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

Consumer Complaint No.780 of 2018

                                                Date of institution:  30.07.2018                                             Date of decision   :  11.06.2019

Dilbag Singh aged 63 years son of Gian Singh, resident of village Lakhnaur, P.O. Sahauran, Tehsil Kharar, District SAS Nagar (Mohali), Punjab.

…….Complainant

Versus

M/s. Bajwa Developers Ltd., registered office, Sunny Enclave, Desu Majra, Kharar 140301, District SAS Nagar (Mohali), Punjab, through its Managing Director Shri Jarnail Singh Bajwa son of Bishan Singh, Phone No.0160-3299545, PBX 5009525-526, Fax 0160-5009524.

                                                            ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Gurdial Singh, counsel for complainant.

                Shri Amit Sharma, counsel for OP.

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

Order

               Complainant, desirous of having his own house/apartment for use by family members, came in contact with OP after going through the advertisement for purchase of apartment No.1632 having covered area of 450 sq. ft. in sector 74-A, 117, Mohali. Complainant was disclosed on 02.11.2011 itself as if OP has got all necessary permissions and licenses from concerned departments regarding this residential flat. Complainant was registered as member of the scheme on payment of Rs.10,000/- in cash on 02.11.2011 itself. Total sale consideration of flat was Rs.12,00,150/-. Booked apartment of the complainant was earlier sold to someone else, but that person backed out and thereafter it was given to complainant after receipt of Rs.3.00 lakhs in cash on 02.11.2011 itself by OP. This amount was claimed by OP because the same was to be paid to earlier purchaser. Complainant paid another amount of Rs.1.00 lakh through cheque on 02.11.2011. Sale agreement dated 25.11.2011 was arrived at between the parties. Construction of flat was to be completed within 18 months w.e.f. 01.05.2011 i.e. upto 01.11.2012. Actual date for delivery of possession was fixed as 30.11.2012. An amount of Rs.68,000/- was paid by complainant to OP on 23.11.2011 through cheque and thereafter additional amount of Rs.12,000/- paid in cash on that date itself. Rs.1.00 lakh more were paid through cheque on 09.07.2012. Encashment of that cheque had been got done by OP. Total sum of Rs.5,90,000/- has been paid by complainant to OP upto 08.09.2012. Complainant after visiting proposed site in November, 2012 and December, 2012 found as if no development has been carried on the spot. Rather no construction activity was started by OP till date. Complainant had been making inquiries regarding construction of apartment from officials of OP on telephone as well as personally. No activity of development or of construction was started/completed and that is why balance installments were not paid by complainant. Sole intention of OP was to grab money of purchasers and harass them. Flat was purchased by complainant because of lack of transportation services and higher educational facilities in the village. It is claimed that OP has not got necessary sanctions from concerned authorities at the time of floating of project and collecting money from prospective buyers and as such by pleading violation of provisions of Punjab Apartment and Property Regulation Act, 1995 (hereinafter to be referred as ‘PAPRA Act’), this complaint filed for seeking refund of paid amount of Rs.5,90,000/- with interest @ 18%. Compensation for physical and mental harassment of Rs.1,50,000/-, but litigation expenses of
Rs.25,000/- more claimed.

