received approval of CLU for the project and that is why further communication from OPs not received regarding progress of the project. Complainant visited OPs number of times for enquiring about development of the project, but no satisfactory reply was received from the staff of OPs. After about 2-1/2 years, complainant received call from office of OPs that draw of plots will be held on 19.10.2014 and in that draw, plot No.308 was allotted to complainant. Copy of slip acknowledging about the allotment of said plot was handed over to complainant. Few months thereafter, complainant got knowledge from other buyers that OPs have not received approvals for the proposed colony. Complainant personally visited site in June, 2015 and was shocked to know that no development work regarding basic amenities started, but land was lying vacant. Again complainant after visiting office of OPs expressed concern regarding non development of plots even after lapse of three years.  When complainant went to State Bank of India, PGI Branch for enquiring about loan under group loan scheme for New Friends Enclave allottees, then he was shocked to get information that group loan scheme is scrapped. On further contact to OPs, complainant was called upon to return back the old agreement so that new agreement as signed may be provided to him for incorporating plot number allotted to complainant. Complainant visited OPs in July, 2015 and at that time after taking old agreement, new agreement was handed over to complainant in which plot No.308 was mentioned, but change of the sector number done by overwriting from 124 to 123. That was done without consent and knowledge of complainant by way of misrepresentation and as such complainant after feeling dissatisfied and helpless sought refund of amount because of violation of provisions of PAPRA Act, 1995 committed by OPs. Through this complaint, complainant is seeking refund of the paid amount of Rs.8,71,875/- with interest @ 12% per annum from the dates of deposits till realisation. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.11,000/- more claimed.

2.             In reply filed by OPs, it is pleaded inter alia as if this Forum has no jurisdiction because transaction between parties was purely based on agreement for sale of plot for total consideration of Rs.19,37,500/-  and that this Forum has no pecuniary jurisdiction because worth of the plot was Rs.19,37,500/- excluding charges @ Rs.2,250/- per sq. yard of amount of Rs.2,81,250/-. So total worth of the plot was Rs.22,18,750/-. It is claimed that complainant committed default in payment of installments and that is why earnest amount liable to be forfeited in view of Clause-3 of the agreement. Moreover, it is claimed that complainant is estopped by his act and conduct from filing the complaint because he failed to pay installments within stipulated period as provided by agreement. Relationship of consumer and service provider do not exist between parties because complainant is not consumer. Moreover, complaint alleged to be filed for abusing process of law with a view to harass and blame the OPs and as such prayer made for dismissal of frivolous and vexatious complaint with costs. Sale of plot in question or receipts of amounts referred above or price of the plot as Rs.19,37,500/- are admitted facts. Admittedly complainant was allotted plot No.308 in draw of lots, but due to revision of lay out plan, area of plot was changed from Sector 123 to 124 in 2015. Complainant never objected to same till filing of present complaint or at the time of issuing the legal notice.  OPs were authorised to change the plot, size and area as per Clause-7 of the agreement and as such this complaint alleged to be filed just for saving interest of complainant after finding that there is slump in the market, due to which good price of the plot will not be fetched. OPs have already got license to develop colonies and have got the master plan of Sector 123-124 approved from competent authority in which chunk of area named as New Friends Enclave exist. No separate license for developing this enclave was required. Other averments of the complaint denied.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.
C-11 and then closed evidence.  On the other hand counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Managing Director and thereafter closed evidence.

4.             Written arguments not submitted. Oral arguments of counsel for parties heard and records gone through.

5.             From perusal of complaint, contents of affidavit Ex.CW-1/1 and reply as well as affidavit Ex.OP-1/1 of Director of OPs, it is made out that agreement Ex.C-3 was arrived at between parties in pursuance of which amount of Rs.3,87,500/- was        deposited by complainant with OPs through cheque Ex.C-4. In the receipts annexed with the subsequent agreement Ex.C-7 of same date, it is specifically admitted as if amount of Rs.4,84,375/- plus amount of Rs.3,87,500/- have been received on different dates by OPs from complainant and as such certainly documents produced by complainant alongwith contents of  reply submitted by OPs enough to establish that complainant has deposited sum of Rs.8,71,875/- in all with OPs for getting the plot. Copy of schedule of payment is produced as Ex.C-2, as per which 20% of the total cost of plot payable after approval of CLU, but 25% of total cost payable after approval of lay out plan and 20% of total cost payable after start of development of the project, but 10% final at the time of delivery of possession or registration of sale deed. Total worth of the plot was Rs.19,37,500/- is a fact borne from contents of agreements Ex.C-3 and Ex.C-7 each. So it is obvious that complainant deposited about 45% of sale consideration amount. That amount has not been deposited as per schedule of payment mentioned in agreements Ex.C-3/C-7 because only earnest amount and first installment payable by 10.10.2012 was deposited. That deposit also was made late and as such complainant did not stick to payment plan schedule, due to which fault lays with complainant in not sticking to payment plan schedule. So, fault in that respect remained with complainant.

