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

Consumer Complaint No.291 of 2016

                                             Date of institution:  18.05.2016

                                             Date of decision   :  09.02.2018

Kishori Lal Goyal son of Late Dila Ram Goyal, resident of House No.218-A, Sewak Colony, Patiala.

…….Complainant

Versus

Bajwa Developers Limited, Desu Majra, Sector 125, Sunny Enclave, Tehsil Kharar, District Mohali through its Managing Director Shri Jarnail Singh Bajwa.

……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member.

                Mrs. Natasha Chopra, Member.

Present:     Shri Ravi K. Mattoo, cl. for the complainant.

                Shri Sudesh Sahi, counsel for the OP.

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

Order

               Complainant, a senior citizen after believing the advertisements made by OP regarding its housing project through various news papers, agreed for purchase of one BHK BR No.92; 1092 measuring 450 sq. feet for total sale consideration of Rs.12,00,150/-. Assurance was given to complainant as if he is to pay the amount in six installments.  Agreement to sell dated 28.04.2011 was executed and at that time, Rs.3.00 lakhs were paid. 5 installments of Rs.1,80,000/- were to be paid as and when the progress of the project starts. The flat was purchased in Sunny Apartment falling in F21, Sector 74-A/117. Officials of OP assured complainant that they will inform him for payment of installments once their part of getting approvals is performed. Additional amount of Rs.50,000/- was charged on 28.04.2011 from complainant and Rs.75,000/- more were paid by complainant on 17.11.2011. As and when complainant enquired about the status of project from the OP, it started extending the dates of installments to shield their delay. Dates were extended 17 times till 10.06.2015. Complainant claims that he is ready and willing to fulfill his part of the agreement by paying remaining price amount. After expiry of last extended date, the OP did not respond for more than 10 months. On failure of OP to provide the flat during the period from 2011 to 2015, complainant called upon it to refund the amount alongwith interest of four years, but again the date was extended to 04.05.2015 and then to 10.06.2015. OP is wrongfully retaining the complainant’s hard earned money for the last 5 years. As such in view of deficiency in service and in view of endless harassment of complainant, this complaint filed for seeking direction to OP to refund the received amount of Rs.4,25,000/- with interest @ 12% per annum. Compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.15,000/- more claimed.

2.             In reply submitted by OP, it is claimed that this Forum has no jurisdiction to try the present complaint because transaction between complainant and OP is purely a transaction based on sale agreement of a plot for total sale consideration of Rs.12,00,000/- and the complainant himself failed to deposit further installments as per agreement. Complainant booked the plot with OP with full knowledge that approvals are yet to be got by OP with extra efforts.  Complainant requested for extension of time for payment and that is why the dates were extended number of times. In view of default committed by complainant in paying installments, the amount deposited by him is liable to be forfeited as per clauses of the agreement. Besides, complainant estopped by his act and conduct from filing the complaint because agreement has become void due to non deposit of agreed installments within stipulated period by complainant. As per Clause-3 of the agreement, the amount liable to be forfeited in case purchaser failed to deposit the agreed amount within 15 days from due date. No cause of action alleged to have accrued in favour of complainant. No relationship of consumer - service provider exists between complainant and OP because complainant is not a consumer within the meaning of Consumer Protection Act. OP got license to develop colony from GMADA, but complainant got the plot for speculative purposes so as to sell the same at premium. However, after finding that the seller is not fetching good price in open market, the complainant has filed this complaint for seeking refund of the deposited amount. Present complaint alleged to be filed for abusing process of law and as such prayer made for dismissing the same by treating the same as false, vexatious and frivolous. Execution of agreement dated 28.04.2011 is admitted. Specific dates of payment of installments were given to the complainant, but despite that installments not deposited. As per agreement, OP was to provide possession after development but subject to payment of all installments by complainant. Parties are bound by terms and conditions of agreement. Now complainant wants to cancel the agreement for saving the paid amount knowing fully well that there is recession in the market now-a-days.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document Ex.C-1 and thereafter his counsel closed evidence. On the other hand, counsel for OP tendered in evidence affidavit Ex.OP-1/1 of Shri J.S. Bajwa and thereafter closed evidence.

4.             Written arguments submitted by both the counsel for parties. Oral arguments heard and records gone through.

