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

Consumer Complaint No.562 of 2018

                                                Date of institution:  15.05.2018                                         Date of decision   :  11.09.2019

Amardeep Chaudhary son of Roshan Lal Chaudhary, resident of House No.167, Sector 12, Panchkula, Haryana.

…….Complainant

Versus

1.     M/s. Bajwa Developers Ltd.  Regd. Office Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali through its Director (E-mail: sunnyenclavepatiala@yahoo.com)

2.     Mr. Jarnail Singh Bajwa son of Shri Bishan Singh, Managing Director, M/s. Bajwa Developers Ltd., Regd. Office Sunny Enclave, Desu Majra, Tehsil Kharar,  District Mohali.

3.     Baldev Singh, Director, M/s. Bajwa Developers Ltd., Regd. Office Sunny Enclave, Desu Majra, Tehsil Kharar,  District Mohali.

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Shri Arif Qureshi, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

                 Complainant and OPs entered into agreement dated 20.05.2011, as per which one BHK BR No.(77) 1077 situate in Sunny Apartment F21, Mohali Sector 74A, 117 measuring 450 sq. ft. was sold by OPs to complainant for total sale consideration of Rs.12,50,100/-. Complainant paid Rs.3,12,500/- to the OPs through two cheques and thereafter Rs.1,87,800/- was paid by complainant to OPs on 19.11.2011.  Thus in all complainant paid Rs.5,00,300/- to OPs.  Complainant got knowledge as if OPs have not obtained requisite permissions from appropriate authorities regarding which query was put to OPs, but they failed to give satisfactory reply. No positive steps taken by OPs even for return of amount paid by complainant to OPs.  Site underneath the project is un-developed and project is delayed beyond reasonable time. Complainant sent legal notice dated 09.05.2017 for seeking refund of paid amount with interest @ 24% per annum, but to no effect. OPs offered complainant to choose from other properties of OPs situate in Sectors 123, 124 and 125 and Sector 74-A at Sunny Urban Homes. However, offer made by OPs is not acceptable to complainant. OPs have not offered possession of the flat even till date and they have been making false promises of handing over possession. By pleading deficiency in service on part of OPs, prayer made for directing OPs to refund amount of Rs.5,00,300/- alongwith interest @ 24% per annum. Litigation expenses of Rs.25,000/- and compensation for mental agony and harassment of Rs.2,50,000/- more claimed.

2.             In reply filed by OPs, it is pleaded as if relationship of consumer and service provider do not exist because of violation of Clause-7 of agreement of sale committed by complainant, due to non providing of certificate regarding income of complainant less than Rs.3.00 lakhs per annum from all sources and also due to non providing of certificate of domicile or the affidavit that complainant or his spouse or dependent children do not own any other flat/plot/house in the vicinity of Mohali, Chandigarh and Panchkula. Flat was sold to complainant at concessional price in view of Section 5 (9) of PAPRA Act. Complaint also alleged to be barred by limitation because last transaction in this case took place on 19.11.2011. It was complainant himself who visited OPs for expressing his interest in purchase of flat in question, but by agreeing to Clause-7 of agreement dated 20.05.2011. Possession of flat was delayed due to non submission of requisite certificates and the balance sale consideration by complainant. Option was given to complainant to choose another flat/plot out of the projects of OPs, if he do not belong to economically weaker sections of society, but complainant failed to submit such option even.  Complainant himself guilty of breach of contract and he is liable to pay damages to the extent of Rs.10.00 lakhs in view of Section 75 of Indian Contract Act.  By denying each and every other averment of the complaint, prayer made for dismissal of the complaint.

3.             Complainant in order to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-7 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.             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.5,00,300/- was paid by complainant to OPs on different dates regarding which endorsements are made by OPs on the back side of this agreement.  Dispute is raised by OPs regarding non receipt of amount of Rs.1,87,800/- regarding which endorsement in hand recorded at back of agreement Ex.C-1 as well as on Ex.C-2. OPs have not bothered to examine any witness to prove that this endorsement of payment of Rs.1,87,800/- is not in hands of Directors or any other representative of OPs. Case of complainant since from issue of notice Ex.C-3 through postal receipt Ex.C-4 that payment of Rs.5,00,300/- has been made by him, but despite that OPs have not bothered to produce copy of ledger sheet of their account books for proving that disputed entry of Rs.1,87,800/- is not incorporated in their record. So OPs themselves have withheld the best evidence available with them for showing that entry of Rs.1,87,800/- is improper or not in the hands of Directors or other representative of OPs.  As OPs bound to keep its accounts audited and as such due maintenance of records is one of the pre-requisite to be fulfilled by OPs. In view of this due maintenance of accounts by OPs, it was for OPs to produce their record for showing that amount of Rs.1,87,800/- actually not received by them. Such proof not produced deliberately and as such inference is obvious that actually complainant paid Rs.5,00,300/- to OPs as claimed by him. Though entire sale consideration amount was payable in 6 installments, but complainant paid only Rs.5,00,300/- 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 OPs 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. 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. 

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 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.

7.             Certainly sale consideration amount was payable in 6 installments, but out of that three installments at the most virtually including earnest amount alone can be said to be paid by complainant to OPs because Rs.5,00,300/- 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.5,00,300/-. 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.

8.             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.

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, 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 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.5,00,300/- 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 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.5,00,300/- 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 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.

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 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.

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.           Though OPs claim that they are entitled to compensation of Rs.10.00 lakhs in view of Section 75 of Indian Contract Act for breach of contract committed by complainant by not paying the balance sale consideration or submitting requisite certificates of income or of domicile, but major fault lays with OPs in not getting the requisite sanctions/approvals from competent authorities before acceptance of amounts in question from complainant. So violation of PAPRA Act, as referred above has been committed by OPs. In view of this violation committed by OPs, they are not entitled to any amount of compensation at all from complainant.

17.           As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.5,00,300/- (Rs. Five  Lakhs Three Hundred 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

September 11, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member