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

Consumer Complaint No.963 of 2018

                                                Date of institution:  12.09.2018                                             Date of decision   :  23.07.2019

Sonia Malhotra wife of Anil Malhotra, resident of Kaushal Vihar, Nabha, District Patiala.

…….Complainant

Versus

Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali (Punjab) through its Managing Director.

                                                    ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Kulwinder Singh, counsel for complainant.

                Shri Amit Sharma, counsel for OP.

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

Order

                On being convinced by officials of OP, complainant booked one BHK BR No.1461 flat having area of 450 sq. ft. for Rs.12.00 lakhs. Agreement dated 14.05.2011 was arrived at. Complainant paid Rs.4,80,000/- on different dates to OP. As per payment plan schedule, final payment was to be made on 14.11.2012, i.e. the date of delivery of possession. Date of delivery of possession was mentioned as month of November, 2012, but OP got CLU from GMADA on 19.05.2014 subject to getting of approvals from other statutory bodies. Complainant is waiting for getting possession, but same has not been handed over till date. It is further claimed that OP has failed to put even a single brick on the site even after lapse of more than 4 years. By pleading that OP adopted unfair trade practice, this complaint filed for seeking refund of paid amount of Rs.4,80,000/- with interest @ 12% per annum from the dates of payment till realisation.  Compensation for mental agony and harassment of Rs.1.00 lakh and litigation expenses of Rs.35,000/- more claimed.

2.             In reply filed by OP, it is pleaded as if contract is void abinito because consent of OP obtained by misrepresentation and by playing fraud. Though complainant claims herself to be belonging to economically weaker section of the society, but in fact she belongs to affluent section of the society. As per Clause-7 of agreement of sale, complainant was supposed to submit certificate showing income not exceeding Rs.3.00 lakhs per annum and even she was required to submit domicile certificate showing resident of State of Punjab alongwith affidavit to the effect that neither she nor her spouse and nor dependent children owns any other house/flat/plot in the vicinity of Mohali, Chandigarh and Panchkula. Complaint also alleged to be barred by limitation because last transaction took place on 09.12.2011 and as such period of limitation of three years as envisaged by Section 24-A of Limitation Act stood expired on 09.12.2014, but this complaint filed in 2018. Flat was sold at subsidized price i.e. 25% below normal price to the members of economically weaker sections of the society, due to which relationship of consumer and service provider do not exist between parties and as such this Forum has no jurisdiction. Admittedly OP floated scheme of developing housing project in Sector 74-A, Mohali and flat of 450 sq. feet was allotted to complainant at subsidized sale consideration of Rs.12.00 lakhs. Agreement of sale was reduced into writing on 14.05.2011. Admittedly complainant paid Rs.4,80,000/- as alleged. Complainant is not consumer within meaning of Section 2 (1) (d) of Consumer Protection Act. In the Master Plan of year 2009, GMADA reserved whole of Sector 74-A, Mohali for allotment of flats/plots to members of economically weaker sections of the society and that plan was approved by Govt. of Punjab. Complainant was made aware of that fact at the time of entering into agreement of sale. By denying each and every other averment of the complaint, prayer made for dismissal of the complaint.

3.             Complainant in order to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 and Ex.C-2 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, Director and thereafter closed evidence.

4.             Written arguments not submitted. Oral arguments heard and records gone through.

5.             From the pleadings of the parties and the submitted affidavits Ex.CW-1/1 and Ex.OP-1/1 as well as agreement Ex.C-1, it is made out that complainant purchased one BHK flat for consideration of Rs.12,00,150/-, out of which Rs.4,80,000/- was paid by complainant to OP on different dates regarding which endorsements are made by OP on document Ex.C-2. Even OP has not denied about receipt of this amount of Rs.4,80,000/- and as such certainly complainant able to establish as if she has paid Rs.4,80,000/- to OP in consideration of booking of one BHK flat. Though entire sale consideration amount was payable in 6 installments, but complainant paid only Rs.4,80,000/- and as such it is vehemently contended by counsel for OPs that default had been committed by complainant in not paying due installments, due to which earnest money liable to be forfeited in view of Clause-3 of agreement. That submission of counsel for OP has no force because requisite sanctions from GMADA for this project of Sector 74-A, 117 had been obtained by OPs on 19.05.2014 is a fact proved in other cases like CC No.274 of 2017 titled as Amanpreet Singh vs. MD Bajwa Developers Ltd. decided on 01.07.2019 by this Forum.  Though complainant claims that CLU obtained by OP on 19.05.2014, but that fact has not been denied specifically by OP,  and as such it is established that CLU was obtained by OP on 19.05.2014 and not before that. However, amounts in question accepted from complainant in 2011, as referred above and as such virtually amounts in question accepted by OP 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 OP, due to which it is 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. 

6.             As requisite sanctions/approvals from GMADA authorities obtained in May, 2014 and as such construction or development works could not have been carried by OP till then. Being so, case of complainant fully believable that OP has not started construction on the spot and nor it has carried on any development works resulting in unnecessary harassment of complainant at the hands of OP. As such complainant entitled to compensation for mental agony and harassment.

7.             Certainly sale consideration amount was payable in 6 installments, but complainant has only paid Rs.4,80,000/-. 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 OP 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 OP has no force because in case enforcement of Clause-3 of agreement ordered, then it will amount to giving undue benefit to OP over complainant, more so when OP itself 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.4,80,000/-. Besides OP has 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 OP resulting in non deposit of balance installments by complainant.  Non deposit of balance installments was on account of the fact that OP did not carry on any development activity on the spot and nor it obtained requisite sanction until 2014, as referred above.

8.             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 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 EWS category flat in question, despite that agreement at the most can be declared as voidable at the option of OP, if it wants to treat it as void.

9.             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 itself 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 is seeking unjust enrichment. OP itself is also at fault in not starting the construction.

10.            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.

11.           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 lays 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.

12.            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 distinct than those of the case before us.

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 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.

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 OP 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 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

July 23, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member