5.             Execution of agreement dated 28.04.2011 placed on record as Ex.C-1 is an admitted fact. Schedule of payment of installments specified in this agreement with dates of payment of installments. However, amount of Rs.4,25,000/- alone paid and receipts or statements of acknowledgement in this respect under signature and stamp of Bajwa Developers or with signature of Shri J.S. Bajwa are there on the worked out balance sheet. Rs.1,00,000/- received by OP on 20.04.2011, Rs.2,00,000/- on 28.04.2011, Rs.50,000/- on 28.04.2011 again, but Rs.75,000/- on 17.10.2011.  Dispute regarding receipt of this amount of Rs.4,25,000/- is not raised in written arguments,  written reply or in the course of oral arguments even. So certainly, complainant able to establish that he paid Rs.4,25,000/- to OP.

6.             Case of OP is that dates for execution of sale deed stood extended many times is fully believable because endorsements of dates of extension specifically made on  Ex.C-1 itself. These dates extended till 15.10.2012; 15.07.2014; 10.06.2012; 15.12.2012 and 30.12.2014 as per handwritten endorsements. Date even was extended uptill 10.06.2015 as per endorsement date 04.05.2015. In view of extension of these dates repeatedly, certainly sale consideration amount not paid by complainant. As complainant was a party to these dates of extension uptill 10.06.2015 and as such certainly he could not have sought refund of the paid amount of Rs.4,25,000/- till 10.06.2015. It was only after the last extended date of 10.06.2015 that complainant could have sought refund of the paid amount and as such complainant entitled to interest on the paid amount w.e.f. 10.06.2015 only.

7.             Certainly condition No.3 in Ex.C-1 is there to the effect that in case the installments not paid within 15 days of the fixed date, then the paid earnest amount will stand forfeited. Even if this Clause No.3 in agreement Ex.C-1 may be there, despite that extension of dates for execution and registration of sale deed or of handing over of possession took place untill 10.06.2015 with mutual consent of both parties and as such virtually the parties agreed for extending the time for performance of their part till 10.06.2015. So forfeiture clause cannot be given effect to, particularly when both the parties mutually agreed for extension of dates lastly upto 10.06.2015.

8.             One BHK flat was contracted to be purchased by complainant on payment of Rs.12,00,150/- and as such it is vehemently contended by counsel for OP that in fact the flat sought by complainant was of EWS category. For getting benefit of EWS housing scheme, certificate of annual income of complainant, being less than Rs.3.00 lakhs from all sources was required as per Clause-1 (viii) of scheme evolved by Department of Housing & Urban Development, Govt. of Punjab. Copy of that notification dated 21.09.2015 has been produced during course of arguments.

9.             After going through Clause-7 of agreement Ex.C-1, it is made out that the purchaser (complainant) will fulfill all the terms and conditions or of bye laws providing for allotment of EWS category flat. So in view of this Clause-7 of Ex.C-1, submission of counsel for OP has force that the flat in question allotted to complainant was of EWS category. It is OP who is seeking rescission of the contract due to non fulfillment of Clause-7 of agreement Ex.C-1 and as such virtually, contract is sought to be declared as voidable or void by OP. If the contract is void or voidable, then the benefit got by OP cannot be retained by it legally.

10.            Section 65 of Indian Contract Act, 1872 specifically provides that when an agreement is discovered to be void, or the contract becomes void, then any person who has received any advantage under such agreement or contract is bound to restore it, or to make compensation for it to the person, from whom he received it. Likewise, Section 64 of Indian Contract Act provides that when a person at whose option a contract is voidable rescinds it, the other party there to need not perform any promise therein contained, in which he is the promisor Further as per second part of Section 64, the party rescinding a voidable contract shall, if he had received any benefit  thereunder from other party to such contract, will restore such benefit, so far as may be, to the person from whom it was received.  In view of these provisions contained in Sections 64 and 65 of Indian Contract Act, it is obvious that if the contract is declared to be void due to non compliance of the formalities requisite by rules and regulations for entitlement of complainant to EWS category flat, then the OP cannot retain the benefit received by it under contract Ex.C-1. However, the OP bound to return the received amount of Rs.4,25,000/- with compensation of interest w.e.f. 10.06.2015 onwards till  payment because date of this agreement stood extended from time to time by both parties under impression as if the agreement is legally valid and is enforceable. However, in case the complainant wants to get this agreement declared as voidable at his option, even then he is bound to return back received benefit of Rs.4,25,000/-.

