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

Consumer Complaint No.1032 of 2017

                                                Date of institution:  06.12.2017                                             Date of decision   :  12.09.2018

Dev Singh son of Shri Chander Singh, resident of House No.163, Sector 6, Panchkula (M) 9569910233.

…….Complainant

Versus

M/s. Bajwa Developers Ltd,  through its M.D. Jarnail Singh Bajwa son of Shri Bishan Singh, SCO NO.17-18, Sunny Enclave, Desu Majra, Kharar, District SAS Nagar, Mohali.

                                                            ……..Opposite Party

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 Piyara Lal Sinduria, counsel for complainant.

                Shri Amit Sharma, counsel for OP.

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

Order

               Complainant being member of New Friend Enclave Hosing Group of PGI/PU Govt. employees, booked 125 sq. yards of plot bearing No.221 in Sector 124, Sunny Enclave,  Desu Majra, Kharar with OP in 2012 by depositing Rs.50,000/- vide receipt dated 25.01.2012. Complainant was attracted due to lucrative promises made by OP through advertisements in various newspapers. OP promised for providing hassle free life to the plot holders by promising to provide facilities like water head tank, sewerage pipe line, developed park and street lights alongwith roads. Promise for delivery of possession of the plot till July 2013, was made through executed agreement dated 30.04.2012 between the parties. OP was registered as developer with GMADA and as such was qualified for obtaining license under Section 5 of Punjab Apartment and Property Regulation Act, 1995. License of OP was valid for three years only. It is claimed that OP is not having license now because the same might have expired in 2016 itself. That license has not been renewed by concerned authorities. Though as per agreement, possession was to be delivered within 12 to 20 months i.e. on or before July 2013, but the same has not been delivered till date. OP has been charging 18% interest from the buyers in the event of late payment of installments. Now OP has started giving offer of plots to the allottees in New Friends Enclave Group in another Sector bearing No.123,  even without completing the development and basic works in that colony. It is claimed that OP has not developed Sector 124 to the knowledge of the complainant and that is why OP is offering plots in Sector 123 now. By pleading deficiency in service on part of OP, prayer made for directing OP to refund the received amount of Rs.4,84,375/- with interest @ 18% per annum. Compensation for mental agony and harassment of Rs.1.00 lakh   and litigation expenses of Rs.20,000/- more claimed. Interest is claimed since from July 2013 till actual realisation.

2.             OP filed reply by claiming that complainant expressed desire for purchase of plot of 125 sq. yards in Sunny Enclave by depositing Rs.50,000/- and thereafter agreement was reduced into writing between parties. Admittedly OP Company is incorporated under the Indian Companies Act, 1956 and OP has obtained license to develop colony from Govt. of Punjab. It is claimed that OP Company was granted exemption from operation of Punjab Apartment and Property Regulation Act.  Plot in Sector 123 was offered only at the request of complainant because the said sector is close to 200 feet wide Airport Road leading to New Chandigarh. That accommodation in Sector 123 is more precious. Possession of plot chosen by complainant is ready since from June, 2014 and intimation in this regard was sent to complainant for calling upon him to deposit the balance sale consideration. However, complainant committed breach of terms of contract by not depositing the balance sale consideration. Last payment in this case was made in 2012, but present complaint filed in 2017 after period of five years and as such complaint alleged to be barred by limitation in view of Section 27 of Indian Limitation Act read with Article 54 thereof. Delivery of possession of plot stood delayed on account of nonpayment of balance sale consideration by complainant. Other allegations of the complaint denied.

