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

Consumer Complaint No.244 of 2018

                                                Date of institution:  23.02.2018                                             Date of decision   :  13.05.2019

Gubinderjit Singh son of Sh. Desa Singh, resident of House No.453, Sector 46-A, Chandigarh through attorney Harminder Singh Dhillon son of Shri Jaswant Singh, Village Devi Nagar, Tehsil Rajpura, District Patiala.

…….Complainant

Versus

1.     M/s. Bajwa Developers Ltd. Regd. Office Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali, SAS Nagar through its Managing Director.

2.     J.S. Bajwa @ Jarnail Singh Bajwa son of Bishan Singh, Managing Director, M/s. Bajwa Developers Ltd. Regd. Office Sunny Enclave, Desu Majra, Tehsil Kharar, District Mohali, SAS Nagar.

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri S.S. Tiwana, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

               Complainant, resident of Holland through his confident got booked one BHK BR No.388/1388 having unit area of 450 sq. ft.  with OPs because he was having no accommodation to live at Mohali. Rs.2.00 lakhs were paid on 16.04.2011 and 18.04.2011. As per payment schedule, complainant was to pay 25% of the total price and thereafter another 15% was to be deposited within four months. Total payable amount was Rs.12,52,000/-. Last installment was to be paid by complainant for paying the entire sale consideration of amount of Rs.12,50,100/- on 17.12.2012. It is claimed that agreement of sale was executed on 17.06.2011, but amount of Rs.1,12,500/- deposited on 03.05.2011. An amount of Rs.1,87,800/- was deposited on 12.08.2011, but another amount of Rs.1,87,800/- on 17.08.2012 and further Rs.1.00 lakh deposited on 01.09.2012 through two separate cheques. OPs cleverly did not make any promise for delivery of possession by specified date. It is claimed that OP No.1 has not obtained permissions from any competent authority for start of the project and as such question of delivery of possession does not arise. Assurances were given by OPs for getting permissions from competent authorities like PUDA and GMADA/Municipal Council. As per provisions of Punjab Apartment and Property Regulation Act, 1995 (hereinafter referred as ‘PAPRA Act’), OPs were obliged not to offer for sale, any flat or apartment untill necessary permissions are obtained but they in violation of those provisions, got amount of Rs.7,88,100/- deposited from complainant on the dates mentioned below:

                By claiming that OPs adopted unfair trade practice, refund of the principal amount of Rs.7,88,100/- alongwith interest amount of Rs.8,66,550/- claimed alongwith compensation for mental agony and harassment of Rs.2.00 lakhs and litigation expenses of Rs.55,000/-, but with interest @ 15% per annum with quarterly rests.  Earlier complaint filed by the complainant was withdrawn due to technical defects but liberty was granted to complainant to file fresh complaint and that is why this complaint.

2.             In reply filed by OPs, it is claimed that  complaint has not been filed by authorised person and moreover the facts of the case are exclusively in the knowledge of Gubinderjit Singh and not the authorised person.. It was complainant himself who approached OPs for expressing desire to purchase one BHK flat in Sector 74-A, Mohali. At the time of booking of flat, complainant was made aware that flat chosen by him is meant for economically weaker sections of the society and as such he will have to submit certificate obtained from competent authorities certifying that his income from all sources does not exceed Rs.3.00 lakhs per annum. Even complainant was required to submit certificate showing his domicile of Punjab State. Besides, affidavit was also required to be submitted by complainant for showing that he or his spouse or dependent children do not own any other house/flat/plot in the vicinity of Mohali, Chandigarh and Panchkula. Complainant by agreeing to Clause-7 of the agreement paid Rs.2.00 lakhs as earnest amount. Admittedly total sale consideration agreed to be payable was Rs.12,50,000/-. It is also admitted that last installment was to be paid on 01.09.2012, but complainant has deposited Rs.7,88,100/- uptill 01.09.2012. Possession of the flat was to be handed over after receipt of entire sale consideration amount, but complainant himself has not abided by terms of agreement, owing to non submission of requisite certificates/affidavit, as referred above. It is claimed that this Forum has no jurisdiction, more so when relationship of consumer and service provider do not exist between the parties. Complainant entered into agreement fraudulently by suppressing material facts because he being affluent member of the society availed booking of flat meant for economically weaker sections of the society. Even Govt. of Punjab, Department of Housing issued notification No.21/4/2014-1HgII/1891 which lays eligibility criteria for allotment of apartment/plot for economically weaker sections of the society, as referred above. No violation of PAPRA Act and the rules framed thereunder committed by OPs. Complainant at best has remedy available with him to approach the authorities under PAPRA Act as authorities under the PAPRA Act has exclusive jurisdiction as per Section 35 of the said Act and as such this Forum has no jurisdiction. Allegations of cheating or of providing deficient services and all other allegations denied one by one each, but payment of Rs.7,88,100/- is admitted.

3.             Counsel for the complainant tendered in evidence affidavit Ex.CW-1/1 of Harminder Singh Dhillon, Authorised representative of complainant alongwith document Ex.C-1 to Ex.C-3 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.             Even though complainant may have filed earlier complaint No.981 of 2017, but despite that perusal of order dated 05.12.2017 (Ex.C-3) shows that complainant was given liberty to file fresh complaint for redressal of grievances because earlier complaint was suffering from some technical defects. So filing of this complaint not barred just because of filing of earlier complaint.

6.             Contents of affidavit Ex.CW-1/1 alongwith that of the written statement and affidavit Ex.OP-1/1 of Shri Baldev Singh, Director of OPs establishes that agreement of sale Ex.C-1 was arrived at between parties as per which complainant purchased one BHK BR No.388/1388 having area of 450 sq. ft. approximately for sale consideration of Rs.12,50,100/-. Endorsements regarding receipt of amount made on this agreement itself. Perusal of these endorsements reveals that complainant deposited the amounts mentioned in the tabular form above. Even OPs in their written statement and affidavit Ex.OP-1/1 have admitted about receipt of Rs.7,88,100/- from complainant. OPs have not carried out construction on the spot and as such the amounts virtually accepted by OPs without fulfilling obligation of handing over of possession on completing the construction.

7.             After going through agreement Ex.C-1, it is made out that complainant was to pay entire sale consideration amount in 5 installments in addition to payment of earnest amount of Rs.3.13 lakhs. However, complainant has paid Rs.7,88,100/- only and as such it is vehemently contended by counsel for OPs that fault lay with complainant in not sticking to payment plan schedule. Even if such fault may be there on part of complainant, despite that OPs have not obtained requisite sanctions/approvals for start of the project in question. Plea taken in the complaint and affidavit Ex.CW-1/1 of the complainant in this respect is not specifically denied through affidavit Ex.OP-1/1 and as such it is obvious that fault lay with OPs in not getting approvals from concerned authorities. Being so, complainant entitled for refund of deposited amount with interest @ 12% per annum from the dates of deposits till realisation in view of 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. 

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.7,88,100/- 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.7,88,100/- 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 distinguishable 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.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.7,88,100/- (Rs. Seven Lakhs Eighty Eight  Thousand One 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

May 13, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member