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

Consumer Complaint No.362 of 2017

                                                Date of institution:  23.05.2017                                         Date of decision   :  11.10.2018

Sumit Setia son of Shri Hari Chand Setia, resident of H.M.332, Phase-9, Mohali.

…….Complainant

Versus

1.     Bajwa Developers Ltd. having its registered office at SCO 17-18, Sunny Enclave, Sector 125, Desumajra, Kharar, District SAS Nagar Mohali -140301 through its Managing Director Jarnail Singh Bajwa.

2.     Shri Jarnail Singh Bajwa, Managing Director son of Shri Bishan Singh,  SCO 17-18, Sunny Enclave, Desu Majra, Kharar, District SAS Nagar Mohali -140301.

                                                            ……..Opposite Parties                                                  

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Ms. Rameet Bakshi, counsel for complainant.

                Shri R.P. Sharma, counsel for OPs.

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

Order

               Complainant, on assurance of OPs of providing basic amenities in the residential project named as New Friends Enclave (housing group of PGI and P.U. Employees) in Sunny Enclave, Sector 124, Mohali, agreed to purchase 125 sq. yards  size plot @ Rs.15,500/- per sq. yard. Total value of the plot was Rs.19,37,500/-. Amount of Rs.50,000/- was deposited in lieu of booking amount vide cheque regarding which receipt dated 02.03.2012 was issued by OPs. Payment schedule was provided by OPs, as per which remaining 75% of the total cost of the plot was to be paid in installments. 20% of the total cost was to be paid after receipt of approval of CLU by OPs. 25% of price was to be paid after approval of lay out plan, whereas 20% of the total cost more was to be paid after start of development of the project. Balance 10% (full and final) was to be paid at the time of possession or registration of sale deed. Complainant further paid Rs.4,34,375/- within 45 days from the date of registration through cheque  dated 12.04.2012, being 25% of the total price of plot. Agreement of sale of 125 sq. yards of plot for total sale price of Rs.19,37,500/- was arrived at between parties on 14.04.2012. Complainant claims that he after going through agreement was shocked to see that payment schedule was changed by OPs at their own. There is no mention of New Friends Enclave in the agreement but mention of Sector 124 alone was made therein. Complainant called upon OPs to return back cheque of amount of Rs.50,000/-. OPs assured that as Sector 124 was meant only for New Friends Enclave and as such possession of the plot will be handed over within reasonable time from the date of agreement. OPs warned complainant that in case he does not sign the agreement, then amount of Rs.4,84,375/- already paid by him would be forfeited and that is why complainant signed the agreement. Letter was received from OPs by complainant for calling upon complainant to deposit Rs.3,87,500/- more, being 20% of the total cost of the plot as the next installment. Complainant was assured by OPs as if necessary approvals from concerned authorities will be received soon and the development of the plot would commence soon. On assurance by OPs regarding early progress of the project, an amount of Rs.3,87,500/- was paid by complainant to OPs. It is claimed that despite these payments, OPs have not received approval of CLU for the project, but they put forth ingenuine demand by claiming that complainant not adhering to the payment plan. After 2-1/2 years, complainant received call from the office of OPs to the effect as if draw of lots will be held on 19.10.2014. In that draw of lots, complainant was allotted Plot No.272. Letter was received from OPs by complainant for calling upon complainant for making payment of next installment. Complainant with the hope of building his own house and getting possession of hit plot, paid Rs.2.00 lakhs to the OPs vide cheque dated 01.03.2015.  Allotment letter dated 20.12.2014 was issued in favour of complainant. Amounts deposited by complainant are reflected in the below mentioned tabular form:

                After few months, complainant came to know from other buyers of the plots in New Friends Enclave that OPs have not received approvals for the colony in question.   The complainant for enquiring into the matter visited site in June, 2015 for finding that no development work regarding basic amenities had been started. Rather he found as if land was lying vacant. Complainant found as if OPs have misrepresented him and as such he expressed his resentment with OPs. OPs asked complainant for signing a new agreement in lieu of old one by disclosing that plot number allotted to complainant would be incorporated therein. In July 2015, complainant visited OPs’ office for calling upon them to show the new agreement. OPs took the old agreement from complainant and changed sector number mentioned in it from 124 to 123 by overwriting. Reason for such change was asked, but same was not disclosed properly and as such by claiming that on account of misrepresentation, OPs adopted unfair trade practice and that is why this complaint for seeking refund of paid amount of Rs.10,71,875/- with interest @ 12% per annum from the dates of deposits till realisation. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.11,000/- more claimed.

