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

Consumer Complaint No.171 of 2019

                                                Date of institution:  11.02.2019                                             Date of decision   :  21.10.2019

Harpreet Singh Banga son of Shri Joginder Singh Banga, resident of 18, Hamida Colony, Yamuna Nagar, Haryana.

…….Complainant

Versus

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

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

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Jasminder Pal Singh, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

                Complainant got booked one BHK Flat BR No.1470 Apartment in Plot F-21, Sector 74-A, 117 having area of 450 sq. ft. with OPs in Sunny Enclave, Kharar by agreeing to pay Rs.12,52,150/- as sale consideration amount. Agreement of sale dated 11.05.2011 was arrived at. Complainant made payment of Rs.6,91,225/- on different dates. OPs kept on delaying process of delivery of possession on one pretext or the other. Details of payment made are given below:

                Complainant on casual visit to site office found that site was yet to be developed and it was not at construction stage. Though possession was assured to be delivered within 36 months from the date of agreement, but officials of OPs disclosed complainant as if house building project was on hold, even in February, 2018. OPs failed to give due information regarding progress of construction and complainant found as if construction has not been completed, but OPs and its officials have been misguiding him. OPs are not in a position to handover possession and as such, this complaint filed for refund of amount as aforesaid. OPs are retaining hard earned money of complainant and not refunding back the same despite repeated requests and as such by claiming that OPs adopted unfair trade practice, this complaint filed for seeking refund of deposited amount of Rs.6,91,225/- with interest @ 18% per annum alongwith compensation for mental agony and harassment of Rs.3.00 lakhs and litigation expenses of Rs.35,000/-.

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 24.11.2011. 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 11.05.2011. Possession of flat was delayed due to non submission of requisite certificates and the balance sale consideration by complainant. By denying each and every other averment of the complaint, prayer made for dismissal of the complaint.

3.             As per latest instructions received from Hon’ble State Consumer Disputes Redressal Commission Punjab parties to produce self attested affidavits and self attested documents and those have been produced and taken in consideration. 

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.6,91,225/- 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. OPs have not bothered to examine any witness to prove that the two endorsements of payment of Rs.1,87,800/-  each is not in hands of Directors or any other representative of OPs. Case of complainant since from issue of legal notice dated 14.03.2018 is that payment of Rs.6,91,225/- 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/-  each on 24.11.2011 and 02.02.2012 actually not received by them. Such proof not produced deliberately and as such inference is obvious that actually complainant paid Rs.6,91,225/- to OPs as claimed by him. Though entire sale consideration amount was payable in 6 installments, but complainant paid only Rs.6,91,225/- 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 and 2012, 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 the 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.6,91,225/- only proved 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.6,91,225/-. 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.6,91,225/- 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.6,91,225/- 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.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.6,91,225/- (Rs. Six  Lakhs Ninety One Thousand Two Hundred Twenty Five 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. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

October 21, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member