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

Consumer Complaint No.499 of 2017

                                                Date of institution:  14.07.2017                                             Date of decision   :  15.01.2019

Ms. Vijay Mahajan wife of Mr. Kewal Krishan Mahajan and Mr. Kunal Mahajan son of Mr. Kewal Krishan Mahajan, both residents of House No.506, Sector 4, Panchkula.

…….Complainants

Versus

M/s. Bajwa Developers Limited, through its Managing Director, Shri Jarnail Singh Bajwa, Office at Sunny Enclave, 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 Abhishek Bhateja, counsel for complainant.

                Shri Amit  Sharma, counsel for OPs.

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

Order

               OP floated a scheme for developing housing project in Sector 74-A, Mohali by the name and style of Sunny Apartments and on allurements given by representative of OP, complainants booked one BHK BR No.1860 at Sunny Apartment, F-21, in Sector 74-A, Mohali. That flat was having covered area of 450 sq. ft. and the price consideration thereof was Rs.12,00,000/-. Complainants paid Rs.10,000/- vide receipt dated 23.06.2012 towards transfer of the plot  in their name. Complainants purchased the flat by paying Rs.3.00 lakhs on 29.03.2012 and booking stamp BY 452/41 was issued by OP. Thereafter, another amount of Rs.1,80,000/- was paid by the complainant to the OP on 01.08.2012. Thus, total amount of Rs.4.90 lakhs in this way has been deposited and endorsements of acceptance of these amounts even made on the buyers agreement dated 23.06.2012 by OP. Remaining amount was to be paid to OP by 01.12.2013 in 5 installments of Rs.1,80,000/- each. Assurance was given for delivery of possession by 01.12.2013. Complainants after signing buyers agreement, time and again made calls to the office of OP for asking if approvals of the project have been obtained, but information in that respect never supplied to complainants. Number of calls given to office of OP even did not entail any result. Rest of the installments not paid because no construction or development carried on the spot and moreover OP never raised demand of balance payment. Complainants claim to be ready and willing to make payment provided possession of the flat handed over to them. Assurance was given for building the project in 16/18 months i.e. by 01.12.2013, but no progress of the project achieved till date. Rather infrastructure development even has not taken place and as such complainants had to issue legal notice through registered post before filing this complaint. Violation of provisions of PAPRA Act, 1995 committed by OPs and as such by relying on provisions of Sections 3, 4 and 6 of PAPRA Act, this complaint filed for seeking refund of the paid amount of Rs.4.80 lakhs with interest @ 18% per annum. Compensation for mental harassment and agony of Rs.5.00 lakhs and litigation expenses of Rs.25,000/- more claimed.

2.             In reply filed by OP, it is pleaded inter alia  as if complaint has been filed just for seeking refund on the basis of agreement of sale dated 23.06.2012, despite the fact that complaint is barred by limitation in view of Section 27 of Indian Limitation Act as well as Section 24-A of the Consumer Protection Act. Agreement was arrived at on 23.06.2012 and last payment made on 01.08.2012, but this complaint filed on 14.07.2017 i.e. after lapse of more than 4 years. Flat meant for economically weaker sections of the society was got booked by complainants by concealing their identity of being affluent member of the society. OP was kept in dark and as such its consent obtained by fraudulent means for entering into agreement of sale dated 23.06.2012. Construction and possession of the flat was limited to payment plan and as complainants failed to deposit even single installment after initial advance, and as such it is claimed that as per terms of the agreement, earnest amount liable to be forfeited as per Clause-3 of the agreement. Besides complainants themselves committed breach of terms and conditions contained in Clause-7 of the agreement providing that purchaser will be bound to abide by EWS norms prescribed by Punjab Govt. It is claimed that there is no deficiency in service on part of OP and nor it adopted any unfair trade practice. It is claimed that complainants themselves failed to provide documents proving their eligibility for allotment of EWS category flat and as such a novel idea adopted by complainants for filing this complaint for recovery of amount for harassing OP. Other averments of the complaint denied.

3.             Complainants to prove their case tendered in evidence affidavit of Kunal Mahajan Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-16 and then closed evidence.  On the other hand counsel for OP tendered in evidence affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Director and thereafter closed evidence.

4.             Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.

5.             It is not disputed that agreement of sale Ex.C-2 was arrived at between the parties, as per which one BHK No.1860 having area of 450 sq. ft. was to be sold by OP to complainants for total sale consideration of Rs.12,00,000/- (rounded off figure). Ex.C-1 is receipt of Rs.10,000/- issued by OP to  complainants towards transfer of the plot in their names. On the agreement itself, endorsements under signatures and stamp of Bajwa Developers are incorporated regarding receipt of total amount of Rs.3.00 lakhs  and Rs.1,80,000/- and as such dispute does not remain regarding paid amount of Rs.4.80 lakhs by complainants to OP. However, construction activity has not been carried on the spot is a fact borne from produced photographs Ex.C-3 to Ex.C-12 and as such certainly submission advanced by counsel for complainants has force that OP despite assurance of handing over of possession of the flat are not in a position to hand over the same till date. Enclosure with letter Ex.C-15 is there on the record to establish as if actually OP has obtained permission for development of 25 acres area as per Govt. policy for construction of EWS Group Housing Scheme in Sector 74-A, SAS Nagar. So it is not a case in which requisite approvals by OP from concerned authorities have not been obtained. Even if such approvals have been obtained, but despite that construction work is not completed despite the fact that complainants made last payment on 01.08.2012 and as such certainly fault lay with OP in not completing the project. Being so, complainants 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. 

6.             OP claims through written reply as well as affidavit Ex.OP-1/1 of Baldev Singh, Director of OP that agreement in question be treated as void and as such virtually the agreement in question sought to be rescinded by OP. In view of that virtually OP is seeking declaration of agreement as voidable. Besides after taking us through Clause-7 of agreement Ex.C-2, it is sought to be contended that as purchaser (complainants) 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-2, it is made out that flat in question allotted to complainants was subject to fulfillment of terms and conditions requisite for allotment of flat to EWS category. Even if complainants failed to submit the requisite declaration for showing their entitlement to the EWS category flat in question, despite that the agreement at the most can be declared as voidable at the option of OP, if it wants to treat it as void.

7.             It is vehemently contended by counsel for OP that in fact flat sought by complainants is of EWS category and as such for getting benefit of EWS Housing Scheme, certificate of annual income of complainants, 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 complainants may not have fulfilled the requirement to avail benefit of EWS housing scheme, despite that OP itself 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 complainants, requisite for getting benefit of EWS housing scheme, even then it cannot retain the received amount because in doing so it virtually is seeking unjust enrichment. OPs itself is also at fault in not starting the construction.

8.             Even if assuming for arguments sake that consent of OP in entering into agreement Ex.C-2 was obtained by complainants by misrepresentation of their being belonging to economically weaker section category, despite that entitlement of complainants 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.4,90,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement.

9.            Complainants certainly are consumer of OPs within meaning of Section 2 (1) (d) of CPA because they 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 complainants that OP has not developed the project and as such fault lays with OP in not fulfilling promise of delivering the possession to complainants. For that fault of OP, complainants cannot be made to suffer and as such on equitable considerations also, complainants entitled for refund of paid amount of Rs.4,80,000/- with interest.

10.            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 complainants, as referred above.

11.            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 complainants till refusal, certainly complaint is not barred by limitation and submission of counsel for OPs to the contrary has no force.

12.            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.

13.            As a sequel of above discussion, complaint allowed by directing OP to refund the demanded amount of Rs.4,80,000/-  (Rs. Four Lakhs Eighty Thousand 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. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

January 15, 2019

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member