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

Consumer Complaint No.329 of 2017

                                                Date of institution:  03.05.2017                                             Date of decision   :  14.09.2018

Tripta Bhatia wife of Shri S.P.Bhatia, resident of House No.221/1, Sector 45-A, Chandigarh.

…….Complainant

Versus

1.     M/s. Bajwa Developers Ltd., Sunny Enclave, Sector 125, Mohali through its Managing Director Shri Jarnail Singh Bajwa.

2.     Shri Jarnail Singh Bajwa, Managing Director, M/s. Bajwa Developers Ltd., Sunny Enclave, Sector 125, Mohali.

                                                            ……..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 Paras Chug, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

               An agreement dated 05.06.2011 was arrived at between the parties, as per which one BHK Flat BR No.1480 in Sunny Apartment  was to be given to complainant on total sale consideration of Rs.12,00,150/-. Area of the flat is 450 sq. ft. Rs.3.00 lakhs were paid at the time of agreement and balance amount in 5 installments of Rs.1,80,000/-  each was to be paid. Earnest amount of Rs.1.00 lakhs was paid on 12.05.2011, but Rs.2.00 lakhs were paid on 04.06.2011 and thereafter another amount of Rs.1,80,000/- paid through cheque of 22.10.2011 and further amount of Rs.1,80,000/-  on 09.02.2012.  Amount of Rs.1,80,000/- more paid by complainant to OPs on 08.06.2012. In this way, total amount of Rs.8,40,000/- has been paid by complainant to OPs regarding which receipts in the shape of endorsements on agreement made by OPs. Possession of fully constructed flat was to be delivered on or before 31.12.2013, but OPs have not started any construction on the site in question despite the fact that date for delivery of possession was extended to 30.06.2014 in the first instance, but to 11.11.2014 and then to 30.07.2015 and 07.01.2016 subsequently. In April, 2016 complainant requested OPs for refund of the paid amount because construction as per knowledge of complainant could not be carried on the spot. Assurance for delivery of possession upto 31.07.2016 was given and then again this assurance for delivery of possession upto 31.12.2016 was given, but to no effect. As per knowledge of complainant, license for developing the colony was granted by GMADA to OPs on 13.11.2014 only. As neither the amount has been refunded and nor possession delivered and nor OPs are in a position to carry the construction on the spot and as such this complaint filed for seeking refund of paid amount of Rs.8,40,000/- with interest @ 9% per annum from the dates of deposits till actual payment. Compensation for mental agony and harassment of Rs.1.00 lakh and litigation expenses of Rs.55,000/- more claimed.

2.             In reply submitted by OPs, it is admitted that complainant after approaching OPs expressed his intention to purchase the flat and thereafter agreement of sale dated 05.06.2011 was arrived at. Admittedly complainant paid Rs.8,40,000/- out of total sale consideration of Rs.12,00,150/-. However, it is claimed that construction and possession of the flat was limited to payment plan annexed with the agreement. Final payment was to be made on 04.12.2012, but complainant failed to make payment as per payment schedule because no payment after 10.06.2012 made by complainant. As period of four years has elapsed and as such complaint alleged to be barred by limitation in view of Section 27 read with Article 54 of Indian Limitation Act. As per Clause-3 of the agreement, in case any installment not paid within 15 days from the stipulated date, then the amount deposited to stand forfeited. However, as per Clause-7 of agreement of sale, complainant is to abide by norms for allotment of flat to economically weaker sections of the society. Complainant flouted these norms by pretending as if he is  eligible for allotment of these flats, despite the fact that he belongs to affluent section of the society. It is claimed that consent of OPs was obtained by fraud and as such agreement is void ab-initio. Besides relationship of consumer and service provider do not exist between the parties and as such in view of complainant being not consumer within meaning of Section 2 (i) (d) of Consumer Protection Act, prayer made for dismissal of the complaint. Other averments of the complaint denied.

3.             Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.
C-12 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 of OPs and thereafter closed evidence.