11.           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 its promise of delivering the possession to complainant. For that fault of OP, the complainant cannot be made to suffer and as such on equitable consideration also, the complainant entitled for refund of paid amount of Rs.4,25,000/- with interest from 10.06.2015 and not before that, as discussed above.

12.            In cases titled as  Dream Land Promoters & Consultants Vs. Pramod Kumar, 2013 (1) CPC 357 (SC); Emaar MGF Land Ltd. and another Vs. Karnail Singh, 2014 (3) CPC 49 (NC) as well as in case of  Rajubhai Tank, Director of Odhav Hari Developers Pvt. Ltd. & Ors. Vs. Bindraben Bharatkumar Mavani (Minor) through her Natual Guardian, 2014(1) CPC 624(NC) and in case of  Pushpak Infrastructure Pvt. Ltd. Vs. Santanu Mukherjee 2014(3) CPC 336(NC) and  Ram Niwas Garg Vs. Nagar Nigam, Kanpur & Anr. 2015(2) CLT 96 (NC), it has been held that if possession cannot be handed over to the allottee for any reason, then the allottee entitled to refund of paid amount with interest. However, in case he has paid the full sale consideration amount, then direction to seller to execute the sale deed even can be issued. In the case before us, the full sale consideration amount has not been paid, but part of sale consideration alone paid and as OP itself has taken plea that complainant not complied with requisite formalities of getting him declared as entitled to flat of EWS category and as such virtually OP is seeking declaration as if the contract is voidable. Even in case of voidable contract, OP bound to refund back the received amount.  That refund in the facts and circumstances of the case must be ordered with interest @ 12% per annum from the last extended date of 10.06.2015 through Ex.C-1, as discussed in detail above.  OP cannot be permitted to retain the money paid by complainant and even the flat/plot agreed to be sold by it because in case it is so ordered, then it will amount to unjust enrichment of OP at the cost of complainant, despite the fact that fault lays with OP also in not getting the formalities of EWS category allotment complied with from complainant at earliest. However, OP kept on extending the dates in concurrence with complainant and as such entitlement of complainant to interest @ 12% per annum w.e.f. 10.06.2015 will be there. Complainant suffered mental agony and harassment at the hands of OP due to refuting of his claim of refund resulting in his dragging in this litigation and as such certainly complainant entitled to compensation for mental agony and harassment as well as litigation expenses.

13.            This Forum certainly has jurisdiction because complainant is consumer of OP and the property sought to be purchased is within the territorial jurisdiction of this Forum. Complaint is not barred by limitation, more so when the dates for execution and registration of sale deed or for delivery of possession stood extended by mutual consent upto 10.06.2015. So cause of action virtually accrued to complainant after 10.06.2015 and as such complaint being filed on 18.05.2016 is well within limitation. Provisions of Section 27 of Indian Limitation Act are not applicable because of extension of time for enforcement of agreement by mutual consent of parties upto 10.06.2015. Complaint is filed within two years of accrual of cause of action and as such same is within limitation. Flat is always purchased for occupancy and as such commercial purpose of transaction projected just for frustrating the claim of complainant. Through Para No.9 of written arguments submitted by OP, it is sought to be contended as if agreement is void, but consequence of void agreement will not permit OP to retain the received amount of Rs.4,25,000/- as discussed in detail above. Complaint cannot be termed groundless at all because of above detailed discussion.

14.            As a sequel of above discussion, the complaint allowed with direction to OP to refund the received amount of Rs.4,25,000/- with interest @ 12% per annum with effect from 10.06.2015 till payment. Compensation for mental harassment and agony of Rs.20,000/- and litigation expenses of Rs.5,000/-  more allowed in favour of complainant and against the OP. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. 

                Since there is shortage of postal stamps in this Forum, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it is the responsibility of the learned counsel for the parties to inform them accordingly.  This direction issued by following the principle laid down by Hon’ble  Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.956 of 2017 titled as Partap Rai Sharma Vs. Greater Mohali Area Development Authority (GMADA), decided on 25.01.2018. File be indexed and consigned to record room.

Announced

February 09, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                            (Amrinder Singh Sidhu)                                                                Member

(Mrs. Natasha Chopra)

Member