3.             Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.
C-5 and then closed evidence.  On the other hand counsel for OPs 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.             After going through letter of invitation of allotment Ex.C-3, it is made out that total cost of the plot of 125 sq. yards agreed to be purchased by complainant was Rs.19,37,500/-. As per Ex.C-3 and the payment schedule Ex.C-4, 20% of the amount was to be deposited after CLU, but 25% upto 10.10.2012; balance 20% upto 10.01.2013 and remaining 10% at the time of delivery of possession/registration of the sale deed. 25% of amount was to be deposited as booking amount and as such Rs.4,84,375/- was to be deposited as booking amount as per contents of Ex.C-3. Complainant deposited Rs.50,000/- on 25.01.2012 through receipt Ex.C-2. Schedule of payment even specified in agreement of sale Ex.C-4. Details of paid amounts on different dates by complainant are mentioned in the receipt which is part of Ex.C-4. Through receipt it is admitted by OP as if amount of Rs.4,84,375/- has been deposited by complainant with OP upto 30.04.2012. So it is obvious that out of total sale consideration amount of Rs.19,37,500/-, only Rs.4,84,375/- has been deposited by complainant with OP, which means that 25% of the total sale consideration amount alone deposited by complainant with OP. Though schedule of payment mentioned in Ex.C-4 as well as in Ex.C-3, calls upon complainant to deposit balance 20% after obtaining of CLU by OP, but despite that said amount has not been deposited by complainant with OP, even though OP obtained approval of lay out plan for the project in question from Chief Town Planner on 26.04.2013 as revealed by letter produced as Ex.C-5. Besides, balance amounts of 25% and of 20% which were to be deposited on 10.10.2012 and 10.01.2013 even have not been deposited by complainant with OP and as such it is obvious that complainant not sticked to the payment plan worked out in the agreement and in the letter of invitation handed over to complainant. So certainly fault lays with complainant in not abiding by terms of payment schedule. A person who has not abided by terms of payment schedule himself is a defaulter because of not sticking to the terms of the agreement.

6.             As per law laid down in Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC), if the purchaser remained defaulter in not adhering to the installment payment plan, then he is not entitled for any interest, even though the builder had not developed the site, due to which he is not in a position to deliver possession. It is so because he who seeks equity must do equity. In case the equity seeker himself is deficient, then he is not entitled for any interest, is the crux of ratio of above said case. Ratio of this case is fully applicable to the facts of the present case, particularly when complainant shown to have deposited some installments alone, but has not deposited the remaining installments as per schedule of payments worked out in Ex.C-3 and Ex.C-4. So, complainant will be entitled to interest with effect from the date of filing of complaint, when he sought refund of the deposited amount for the first time.

7.             After going through Ex.C-5, it is made out that approval for lay out plan was obtained by OP from Chief Town Planner, Punjab on the basis of application/letter dated 24.08.2012 w.e.f. 26.04.2013. So it is obvious that OP got approval from the competent authority for raising construction after getting approval of the lay out plan from Chief Town Planner. If the submission advanced by counsel for complainant taken into consideration that this sanction was to remain in force for three years, then it is made out as if this sanction was to remain in force till 2016. However, complainant stopped making payment after 30.04.2012 is made out from the receipt annexed with agreement Ex.C-4 referred above and as such it is obvious that virtually complainant had not been seeking delivery of possession of the plot in question from OP, even though OP was having requisite approval for carving out plot during period from 20.04.2013 to 2016. No explanation has been offered by complainant as to why he did not seek for delivery of possession of plot during this period and as such fault in that respect also lays with complainant.

8.             Un-exhibited copy of letter dated 20.07.2017 bearing reference No.8558 is there on the record to show as if OP through authorised signatory issued this letter to complainant for calling upon him to clear the amount of pending installments with interest on delayed payments within 10 days failing which OP will be left with no alternative, but to cancel the registration regarding booking of residential plot No.221 measuring 125 sq. yards in question. Despite issue of this letter, complainant has not made the balance payment and as such certainly fault lays with complainant in not making balance payment. Though it is contended that OP adopted unfair trade practice by not developing the project in question, but that submission of counsel for complainant has no force because after going through Clause-6 of relied upon agreement Ex.C-4, it is made out that as per disclosure made to complainant, in case flat/plot going to be sold to complainant, for any technical reason, does not gets approval of the authorities, then allottee will be entitled for return of the earnest amount 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 complainant booked the plot knowing fully well that requisite sanctions yet to be obtained and as such OP committed no fraud with complainant by way of receiving the amounts in question, more so when complainant himself did not abide by terms of the agreement by sticking to the payment plan schedule.

