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

Consumer Complaint No.783 of 2018

                                                Date of institution:  30.07.2018                                             Date of decision   :  19.06.2019

Smt. Harjinder Kaur daughter of Mewa Singh, resident of House No.726, Phase-6, Mohali (Punjab).

…….Complainant

Versus

Bajwa Developers Ltd. through Shri Jarnail Singh Bajwa (Managing Director), Sunny Business Centre, 5^th & 6^th Floor, New Sunny Enclave, Opposite North Country Mall, Greater Mohali, Sector 125, Tehsil Kharar, District Mohali (Punjab).

                                                            ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Ms. Sofia Paul, counsel for complainant.

                Shri Amit Sharma, counsel for OP.

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

Order

               Complainant got booked one BHK Flat BR No.1457 having area of 450 sq. ft. in Sector 74-A, 117, Mohali with OP by entering into agreement dated 11.03.2014. Total sale consideration of Rs.12,00,150/- was payable, but the following payments were made by complainant to OP:

                Possession was to be handed over within two years as per verbal communication by the OP. No booklet was provided regarding terms and conditions of booking of plot of Economically Weaker Sections of society. OP made many times false representations to complainant regarding delivery of possession. Despite visit to office of OP many times, OP disclosed complainant as if approvals will be obtained and work will start in few days. However, no construction work carried on the spot and that is why by claiming that OPs adopted unfair trade practice, this complaint filed for seeking refund of paid amount of Rs.4,80,000/- with interest @ 18% per annum. Compensation for mental agony and harassment of Rs.3.00 lakhs and miscellaneous expenses of Rs.10,000/- plus litigation expenses of Rs.20,000/- more claimed.

2.             In reply filed by OPs, it is pleaded inter alia as if complainant is not consumer within meaning of Section 2 (1) (d) of Consumer Protection Act because she got the plot/flat meant for EWS category of the society by misrepresenting OPs. This flat was liable to be allotted to the persons having income from all sources less than Rs.3.00 lakhs. Complainant has not produced any certificate showing that her income from all sources is below Rs.3.00 lakhs per annum and nor she has submitted affidavit to the effect that she or her spouse or dependent children do not own any other flat/plot/house in the vicinity of Mohali, Chandigarh and Panchkula. Even complainant has not submitted domicile certificate for showing that she is domicile of Punjab State, despite requirement of Clause-7 of the agreement dated 11.03.2014. Flat was sold below 25% of actual price to economically weaker sections of the society i.e. at subsidized price and as such relationship of consumer and service provider do not exist. Last transaction took place on 13.03.2012, but this complaint filed on 30.07.2018, despite the fact that period of limitation of three years expired on 13.03.2016. Admittedly complainant applied for one BHK flat, but after expressing her interest in purchase of the same by agreeing to pay price of Rs.12.00 lakhs. Complainant went through terms of agreement dated 11.03.2014 and agreed to abide by same. On assurance of complainant that she belongs to economically weaker sections of the society, amount of Rs.4.80 lakhs was accepted by OP by way of adjusting the same towards earnest amount. Delivery of possession was subject to submission of requisite certificates, affidavits and balance sale consideration as per clause-2 of agreement of sale. On account of breach of terms of contract regarding payment of balance sale consideration amount and non submission of documents, complainant not entitled to any relief, more so when she admitted as if letter dated 10.07.2017 was sent to her regarding submission of requisite documents with OP. It is claimed that complainant committed fraud with OP because she booked the flat meant for economically weaker sections of the category despite the fact that she does not belong to that category. Despite repeated asking, complainant failed to abide by terms of agreement as aforesaid and as such prayer made for dismissal of the complaint.

3.             Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith document Ex.C-1 to Ex.C-3 and then her counsel closed evidence.  On the other hand counsel for OP 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 heard and records gone through.

5.             Both the parties admits as if complainant deposited Rs.4,80,000/- with OP and thereafter agreement Ex.C-1 was arrived at as per which total sale consideration of Rs.12,00,150/- was payable as per schedule of payment mentioned in Clause-2 of agreement Ex.C-1. Endorsements regarding receipt of Rs.4,80,000/- also made by OP on this agreement Ex.C-1 and as such it is obvious that complainant able to establish as if she deposited Rs.4,80,000/- with OP. As balance payment not made and as such it is vehemently contended by counsel for OP that amount in dispute as earnest amount liable to be forfeited, but that submission of counsel for OP has no force because evidence produced by complainant through her affidavit establishes as if no construction work carried on the spot and requisite sanctions from competent authorities for developing the colony in question not obtained at the time when amount was accepted from complainant. OP has not produced on record any document to show that it got requisite sanctions/approvals from competent authorities despite the fact that such documents bound to be in power and possession of OP. Being so, it has to be held that amounts referred above were accepted from complainant by OP at the time when requisite sanctions/approvals from competent authorities were not obtained. So certainly OP committed violation of provisions of Sections 3 and 5 of PAPRA Act and as such complainant entitled to refund of amounts 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. 

6.             OP claims through written reply as well as affidavit Ex.OP-1/1 of Baldev Singh, Director of OP that agreement in question be treated as void and as such virtually the agreement in question sought to be rescinded by OP. In view of that virtually OP is 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 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 OP, if it wants to treat it as void.

7.             It is vehemently contended by counsel for OP 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 OP himself remained at fault in not getting the formalities complied with in that respect by issue of notice or otherwise and as such in case OP 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 it cannot retain the received amount because in doing so it virtually seeking unjust enrichment. OP himself is also at fault in not starting the construction.

8.             Even if assuming for arguments sake that consent of OP in entering into agreement Ex.C-1 was obtained by complainant by misrepresentation of her 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 OP not entitled to retain amount of Rs.4,80,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in agreement Ex.C-1.

9.            Complainant certainly is consumer of OP within meaning of Section 2 (1) (d) of CPA because she 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 lay with OP in not fulfilling promise of delivering the possession to complainant. For that fault of OP, complainant cannot be made to suffer and as such on equitable considerations also, complainant entitled for refund of paid amount of Rs.4,80,000/- with interest.

10.            Benefit from ratio of case titled as State of Gujarat Vs. Rajesh Kumar Chiman Lal Barot, AIR 1996 SC 2664 cannot be availed by OP 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 OP 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 OP 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.

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 OP 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 OP has 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 OP 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.            As a sequel of above discussion, complaint allowed by directing OP to refund the received amount of Rs.4,80,000/-   (Rs. Four Lakhs Eighty 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  OP.  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

June 19, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member