2.             In reply filed by OPs, it is pleaded inter alia as if relationship of consumer and service provider do not exist because the flat meant for economically weaker sections of the society has been got booked by the complainant, despite the fact that he belongs to affluent section of the society. As per requirements, annual income of the allottee from all sources must not exceed Rs.3 lakhs. Despite this complainant has not produced income certificate issued by the competent authority. As the flat was sold at subsidized price in view of Section 5 (9) of PAPRA Act and as such relationship of consumer and service provider do not exist. Moreover it is claimed that this Forum has no jurisdiction because of sale of flat at concessional price. Aggregate price of the flat was assessed at Rs.12.00 lakhs i.e. 25% below the price fixed for such flat for allotment to general category.  Complaint being filed after expiry of limitation period is barred by limitation in view of Articles 54 and 24 of Limitation Act. It is claimed that period of limitation expired on 08.09.2015 because last transaction took place in this case on 08.09.2012. Contract stood rescinded due to breach of obligation of non payment of balance sale consideration by the complainant as well as due to non submission of income/domicile certificates and affidavit by the complainant to the effect that either he nor his spouse or his dependant children own any other flat/plot/house in the vicinity of Mohali, Chandigarh and Panchkula. It is claimed that OP never issued any advertisement for the purpose of inviting applications for allotment of flat in question. In Master Plan of 2009 prepared by GMADA, whole of Sector 74-A was reserved for allotment of flats/plots to economically weaker sections of the society. Complainant after visiting office of the OP expressed his interest in one BHK flat at Sunny Apartments F-21, Sector 74-A. The flat agreed to be sold at subsidized price of Rs.12.00 lakhs. Complainant was made aware of all the terms and conditions on which economically weaker section category flat allotted to him. Clause No.7 specifically incorporated in the agreement in this respect. Payment of Rs.68,000/- made on 23.11.2011 by the complainant to the OP is not denied. Even receipts of amount of Rs.12,000/- and Rs.1.00  lakh not denied.  Though complainant was supposed to pay Rs.12.00 lakhs, but he as per his own admission just paid Rs.5,90,000/- and as such it is claimed that complainant being in arrears of Rs.6,10,000/- not entitled for flat in question, in view of Clause -2 of agreement of sale. Reference to clauses 2.1 to 2.4 of notification No.21/4/2014-IHgII/1891 specifically made  for disclosing eligibility criteria for allotment of apartment/plot for economically weaker sections of society. It is claimed that OP possesses all the necessary permissions and sanctions from the competent authorities. On 12.07.2017 letter was written to complainant for calling upon him to submit income certificate issued by competent authority, but that certificate has not been submitted and nor complainant submitted his  option with respect to any other flat of equivalent valuation  in other schemes of the OP. It is claimed that complainant not entitled for refund of any amount and as such prayer made for dismissal of the complaint.

3.             In order to prove his case, the complainant tendered in evidence his affidavit Ex.CW-1/A alongwith documents Ex.C-1 to Ex.C-10 and then 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 submitted counsel for the complainant but not by the OP. Oral arguments heard and records gone through.

5.             Admittedly agreement Ex.C-2 was arrived at between the parties as per which flat in question was to be sold by the OP to the complainant on payment of price of Rs.12.00 lakhs as per schedule of payments mentioned in clause 2 of this agreement. On the back of this agreement itself it is endorsed as if amount of Rs.5,80,000/- received from the complainant by the OP on different dates mentioned in this endorsement. Even in affidavit Ex.OP-1/1 denial of receipt of Rs.5,90,000/- by OP from complainant is not made and as such certainly complainant able to establish as if he had paid Rs.5,90,000/- to OP through above referred endorsements and one receipt, copy of which is produced as Ex C-1.

6.             Relationship of consumer and service provider certainly exist between the parties because OP agreed for sale of flat in question to complainant after acceptance of sale consideration, part of which was paid by complainant to OP and promise for making balance payment was made, but subject to completion of construction of flat and handing over of possession of same by OP to complainant. Even as per section 2 (1) (d) of Consumer Protection Act, consumer means a person who buys any goods for consideration which has been paid or promised or partly paid and partly promised etc. In this case also plot has been agreed to be purchased by complainant for consideration, part of which was paid and the balance promised to be paid in lieu of handing over of possession of the flat by OP to complainant and as such certainly complainant is consumer within meaning of Section 2 (1) (d) of Consumer Protection Act. As OP undertook to provide services of handing over possession of constructed flat and as such OP agreed to provide services to complainant within meaning of Section 2 (1) (o) of Consumer Protection Act. In such circumstances submission advanced by counsel for OP has no force that relationship of consumer and service provider do not exist between parties particularly when in similar circumstances in case titled as  Amit Baddhan versus M/s Bajwa Developers Ltd, 2018(1)CPJ 208,  it has been specifically held by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh that relationship of consumer and service provider exist, when complainant hired services of OP for consideration.