2.             In reply filed by OPs, it is pleaded inter alia as if this Forum has no jurisdiction because transaction between parties  was purely based on agreement for sale of plot for total consideration of Rs.19,37,500/- excluding charges @ Rs.2,250/- per sq. yard. Total of the charges comes to Rs.2,81,250/- and as such it is claimed that this Forum has no pecuniary jurisdiction. In view of default committed by complainant in paying installments as per terms of agreement, deposited amount liable to be forfeited and as such it is claimed that earnest amount of Rs.3,87,500/- liable to be forfeited. Besides, complainant is alleged to be estopped by his own act and conduct from filing the complaint because he failed to pay installments in time resulting in rendering the agreement becoming void. Relationship of service provider alleged to be not existing between parties and moreover it is claimed that complaint has been filed for abusing process of law. Admittedly OPs did show complainant possible area in Sunny Enclave where plots to be developed and lay out plan to be got passed from competent authority. Complainant was never informed that loan facility would be made available by OPs. Sanctioning of loan is totally dependent on the individual CIBIL score and other income sources of the customer. Admittedly complainant booked residential plot measuring 125 sq. yards at total value of Rs.19,37,500/-. New Friends Enclave is not a separate project of OPs, but in fact the same is given the name to a chunk of land in Sectors 123 and 124, which was approved as per lay out plan. Installments to be paid after approvals from competent authorities, but complainant failed to adhere to payment schedule. Complainant entered into agreement after verifying all the terms written in the agreement without any force or undue influence, but with his free will. Complainant was allotted plot No.272 as per draw of lots, but due to revision of lay out plan of the area, plot was changed from Sector 124 to 123 in 2015. Complainant never objected to the same till filing of present complaint or getting of legal notice issued. As per Clause-7 of the agreement, OPs are authorised to change the plot, size and area. RTI information was got from GMADA regarding the fact as to whether any license to set up colony in the name of New Friends Enclave has been issued by GMADA or not, but in fact OPs have already got license to develop colonies. Moreover it is claimed that OPs have got the master plan of Sectors 123-124 approved from competent authority in which chunk of area was named as New Friends Enclave. No separate licensee to develop enclave was required because OPs had already got the lay out plan approved from competent authority. Other averments 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-14 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 of counsel for parties heard and records gone through.

5.             After going through complaint and receipt Ex.C-2, contents of agreements Ex.C-4 and Ex.C-9, copy of pass book entries of complainant Ex.C-7 as well as affidavit Ex.OP-1/1 of Baldev Singh Bajwa, Director of OPs, it is made out that OPs have admitted having received Rs.10,71,875/- in all from complainant. Though complainant claims that the terms of agreement Ex.C-4 were changed at his back, but despite that claim of the complainant in that respect is not tenable because if really change of terms of Ex.C-4 would have taken place without consent of complainant, then complainant would not have kept mum from 14.04.2012 till filing of this complaint on 23.05.2017. As complainant came in possession of agreement Ex.C-4 immediately after its execution and as such virtually complainant after going through terms and conditions of Ex.C-4 was bound to know contents of the same.  So long silence for more than four years on part of complainant enough to infer as if the complainant acquiesced in the terms and conditions of agreement Ex.C-4. As OPs through affidavit Ex.OP-1/1 has admitted having received above referred amount of Rs.10,71,875/- and as such same admission enough to prove deposit of this amount by complainant with OPs.

6.             Payment schedule Ex.C-3 is produced on record and terms of the same not denied by complainant in the complaint or through submitted affidavit. It was after issue of notices Ex.C-5 and Ex.C-6 that complainant further deposited next installments. After going through Ex.C-4, it is made out that plot of size of 125 sq. yards in  Sector 124, Sunny Enclave was allotted to complainant. Complainant claims that in 2015, after getting back agreement Ex.C-4 from him, fresh agreement was handed over to him by mentioning the changed number of Sector as 123 from 124 and that fact is borne from copy of agreement Ex.C-9 of same date namely 14.04.2012.

7.             It is contended by counsel for complainant that after getting RTI information through letter Ex.C-11, complainant got knowledge as if no license by PUDA/GMADA granted in favour of OPs regarding development of New Friends Enclave in Sector 124, SAS Nagar. Mention of name of New Friends Colony not made in Ex.C-4 or in Ex.C-9 and as such it is obvious that information contained in Ex.C-11 exclusively pertain to the factum as to whether developer license got by OPs for developing New Friends Enclave in Sector 124 or not. However, it is the case of OPs that New Friends Enclave is part of chunk of land falling in Sector 123-124 for which developer license has already been got by OPs. It is claimed through Para No.3 of affidavit Ex.OP-1/1 of Baldev Singh Bajwa, Director of OPs that on request of complainant for shifting from Sector 124 in area of Greater Mohali to Sector 123 in area of Greater Mohali, agreement dated 14.04.2012 was reduced into writing for mentioning the size of plot as 125 sq. yards in Sector 123.

8.             Photographs Ex.C-1, C-8 and Ex.C-10 shows as if some development work alone carried on the spot because construction of some houses shown to be existing in some of these photographs. However, remaining land is lying vacant and as such it is obvious that it is not a case in which development activity not carried at all on the spot. Rather it is a case in which some development activity carried on the spot and that is why construction of some houses shown in these photographs.  So submission advanced by counsel for complainant has no force that altogether no development activity carried on the spot.

9.             It is also contended through written arguments submitted by counsel for complainant that verbal assurance was given by OPs to complainant for making loan facility available from bank, but no such assertion found in agreement Ex.C-4 or Ex.C-9 and as such submission advanced by counsel for OPs has force that actually such assurance was never given, more so when grant or non grant of loan depends on the CIBIL score of the loanee alongwith source of income or of return back of loan amount. So, allegation regarding assurance of getting loan provided by OPs to complainant is incorrect.

