DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.274 of 2017
Date of institution: 12.04.2017 Date of decision : 01.07.2019
Amanpreet Singh son of Shri Rajinder Singh aged 45 years (approx), resident of 6/1, Chander Nagar, Alambag, Lucknow.
…….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
Complainant being in personal need got booked one BHK BR No.1407 having area of 450 Sq. ft with OPs for total sale consideration of Rs.12,52,000/- approximately. Agreement was arrived at on 18.04.2011/23.05.2011. Complainant paid Rs.2.00 lakhs on 18.04.2011 and Rs.1,25,000/- on 24.05.2011. Though date for delivery of possession in November, 2012 was given, but despite wait such possession has not been handed over. It is further claimed that OPs were not having requisite permissions/approvals from GMADA authorities for setting up residential colony in Sector 117, 74-A, SAS Nagar in the name of Sunny Basant. Permissions from GMADA authorities obtained only on 19.05.2014 and that too subject to getting of approvals from other statutory bodies. Complainant was in dire need of accommodation because he is working at Lucknow due to his posting there, but his family residing in the rented accommodation in Mohali due to which complainant was aspiring to shift his family in his own house. Date for delivery of possession as 24.11.2012 was given by the OPs by making false assurances knowing fully well that construction could not be carried out unless requisite permissions obtained from competent authorities. OPs refused to accept earnest amount from the complainant because they were well aware of non possession of permissions from statutory authorities. 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. OPs sold the flat to the complainant knowing fully well that the same was earmarked for economically weaker sections of the society, but the amount received by mentioning as if this flat belongs to general category. OPs in this way adopted unfair and restricted trade practice for defrauding customers. 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.
2. In reply filed by OPs, it is pleaded as if complaint barred limitation in view of Article 54 read with section 27 of Indian Limitation Act because last payment was made on 24.05.2011, but present complaint filed on 12.04.2017 i.e. after period of more than five years. Flat meant for economically weaker sections of the society got allotted by complainant by concealing his identity of being affluent member of the society by keeping OPs in dark. 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, 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 sand 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. Other averments of the complaint denied.
3. Complainant in order to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document 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. Execution of agreement Ex.C-1 between parties on 29.05.2011 admitted. After going through endorsements made under signatures of OPs on this agreement, it is made out that amount of Rs.3,25,000/- paid by complainant to OPs on two dates. That fact has not been denied by OPs in the written reply or in the submitted affidavit and as such complainant able to establish as if amount of Rs.3,25,000/- paid by him to OPs, out of settled price amount of Rs.12,50,100/- of the flat in question. Complainant paid only Rs.3,25,000/- and has not paid the balance installments mentioned in Clause-2 of agreement and as such it is vehemently contended by counsel for complainant that the amount deposited liable to be forfeited in view of Clause-3 of agreement. However, submission of counsel for OPs alongwith contents of letter Ex.C-2 issued by GMADA in favour of OPs establishes that requisite sanctions from GMADA were obtained on 19.05.2014 subject to terms and conditions incorporated in Ex.C-2. However, amounts in question accepted from complainant in 2011, as referred above and as such virtually amounts in question accepted by OPs from complainant even prior to obtaining of requisite sanctions/approvals from competent authorities. Being so, violation of Sections 3 and 5 of PAPRA Act committed by OPs, due to which they are liable for refund of 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 of PAPRA Regulations. Reliance for this purpose also 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. As requisite sanctions/approvals from GMADA authorities obtained in May, 2014 and as such construction or development works could not have been carried by OPs till then. Being so, case of complainant fully believable that OPs have not started construction on the spot and nor they have carried on any development works resulting in unnecessary harassment of complainant at the hands of OPs. As such complainant entitled to compensation for mental agony and harassment.
8. 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 giving 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. Non deposit of balance installments was on account of the fact that OPs did not carry on any development activity on the spot and nor they obtained requisite sanction until 2014, as referred above.
9. 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.
10. 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.
11. 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.
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 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.
13. 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 distinct than those of the case before us.
14. 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.
15. 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.
16. 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.
17. 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