4.             Written arguments submitted by complainant. Oral arguments heard and records gone through.

5.             Both the parties in this case relies on agreement Ex.C-1 dated 05.06.2011 vide which price of the one BHK flat in question having 450 sq. ft. area was fixed as Rs.12,00,150/-. From perusal of endorsements made on back of the agreement in question and copies of cheques Ex.C-2, C-3, C-5 and Ex.C-6 and receipts Ex.C-4 and Ex.C-7, it is made out that complainant paid Rs.8,40,000/- out of total sale consideration of Rs.12,00,150/- to OPs. So virtually 70% of the total sale consideration amount has been deposited by complainant with OPs and that shows that complainant remained ready and willing to abide by terms and conditions of agreement Ex.C-1 at all times. However, construction on the site has not been started or carried out till date at all and as such fault lays with OPs, due to which OPs are not entitled to enforcement of Clause-3 of agreement providing for forfeiture of earnest amount, in case 5 installments of Rs.1,80,000/- each not paid in time. OPs in the reply or in the affidavit of its Director have not denied about receipt of Rs.8,40,000/- from complainant. Despite issue of legal notice Ex.C-8 and Ex.C-10 through postal receipts Ex.C-9 to C-11 neither the amount refunded and nor construction carried on the spot and as such OP committed violation of terms and conditions of the agreement in question, despite the fact that complainant performed so much of the contract agreement as is peformable by him till getting of knowledge regarding raising of no construction by OPs or till getting of knowledge that license not got by OPs from GMADA. In view of this exclusive fault on part of OPs, complainant entitled for refund of the entire received amount with interest @ 9% per annum (as claimed in the complaint) from the dates of deposit till payment.

6.             Even as per decision given by Hon’ble State Consumer Disputes Redressal Commission Punjab in First Appeal Nos.775 to 777 decided on 20.11.2017, interest in view of Rule 17 of PAPRA Rules framed under Punjab Apartment and Property Regulation Act, 1995 should be allowed from the dates of deposits. Demanded rate of interest in case before us is 9% per annum and not 12% and as such the same rate of interest is allowed as is demanded because one party can relinquish its claim regarding any part of the entitled reliefs.

7.             It is not denied by OPs in their written reply that requisite sanctions from GMADA and other authorities could not be got earlier. So it is contended by counsel for complainant that OPs committed fraud with complainant and other customers by pretending as if the colony in question is approved one, whereas in fact it was not approved one.  However, that submission has no force because after going through Clause-6 of relied upon agreement Ex.C-1 by parties, it is made out that in case flat/plot going to be sold to complainant for any technical reason, does not get approval of the authorities, then the allottee will be entitled for return of earnest amount, but without seeking compensation. When this specific clause 6 of the agreement exists, and complainant made payments after acknowledging this agreement, then there is no escape from the conclusion that complainant was specifically made aware of the fact that requisite sanctions from authorities yet to be obtained and that is why it has been specifically mentioned in Clause-6 that in case for any technical reason, requisite sanctions from the authorities not received, then refund of the earnest amount without compensation can be claimed by complainant.  As terms of agreement itself provides that complainant was made aware about non getting of approvals by OPs from GMADA and other authorities, and as such plea taken in reply and in the two submitted affidavits of OPs are correct that complainant was made aware at the time of booking of the flat that requisite sanctions/approvals yet to be obtained from competent authorities. Despite this knowledge, complainant booked the flat in question and as such question of commission of fraud by OPs with complainant does not arise. Rather complainant booked the flat in question even after knowing that requisite sanctions yet to be obtained, but in hope that OPs will get the requisite sanctions as projected by them. So allegations of fraud or of cheating not at all made out.

8.             It is also contended by counsel for complainant that OPs accepted amounts in question from complainant for allotment of EWS category flat by assuring as if the flat is in general category. That submission of counsel for complainant again has not much force because after going through Clause-7 of agreement in question, it is made out that duty was cast upon complainant, being purchaser, to comply with the terms and conditions for allotment of flat in EWS category. If OPs have not issued notice to the complainant for calling upon her to comply with requirements for allotment of EWS category flat, then at the same time complainant also remained at fault in not ascertaining as to whether the allotted flat is in general category or is in the category of EWS. So fault also lay with complainant in view of non compliance with the obligation put on her under Clause-7 of the agreement.

9.             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 as are 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.

10.            Even if assuming for arguments sake that consent of OPs 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 OPs not entitled to retain amount of Rs.8,40,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement. That clause of forfeiture is unconscionable in view of the fact that OPs kept on seeking extension from complainant uptill 07.01.2016 for executing sale deed or to deliver possession.

11.           Complainant certainly is consumer of OPs within meaning of Section 2 (1) (d) of CPA because she 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.8,40,000/- with interest.

12.            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.

13.            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.

14.            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.

15.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.8,40,000/- (Rs. Eight Lakhs  Forty Thousand only) with interest @ 9% 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, failing which OPs are liable to pay interest @ 7% per annum on these amounts of compensation and litigation expenses from today till recovery. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

September 14, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                       (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member