7.             Though it is the case of complainant that construction was to be completed upto 01.11.2012 and thereafter possession of apartment to be handed over upto 30.11.2012, but said condition do not exist in sale agreement Ex.C-2. Even if such condition do not exist, but despite that possession of apartment could have been handed over to complainant after completion of apartment only. However, photographs Ex.C-3 to Ex.C-10 are produced on record to establish as if no construction carried on the spot and nor any development activity by way of carving out roads or parks etc. carried on the spot. So contents of affidavit Ex.CW-1/A of complainant are correct that actually no construction carried out on the spot by the OP even till date of filing of complaint. In view of that, fault lay with OP in not fulfilling its obligations of carrying of construction activity or completing development works at the spot. For that fault of the OP complainant cannot be made to suffer, more so when requisite sanctions/approvals from Governmental authorities like GMADA not shown to be obtained by OP.  Sole assertion in affidavit Ex.OP-1/1 of Baldev Singh Bajwa not enough to establish that requisite sanctions/approvals have been obtained from the competent authorities, more so when facts in this respect denied by the complainant through his affidavit. In similar circumstances it has been held in case Amit Baddhan (ibid) that in case such sanctions are obtained, then documents in that respect must be produced on record by the builder, but in case documents not produced, then case of the complainant will be believable as if the requisite sanctions have not been obtained.  Specific reference to Para 15 of above cited case in this respect can be made. In view of this, violation of Section 5 of PAPRA Act shown to be committed by the OP.  Even OP has failed to make full and true disclosure  of name and title of land on which colony in question to be developed and OP has not given notice of 7 days for inspection to the complainant,  but it is the complainant who had been contacting OP or its official for ascertaining the extent of construction or of carried out development activity and as such violation of Section 3 of PAPRA Act  in this respect also committed by OP due to which  entitlement of complainant  for refund of entire paid amount with interest @12% per annum from the dates of deposit till payment is there because same is provided by ratio of above cited case of Amit Baddhan (ibid) and also 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 by Hon’ble Punjab State Consumer Disputes Redressal Commission. As PAPRA Act is a specific Act covering such cases and as such entitlement of complainant for higher rate of interest is not there. In case of K.A. Nagamani versus Housing Commissioner Karnataka Housing Board, 2016(3) CPJ 16, interest @ 18% per annum on deposited amount was allowed because amount was refunded after 14 years and provisions of PAPRA Act were not under interpretation in this case decided by Hon’ble Supreme Court of India. Same is the position with respect to applicability of ratio of case M/s Omaxe construction versus Smt Pummi Batra, 2017 (2) CPJ 24 (Hon’ble Rajasthan State Consumer Disputes Redressal Commission, Jaipur Bench) or of case of  Bhupinder singh versus M/s Unitech  Limited, 2016(3) CPJ 572 by Hon’ble National Consumer Disputes Redressal Commission. As due to deficient services rendered by OP in not raising construction, complainant suffered mental agony and harassment and as such he is entitled to compensation  for mental agony and harassment and to litigation expenses also,  but of reasonable amount, more so when complainant himself did not pay entire balance sale consideration amount after finding on repeated inquiries that construction not carried  on the spot by OP and nor OP undertook any developmental activity on the spot.    

8.             OP claims through written reply as well as affidavit Ex.OP-1/1 of Baldev Singh, Director 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-2, 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-2, 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 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 OP virtually is seeking unjust enrichment. OP himself 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-2 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 OP not entitled to retain amount of Rs.5,90,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in agreement Ex.C-2.

11.            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.

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 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.            No other worth mentioning point argued.

16.            As a sequel of above discussion, complaint allowed by directing OP to refund the received amount of Rs.5,90,000/-  (Rs. Five  Lakhs Ninety   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 11, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member