DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.275 of 2017
Date of institution: 12.04.2017 Date of decision : 01.07.2019
Sanjay Gupta son of Shri V.P. Gupta aged 43 years, resident of House No.2854, Sector 22-C, Chandigarh.
…….Complainant
Versus
1. The Managing Director, Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali presently having the office at Sunny Business Centre, Sunny Enclave, Sector 125, Near KFC, 5th Floor, Kharar, Desu Majra.
2. The Manager (Sales), Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, 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: Ms. Ajabjot Kaur, proxy counsel for complainant.
Shri Amit Sharma, counsel for OPs.
Order by :- Shri G.K. Dhir, President.
Order
A flat of 2 BHK BR No.(680) 2380 having area of 900 sq. ft. approximately was booked by complainant on 21.04.2011 by paying Rs.6,50,000/- to OPs. That flat was not sufficient for adjusting all the members of family of complainant because complainant has two grown up children, his old age parents, sister and her son, all of whom are residing with complainant. Even brother of complainant alongwith his son and wife are residing with complainant. Old persons require their independent rooms and as such considering those aspects, complainant intended to buy another flat near to his flat, so that he may take care of large family. Umesh Sharma, Property Dealer came in contact with complainant and he got booked one BHK BR No.(342)1342 having area of 450 sq. ft. with OPs at cost of Rs.12.00 lakhs approximately. Complainant paid Rs.1.00 lakh on 14.04.2011, Rs.1,75,000/- on 23.04.2011, Rs.25,000/- on 24.04.2011 and another additional amount of Rs.25,000/-. In this way an amount of Rs.3,25,000/- in all paid by complainant to to purchaser of this flat. Agreement dated 26.04.2011 was arrived at. Final payment was to be made on 24.10.2012. OPs have duped complainant of his hard earned money of Rs.3,25,000/- because though date for delivery of possession in the end of 2012 was given, but permissions from GMADA authorities obtained only on 19.05.2014 and that too subject to getting of approvals from other statutory bodies. OPs were not having permissions from Fire Safety Department, Sanitary Department, Electricity Department and Water Works Department and as such they could not have carried out construction or development works, but they accepted amounts for defrauding hapless customers. Complainant intended to shift whole of family in one go at the new place, for which he got two flats purchased. However, all hopes of complainant licked in the dust because OPs adopted unfair and restricted trade practice because they refused to accept remaining amount from complainant knowing fully well that they are not having permissions from statutory authorities. Though assurances for providing world class infrastructure were made, but everything remained in air because OPs failed to put even a single brick on the site after lapse of more than 5 years from the date of execution of agreement. As conduct of OPs caused mental harassment and agony to complainant and that is why this complaint filed for seeking refund of deposited amount of Rs.3,25,000/- with interest @ 15% per annum alongwith compensation for mental agony and harassment etc. Complainant by paying amount to earlier purchaser has stepped into his shoes.
2. In reply filed by OPs, it is claimed as if relationship of consumer and service provider do not exist; complaint is barred by limitation having been filed on 12.04.2017 i.e. after more than 5 years beyond period of limitation. Agreement was arrived at on 24.04.2011 and last payment made by Umesh Sharma on 24.05.2011. Complainant got booked the flat in question meant for economically weaker sections of the society by concealing his identity of being affluent member of the society by keeping OPs in dark. So consent of OPs for entering into agreement was obtained in fraudulent manner. Construction and possession of the flat was limited to payment plan. Complainant just paid earnest amount and nothing more than that, so he is not entitled for any relief. In view of Section 24-A of the Consumer Protection Act, the complaint could have been filed within two years from agreement i.e. by 23.05.2013 only. As per Clause-3 of agreement, in case any installment is not paid within period of 15 days from stipulated date, then earnest amount to stand forfeited. Clause-7 of agreement provides that purchaser will abide by economically weaker section norms by way of furnishing documents in support of his claim to the effect that he belongs to economically weaker sections of society as prescribed by Punjab Govt. As consent of OPs was obtained by fraud, so agreement is void abinito and is not enforceable. Complainant failed to adhere to payment schedule because he has not paid the balance amount. Rather it is claimed that Umesh Sharma planned a novel idea for selling the flat to complainant, when he failed to provide requisite documents for showing that he belongs to economically weaker section category by submitting requisite documents. Other averments of the complaint denied.
