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

Consumer Complaint No.659 of 2017

                                                Date of institution:  28.08.2017                                             Date of decision   :  14.12.2018

Sukhjinder Singh son of Shri Jagjit Singh, resident of village Jujhar Nagar, P.O. Behlolpur, Tehsil and District SAS Nagar (Punjab).

…….Complainant

Versus

1.     M/s.  Bajwa Developers Ltd. through its Managing Director J.S. Bajwa, Regd. Office, Sunny Enclave, Desu Majra, Tehsil Kharar,  Mohali (Punjab).

2.     Shri J.S. Bajwa, Managing Director, M/s.  Bajwa Developers Ltd., Regd. Office, Sunny Enclave, Desu Majra, Tehsil Kharar, Mohali (Punjab).

                                                            ……..Opposite Parties

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 Gaurav Gupta, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

               After going through the advertisement published in various newspapers by OPs, complainant was allured to get residential flat booked with OPs. Agreement dated 24.05.2011 was executed between parties as per which allotment of IBHK BR No.(529) 1429 regarding 450 sq. ft. of area of apartment situate at F 21, Mohali, Sector 74-A, 117 took place. Complainant paid Rs.3,13,000/- as booking amount out of total sale consideration amount of Rs.12,52,000/-. Remaining payment was to be made in installments, first of which was to commence w.e.f. 15.10.2011. Possession of flat was to be handed over till 24.11.2012, but OPs have not obtained approvals for start of construction till that date. Complainant claims that he is ready to pay balance installments, but OPs not able to get approvals from GMADA and that is why balance payment not made, but time for payment stood extended. Earlier complaint for refund of amount was filed on 16.08.2013 in this Forum, but during pendency of that complaint, assurance was given by OPs for delivery of possession of flat very soon and that is why complaint was withdrawn. Date for delivery of possession was mentioned as 30.04.2014, but OPs remained unable to deliver possession by the extended time of 01.12.2015 even. OPs adopted unfair trade practice by misrepresenting as if they have obtained approvals from concerned authorities and that is why this complaint filed for seeking refund of the deposited amount of Rs.3,13,000/- with interest @ 12% per annum from the date of payment till actual realisation alongwith compensation for mental harassment and cost of litigation .

2.             OPs in the submitted reply admitted about execution of agreement dated 24.05.2011 and receipt of amount of Rs.3,13,000/- out of total price of Rs.12,52,000/-. Possession of the flat was to be handed over subject to submission of income tax certificate by complainant from competent authority for showing that his income from all sources does not exceed Rs.3.00 lakhs per annum. Complainant at the time of entering into agreement of sale was disclosed that he has chosen the flat to be allotted to EWS category of the society only. Condition No.7 in the agreement in that respect was incorporated. Complainant neither has submitted the income tax certificate and nor the domicile certificate, despite issue of letter by OPs to him. This Forum has no jurisdiction because complainant himself has failed to abide by the conditions laid down in Clause-7 of the agreement. No relationship of consumer and service provider exists between parties and complainant is not consumer and as such it is claimed that this complaint is not maintainable. Clauses 2.1 to 2.4 of Notification No. DTP(LG)-2016/2361 issued by Govt. of Punjab, Department of Local Govt. are reproduced in the written statement for claiming that complainant does not fulfill the criteria for allotment of flat in question. Earlier complaint was withdrawn by complainant at his own on 16.08.2013 and as such cause of action does not accrue to him for filing the present complaint in 2017, more so when permission for filing fresh complaint was not sought and the present complaint is not filed within two years of period stipulated by Section 24-A of the Consumer Protection Act.  Each and every other averment 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-3 and Mark-A and B and then 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.             From pleadings of the parties and the submitted affidavits, there remains no dispute that one BHK flat was got booked by complainant with OPs by paying Rs.3,13,000/-. Even OPs in the written reply and submitted affidavit Ex.OP-1/1 have admitted having received Rs.3,13,000/- from complainant. Admission binds a party and as such complainant able to establish as if he deposited Rs.3,13,000/- with OPs.

6.             After going through agreement Ex.C-1, it is made out that complainant was to pay entire sale consideration amount in 5 installments in addition to payment of earnest amount of Rs.3.13 lakhs. However, complainant has paid Rs.3,13,000/- only and as such it is vehemently contended by counsel for OPs that fault lay with complainant in not sticking to payment plan schedule. Even if such fault may be there on part of complainant, despite that OPs have not obtained requisite sanctions/approvals for start of the project in question from various departments. Plea taken in the complaint and affidavit Ex.CW-1/1 of the complainant in this respect is not specifically denied through affidavit Ex.OP-1/1 and as such it is obvious that fault lay with OPs in not getting approvals from concerned authorities.
Being so, complainant 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. 

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 his 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 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.3,13,000/- 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 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.3,13,000/- 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 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.

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.            Even if an earlier complaint filed by complainant has been withdrawn without seeking permission from the Forum for filing fresh complaint, despite that present complaint is maintainable because it is pleaded and proved case of complainant through affidavit Ex.CW-1/1 that earlier complaint was withdrawn on assurance given by OPs as if possession will be handed over in 2014. Copy of earlier complaint No.338 of 22.08.2013 is produced on record as Mark-A. Perusal of Para No.5 of the complaint reveals that at that time complainant took specific plea as if approvals for raising construction have not been obtained by OPs till date and same plea is now taken. Through statement Mark-B suffered by complainant, he evinced interest in having possession of the flat. In view of that recorded statement Mark-B, earlier complaint stood dismissed as withdrawn vide orders dated 05.12.2013, photocopy of which is produced on record. One Rajinder Paul sought information under Right to Information Act from Director Local Govt. regarding status of construction and of approvals got by OPs. Perusal of item No.2 of copies of resolutions annexed with Ex.C-2, shows that OPs withdrew application for approval of the site in question because of recession in market. These in fact are copies of resolutions dated 05.03.2015 passed by Administrator of Municipal Council, Kharar and as such it is obvious that OPs themselves have withdrawn application for seeking permission for raising of construction. Therefore, this documentary evidence available on record enough to establish alongwith contents of Ex.C-3 as if now OPs have abandoned the idea of raising construction. If OPs themselves have sought withdrawal of application for permission to raise construction from the Town Planning Department, then certainly question of handing over of possession of constructed flat by OPs to complainant does not arise. Relying on this decision of OPs, present complaint is filed thereafter on 28.08.2017 and as such certainly the complaint is not barred by limitation, more so when knowledge by complainant and others got regarding withdrawal of application for permission by Ops after 20.04.2016 when application Ex.C-2 was filed. So certainly complaint is not barred by limitation and nor by rule of estoppel because OPs themselves committed persistent deficiencies in not raising construction and seeking requisite approvals.

15.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.3,13,000/- (Rs. Three Lakhs Thirteen Thousand only) with interest @ 12% per annum from the dates of deposits  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. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

December 14, 2018.

                                                                (G.K. Dhir)

                                                                President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member