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

Consumer Complaint No.31 of 2017

                                                Date of institution:  10.01.2017                                             Date of decision   :  21.12.2018

Ms. Rashi Jhang daughter of Mr. Rakesh Jhang, resident of 106, Sector 36-A, Chandigarh.

…….Complainant

Versus

1.     The Managing Director,  Bajwa Developers Limited, Sunny Enclave, Sector 125, Near KFC, 5^th Floor, Desu Majra, District SAS Nagar, Mohali.

2.     The Manager (Sales), Bajwa Developers Limited, Sunny Enclave, Sector 125, Near KFC, 5^th Floor, Desu Majra, District SAS Nagar, Mohali.

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Pankaj Maini, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

               Complainant booked one BHK Flat BR No.(357) 1357 having 450 sq. ft. of area approximately by agreeing to pay Rs.12,52,000/- as total sale consideration. Agreement dated 17.04.2011 was executed and that is why complainant paid Rs.6,87,800/- on different dates. As per schedule of payments, final payment was to be made on 07.11.2012, the date of delivery of possession. Complainant paid following amounts:

                Agreement was executed with assurance to deliver possession in end of 2012 despite the fact that requisite permission from GMADA for setting up residential colony in Sector 117, 74-A were not obtained by OPs. Permission was got by OPs from GMADA on 19.05.2014 subject to approvals obtained from other statutory bodies. OPs adopted unfair trade practice in accepting hefty amount from customers at the time, when they were having no requisite sanctions available for raising of construction. Letter dated 19.05.2014 was issued by GMADA authorities vide which letter of intent was issued subject to fulfillment of other requirements. OPs accepted amounts before November, 2012 from complainant for defrauding her. This complaint filed for seeking refund of the deposited amount of Rs.6,87,800/- with interest @ 18% per annum and also for claiming compensation.

2.             In reply filed by OPs, it is pleaded inter alia as if complaint is barred by limitation in view of Article 54 and Section 27 of Indian Limitation Act read with Section 24-A of the Consumer Protection Act because agreement was arrived at on 10.05.2011 and last payment of Rs.1,87,800/- was made by complainant on 03.07.2012, but present complaint filed on 10.01.2017 i.e. even after more than four years of accrual of cause of action. Besides, it is claimed that complainant is not consumer within meaning of Section 2 (1) (d) of Consumer Protection Act because flat meant for EWS categry of society got booked by complainant by concealing her identity of being affluent member of the society after keeping OPs in dark. Factum of raising construction and delivery of possession of flat was limited to payment plan, but complainant herself failed to make payments as per payment schedule and as such in view of Clause 3 of agreement, earnest amount liable to be forfeited. Besides violation of Clause 7 of terms and conditions of agreement alleged by complainant by not furnishing documents in support of her claim of belonging to EWS category of the society as prescribed by Punjab Govt. Admittedly agreement dated 10.05.2011 was executed between parties and complainant had paid Rs.6,62,800/- in all. Other allegations regarding delivery of possession by end of November, 2012 denied, one by one each. It is claimed that consent of OPs was obtained by fraud by concealing material facts regarding status of complainant and as such agreement is void abinito and is not enforceable.

3.             Complainant to prove her case tendered in evidence her 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 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 heard and records gone through.

5.             OPs have admitted in the written reply having received Rs.6,62,800/-, but in affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Director of Ops, it is specifically admitted in Para No.2 that complainant paid amount of Rs.6,87,800/- by way of earnest amount. Endorsements of receipts of different amounts during period from 17.04.2011 to 22.06.2012 made on agreement Ex.C-1 itself establishes that complainant has paid Rs.6,87,800/- in all and as such complainant able to establish that she has deposited Rs.6,87,800/- with OPs in consideration of rendering of services by OPs of handing over possession of one BHK flat, total worth of which is Rs.12,52,000/-. Perusal of Ex.C-2 letter received by OP from Chief Administrator GMADA shows that license for setting up residential colony namely Sunny Basant at village Baliali, Sector 117 & 74-A of SAS Nagar was granted subject to certain conditions through this letter dated 19.05.2014. So certainly submission advanced by counsel for complainant has force that hefty amount of Rs.6,87,800/- was accepted by OPs from complainant at the time when requisite sanctions for raising of construction of flat in question were not obtained by OPs from competent authorities. Acceptance of this amount without capacity of raising construction itself is unfair trade practice and as such certainly complainant entitled for refund of entire paid 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 and Sections 6 and 12 of PAPRA Act read with Rule 17 framed thereunder. 

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 the requisite declaration for showing her 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.

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 her 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.6,87,800/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement.

10.           Complainant certainly is consumer of OPs within meaning of Section 2 (1) (d) of CPA because she 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.6,87,800/- 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 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 her unless and until possession of plot handed over to her. 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.            Possession of flat has not been handed over till date and OPs not shown to be in a position to handover possession till date and as such certainly complainant stood dragged in unnecessary litigation resulting in harassment, due to which she is entitled for compensation and litigation expenses also, but of reasonable amount.

15.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.6,87,800/- (Rs. Six Lakhs Eighty Seven Thousand Eight 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 amount 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

December 21, 2018.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member