3. Complainant in order to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 and Ex.C-2 and then his counsel 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. Agreement Ex.C-1 was arrived at between OPs with Umesh Sharma for sale/purchase of one BHK BR No.(342) 1342 for total sale consideration of Rs.12.00 lakhs. Endorsement in the hands of OPs exist regarding receipt of Rs.3,25,000/- and receipt in that respect has been issued by Umesh Sharma shows having received Rs.3,25,000/- from Sanjay Gupta, the present complainant. So it is obvious that complainant came in picture through Umesh Sharma at the time when agreement Ex.C-1 dated 26.04.2011 was arrived at by complainant with Umesh Sharma. Certainly sanctions from GMADA authorities were not obtained because perusal of letter Ex.C-2 shows as if OPs was granted sanction by GMADA authorities under PAPRA Act to establish residential colony in question on 19.05.2014 but subject to terms and conditions incorporated therein. Being so, OPs committed violation of provisions of Sections 3 and 5 of PAPRA Act, while accepting amount of Rs.3,25,000/- from Umesh Sharma, the predecessor in interest of complainant. However, contents of Para-2 of affidavit Ex.OP-1/1 of Baldev Singh Bajwa shows as if agreement dated 24.04.2011 was reduced into writing whereby complainant agreed to purchase 2 BHK flat measuring 450 sq. ft. for consideration of Rs.12.00 lakhs. In Para 2 of this affidavit itself it is mentioned that complainant paid a sum of Rs.3,25,000/- as part of sale consideration . These admissions suffered by representative of OPs establishes that virtually OPs even are acknowledging as if complainant had paid Rs.3,25,000/- to them in consideration of purchase of flat in question from OPs. Admission binds a party and as such no other proof required. In view of this it has to be held that complainant able to establish as if he paid Rs.3,25,000/- to OPs. However, Ops were not having requisite sanctions from GMADA or other authorities prior to entering into agreement Ex.C-1 and as such in view of violation of provisions of Sections 3 and 5 of PAPRA Act committed by OPs, they are liable to refund amount deposited by complainant with interest @ 12% per annum from the dates of deposit till payment in view of Section 12 of PAPRA Act read with Regulation 17 framed thereunder. Reference for this purpose can be placed on 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. Certainly sale consideration amount was payable in 6 installments, but out of that one installment at the most virtually of earnest amount alone can be said to be paid by complainant to OPs because Rs.3,25,000/- only acknowledged to be deposited by complainant with OPs as referred above. In view of non payment of balance sale consideration amount as per stipulations contained in Clause-2 of agreement Ex.C-1, it is vehemently contended by counsel for OPs that the amount in deposit liable to be forfeited in view of Clause-3 of agreement Ex.C-1. However, that submission of counsel for OPs has no force because in case enforcement of Clause-3 of agreement ordered, then it will amount to give undue benefit to OPs over complainant, more so when OPs themselves committed violation of Sections 3 and 5 of PAPRA Act by not obtaining requisite sanctions/approvals from GMADA or other authorities at the time of acceptance of amount of Rs.3,25,000/-. Besides OPs have not started construction and nor carried out any development activity and as such entitlement of complainant for compensation for mental agony and harassment is also there because fault exclusively lay with OPs resulting in non deposit of balance installments by complainant.
8. 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.
9. 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.
10. Even if assuming for arguments sake that consent of OPs 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 OPs not entitled to retain amount of Rs.3,25,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in agreement Ex.C-1.
11. Complainant certainly is consumer of OPs within meaning of Section 2 (1) (d) of CPA because he 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.3,25,000/- with interest.
12. Benefit from ratio of case titled as State of Gujarat Vs. Rajesh Kumar Chiman Lal Barot, AIR 1996 SC 2664 cannot be availed by OPs because of existence of relationship of consumer and service provider between parties in the case in hand. In view of existence of that relationship, this Forum has jurisdiction. Ratio of cited case applicable when the court concerned has no jurisdiction. However, this is not the position in this case. Even benefit from ratio of case titled as Maheswar Patra Vs. Block Development Officer, Panchayat Samiti, Gosani, III (2011) CPJ 480(NC) cannot be got by counsel for OPs because after going through reported case, it is made out that State Govt. refused to supply monthly ration and essential commodities except kerosene in the reported case. That monthly ration of essential commodities to be supplied while discharging executive functions of the Govt. and not on account of existence of contractual obligations consisting of the element of passage of consideration in lieu of goods supplied or services to be rendered. However, in the case before us part of the price amount accepted by OPs from complainant in consideration of allotting one BHK flat and as such facts of the reported case are quite distinguishable than those of the case before us.
13. 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 through his predecessor, as referred above.
14. 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.
15. 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.
16. As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.3,25,000/- (Rs. Three Lakhs Twenty Five 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, failing which the complainant will be entitled to interest @ 7% per annum on the amounts 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
July 01, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