9.             Counsel for complainant vehemently placed reliance on composite decision dated 31.10.2017 of Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh delivered in CC No.187, 368 and 537 of 2017 titled as Rajesh Bhambri Vs. M/s. Bajwa Developers Ltd. and others for arguing that refund of the deposited amounts should be with interest @ 12% per annum from the dates of deposit till realisation. That submission of counsel for complainant has no force for purposes of this case, more so when complainant has deposited an amount of Rs.4,84,375/-  out of total sale consideration of Rs.19,37,500/-. Complainant has deposited as such 25% of the sale consideration amount and as such it is a case in which complainant not sticked to the payment schedule laid down in agreement relied upon by the parties.  In view of this non sticking to the payment schedule plan virtually by complainant, he is entitled for refund of the paid amount with interest @ 12% per annum from the date of first demand put forth by way of filing of this complaint only. Hon’ble State Commission in the above cited case relied upon Rule 17 framed under Punjab Apartment and Property Regulation Act, 1995 for allowing interest @ 12% per annum with effect from the dates of deposits, but in the present case before us, rule applicable is contained in Section 12 of above said Act. Rule 17 has application in cases governed by Section 6 (1) of Punjab Apartment and Property Regulation Act, 1995. That Section 6 (1) of Punjab Apartment and Property Regulation Act, 1995 provides that a promoter intending to construct a building apartment before acceptance of any money as advance payment or deposit, will not accept more than 25% of the sale price and thereafter will enter into written agreement for sale with each of the persons, who are to take possession of apartments/plots. However, Section 12 of Punjab Apartment and Property Regulation Act, 1995 provides that if the promoter fails to give possession in accordance with terms of agreement for reasons beyond his control and of his agents by specified date or further agreed date, then the promoter shall be liable on demand, but without prejudice to any other remedy to which he may be liable, to refund the amounts already received by him in respect of that plot or apartment with simple interest at the rate as may be determined by competent authority from the date the promoter received the sums till the date the amounts and interest thereon is refunded. Refund in this case sought for the first time by filing complaint and before that no notice for refund was issued, even though OP issued notice to complainant for depositing the balance installments and as such in view of ratio of case of Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. (supra) it is fit and appropriate to allow interest @ 12% per annum from the date of filing of complaint till payment because the same will be reasonable, proper, equitable and just.

10.            Complainant entitled for refund of the deposited amount, more so when he is unable to get possession of the plot because provisions of Sections 64 and 65 of Indian Contract Act lays that if the agreement is void or voidable at the option of one of the party, then the person seeking said agreement as void or voidable, liable to refund the received benefits under the agreement, sought to be declared as void or voidable. In view of these provisions of Section 64 and 65 of Indian Contract Act also, OP cannot retain the received amount because in case it is so ordered, then it will amount to giving benefit to OP to enrich himself in unjust manner, which is not legally permissible at all. In view of fault committed by complainant, his entitlement for interest virtually does not remain, but in view of the fact that OP has not returned back the amount received by it even after filing of the complaint, entitlement of complainant for interest becomes with effect from the date of filing of complaint.

11.           Complainant certainly is consumer of OP within meaning of Section 2 (1) (d) of CPA because he availed services of OP for purchase of plot 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.4,84,375/- 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 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, 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 OP 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 OP to refund the received amount of Rs.4,84,375/- (Rs.Four Lakhs Eighty Four Thousand Three Hundred and Seventy Five only) with interest @ 12% per annum from the date filing of complaint namely 06.12.2017 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  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. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

September 12, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                       (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member