10.           It is contended by counsel for complainant that approval of CLU for the project has not been received by OPs, but despite that complainant had been forced to pay amount of Rs.2,00,000/- by issue of notice, due to which he had to pay the said amount on 03.03.2015 and as such unfair trade practice adopted by OPs. That submission of counsel for complainant does not seem to be having force because contents of affidavit Ex.OP-1/1 of Director of OP Company show that approval of the project had already been obtained, but due to change of lay out plan, sector number is changed. It is claimed through Para No.4 of affidavit Ex.OP-1/1 that area of Sector 123 was duly notified in Punjab Govt. Gazette on 18.06.2013, whereby exemption from operation of Punjab Apartment and Property Regulation Act was given to OPs. No record produced to show that such exemption for development of Sector 123 has been obtained by OPs. Even though information collected under RTI shows that license for developing New Friends Enclave in Sector 124 is not granted by PUDA/GMADA, but it is the claim of OPs that area in Sector 123 has been developed and plot is ready for possession since from June 2014 and the same fact cannot be held to be incorrect altogether more so when in photographs Ex.C-1, Ex.C-8 and Ex.C-10, existence of some of fully constructed houses is visible. As plot is ready for delivery and as such counsel for OPs contends that complainant may take possession of the plot in Sector 123, but that offer not accepted by counsel for complainant by contending that complainant to get back the deposited amount with interest from the dates of deposit. It is admitted by complainant in complaint itself that last of the payment was made on 03.03.2015, but if contents of Ex.C-4 and Ex.C-9 taken into consideration, then this means that 20% of the amount was payable after CLU, but balance 25% was payable as first installment on 10.10.2012, whereas balance 20% was payable on 10.01.2013 as second installment and remaining 10% was payable finally on possession/registration. As complainant himself has paid the first installment of Rs.4,84,375/- and even paid amount of Rs.3,87,500/- and Rs.2,00,000/- virtually and as such those payments made by complainant after acknowledging as if CLU has been got by OPs. So in the absence of production of record that OPs have not obtained the requisite sanctions for developing Sector 123, submission advanced by counsel for OPs has force that actually license for developing sector 123 was already available with OPs. In such circumstances, non sticking to payment schedule by complainant denudes him from claiming interest from the dates of deposit, more so when as per law laid down in Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC), if the purchaser remained defaulter in not adhering to the installment payment plan, then he is not entitled for any interest, even though the builder had not developed the site, due to which he is not in a position to deliver possession. It is so because he who seeks equity must do equity. In case the equity seeker himself is deficient, then he is not entitled for any interest, is the crux of ratio of above said case. Ratio of this case is fully applicable to the facts of the present case.  Being so entitlement of complainant for claiming interest will be with effect from the date of first ever demand of refund put forth this complaint filed on 23.05.2017. Complainant in this case has deposited Rs.10,71,875/- out of total sale consideration of Rs.19,37,500/- and as such virtually he has deposited 55% of the total sale consideration amount only.

11.           Counsel for complainant vehemently placed reliance on decision rendered by Hon’ble State Consumer Disputes Redressal Commission in Consumer Complaint Nos.1071, 1072, 1099 and 32 decided through common order dated 19.04.2018 titled as Sarwan Singh Kalsi  and others Vs. Bajwa Developers Ltd. for arguing that complainant entitled for interest @ 12% per annum from the different dates of deposits till actual payment. Present case is a case in which OPs offering to give possession but complainant denying to get possession just by claiming that he is entitled for refund of the entire paid amount only. As per Section 12 of Punjab Apartment and Property Regulation Act, 1995 if the promoter fails to give possession in accordance with terms of agreement for reasons beyond his control and of his agents by specified date or further agreed date, then the promoter shall be liable on demand, but without prejudice to any other remedy to which he may be liable, to refund the amounts already received by him in respect of that plot or apartment with simple interest at the rate as may be determined by competent authority from the date the promoter received the sums till the date the amounts and interest thereon is refunded.  However, present is not a case in which OPs denying to deliver possession, but they are claiming as if plot is ready for delivery since from 2014, but it is complainant himself who has not adhered to payment plan and as such in view of ratio of case of Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. (supra) and in view of provisions of Punjab Apartment and Property Regulation Act, 1995, entitlement of complainant for interest will be with effect from the date of first ever demand put forth for refund and not before that.

12.          Complainant certainly is consumer of OPs within meaning of Section 2 (1) (d) of CPA because he availed services of OPs for purchase of plot on payment of part of sale consideration with promise of paying balance amount on execution of sale deed or on getting of possession of plot 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.10,71,875/- with interest.

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.

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.10,71,875/- (Rs. Ten Lakhs Seventy One Thousand Eight Hundred Seventy Five only) with interest @ 12% per annum from the date of filing of complaint namely 23.05.2017  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 failing which complainant will be entitled to interest on the amounts of compensation and litigation expenses @ 7% per annum after expiry of said period of 30 days of receipt of certified copy of the order till payment. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

October 11, 2018.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member