6.             Complainant came in possession of agreement Ex.C-3 dated 09.02.2013 on execution of same for finding that  paid amounts mentioned in the receipt annexed with Ex.C-3 as well as Ex.C-7 and as such certainly it is a case in which complainant got knowledge of payment plan of installments alongwith due dates of payment of installments. Complainant has not taken any steps for raising objection that Sector 123 is not correctly mentioned in Ex.C-7, despite the fact that earlier Sector 124 was mentioned in agreement Ex.C-3. This complaint has been filed by complainant on 23.05.2017 and if contents of complaint taken on its face value that complainant was handed over new agreement in 2015, even then it is made out  that complainant remained silent for more than two years before filing of present complaint for agitating about incorrectness of the mentioned Sector 123 in Ex.C-7. This silence on part of complainant shows that he acquiesced with OPs in mentioning terms and conditions in Ex.C-7. So certainly now complainant estopped by his act and conduct from claiming that in fact terms of Ex.C-7 are incorrect or that wrong sector mentioned therein. In such circumstances, explanation offered by OPs through affidavit Ex.OP-1/1 of its Director is correct that at the request of complainant for coming in Sector 123 in area of Greater Mohali, new agreement was provided by mentioning Sector 123. Further contents of Para No.4 of affidavit Ex.OP-1/1 are correct that area of Sector 123 was duly notified in Punjab Govt. gazette on 18.06.2013 and as such plot in question forming subject matter of Ex.C-7 is under approved project scheme. It was only in the legal notice Ex.C-9 sent through postal receipt Ex.C-10 that issue was raised for the first time regarding change of Sector 123 from 124. So this issue was raised virtually after more than one year and 9 months of alleged receipt of agreement Ex.C-7 by complainant in July, 2015 as pleaded in the complaint and in Para No.15 of the legal notice Ex.C-9. Long silence on part of complainant now denudes him from agitating this matter on the basis of afterthought version.

7.             It is pleaded case of complainant himself that in the draw of lots plot No.308 was allotted to him. Reference of this plot No.308 is not at all made in Ex.C-3, but it is made in subsequent agreement Ex.C-7 and as such it is obvious that virtually agreement Ex.C-7 executed with the same terms on which agreement Ex.C-3 was arrived at, but plot No.308 mentioned in Ex.C-7 due to change of circumstances on account of allotment of plot No.308 to complainant in draw of lots held on 19.10.2014. That fact is pleaded in Para No.9 of complaint as well as affidavit Ex.CW-1/1 of complainant and also in the legal notice Ex.C-10. This also reflects that agreement Ex.C-7 makes mention of correct position qua plot number and the sector number agreed to be actually purchased by complainant.

8.             It is claimed through Para No.3 of affidavit Ex.OP-1/1 of Baldev Singh Bajwa, Director of OPs that on request of complainant for shifting from Sector 124 in area of Greater Mohali to Sector 123 in area of Greater Mohali, agreement dated 11.04.2012 was reduced into writing for mentioning the size of plot as 150 sq. yards in Sector 123. However, size of the plot even in Ex.C-7 is mentioned as 125 sq. yards and such plea taken in affidavit Ex.OP-1/1 in this respect is not correct.  However, submissions of counsel for OPs cannot be said to be incorrect, more so when complainant talked about non getting of approvals by OPs just on the basis of hearsay version of buyers. Affidavits of none of those buyers produced and nor names of those persons mentioned with dates, on which the said information disclosed to complainant. Being so, on vague and general allegations it cannot be held that approvals for project in Sector 123 were not obtained by OPs.

9.             Photographs Ex.C-1, C-6 and Ex.C-8 shows as if some development work alone carried on the spot because construction of some houses shown to be existing in some of these photographs. However, remaining land is lying vacant and as such it is obvious that it is not a case in which development activity not carried at all on the spot. Rather it is a case in which some development activity carried on the spot and that is why construction of some houses shown in these photographs.  So submission advanced by counsel for complainant has no force that altogether no development activity carried on the spot.

10.           It is also contended through arguments submitted by counsel for complainant that verbal assurance was given by OPs to complainant for making loan facility available from bank, but no such assertion found in agreements Ex.C-3 or Ex.C-7 and as such submission advanced by counsel for OPs has force that actually such assurance was never given, more so when grant or non grant of loan depends on the CIBIL score of the loanee alongwith source of income or of return back of loan amount. So, allegation regarding assurance of getting loan provided by OPs to complainant is incorrect.

11.           It is contended by counsel for complainant that approval of CLU for the project has not been received by OPs, but despite that complainant had been forced to pay amount of Rs.3,87,500/- by issue of notice, due to which he had to pay the said amount on 22.07.2013 and as such unfair trade practice adopted by OPs. That submission of counsel for complainant does not seem to be having force because contents of affidavit Ex.OP-1/1 of Director of OP Company shows that approval of the project had already been obtained, but due to change of lay out plan, sector number is changed. It is claimed through Para No.4 of affidavit Ex.OP-1/1 that area of Sector 123 was duly notified in Punjab Govt. Gazette on 18.06.2013, whereby exemption from operation of Punjab Apartment and Property Regulation Act was given to OPs. No record produced to show that such sanction for development of Sector 123 has been obtained by OPs. Even though information collected under RTI shows that license for developing New Friends Enclave in Sector 124 is not granted by PUDA/GMADA, but it is the claim of OPs that area in Sector 123 has been developed and plot is ready for possession since from June 2014 and the same fact cannot be held to be incorrect altogether more so when in photographs Ex.C-1, Ex.C-6 and Ex.C-8, existence of some of fully constructed houses is visible. As plot is ready for delivery and as such counsel for OPs contends that complainant may take possession of the plot in Sector 123, but that offer not accepted by counsel for complainant by contending that complainant to get back the deposited amount with interest from the dates of deposit. It is admitted by complainant in complaint itself that last of the payment was made on 22.07.2013, but if contents of Ex.C-3 and Ex.C-7 taken into consideration, then this means that 20% of the amount was payable after CLU, but balance 25% was payable as first installment on 10.10.2012, whereas balance 20% was payable on 10.01.2013 as second installment and remaining 10% was payable finally on possession/registration. As complainant himself has paid the first installment of Rs.4,84,375/- and even paid amount of Rs.3,87,500/- virtually and as such those payments made by complainant after acknowledging as if CLU has been got by OPs. So even in the absence of production of record that OPs have obtained the requisite sanctions for developing Sector 123, submission advanced by counsel for OPs has force that actually license for developing sector 123 was already available with OPs. In such circumstances, non sticking to payment schedule by complainant denudes him from claiming interest from the dates of deposit, more so when 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.  Being so entitlement of complainant for claiming interest will be with effect from the date of first ever demand of refund put forth through notice Ex.C-9 dated 10.04.2017. Complainant in this case has deposited Rs.8,71,875/- out of total sale consideration of Rs.19,37,500/- and as such virtually he deposited 45% of the total sale consideration amount only.

12.           Counsel for complainant vehemently placed reliance on decision rendered by Hon’ble State Consumer Disputes Redressal Commission in Consumer Complaint Nos.1071, 1072, 1099 and 32 decided through common order dated 19.04.2018 titled as Sarwan Singh Kalsi  and others Vs. Bajwa Developers Ltd. for arguing that complainant entitled for interest @ 12% per annum from the different dates of deposits till actual payment. Present case is a case in which OPs offering to give possession but complainant denying to get possession just by claiming that he is entitled for refund of the entire paid amount only. As per Section 12 of Punjab Apartment and Property Regulation Act, 1995, 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.  However, present is not a case in which OPs denying to deliver possession, but they are claiming as if plot is ready for delivery since from 2014, but it is complainant himself who has not adhered to payment plan and as such in view of ratio of case of Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. (supra) and in view of provisions of Punjab Apartment and Property Regulation Act, 1995, entitlement of complainant for interest will be with effect from the date of first ever demand put forth for refund and not before that.

13.          Complainant certainly is consumer of OPs within meaning of Section 2 (1) (d) of CPA because he availed services of OPs for purchase of plot on payment of part of sale consideration with promise of paying balance amount on execution of sale deed or on getting of possession of plot 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.8,71,875/- with interest.

14.           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.

15.           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.

16.           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.

17.           As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.8,71,875/- (Rs. Eight Lakhs Seventy One Thousand Eight Hundred Seventy Five only) with interest @ 12% per annum from the date issue of notice namely 10.04.2017  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 11, 2018.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member