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

Consumer Complaint No.745 of 2018

                                                Date of institution:  18.07.2018                                             Date of decision   :  27.02.2019

Kewal Krishan Bhatia son of Shri Mohan Lal Bhatia, resident of 1080, Near Government Girls School, Jalalabad (W), District Ferozepur 152024 (Punjab).,

…….Complainant

Versus

1.     M/s.  Bajwa Developers Ltd. through its Managing Director J.S. Bajwa, Office Sunny Enclave, Desu Majra, Tehsil Kharar, Mohali (Punjab) 140301.

2.     Shri J.S. Bajwa, Managing Director, M/s. Bajwa Developers Ltd., Regd. Office, Sunny Enclave, Desu Majra, Tehsil Kharar, Mohali (Punjab) 140301.

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Gaurav Gupta, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

               Complainant on being allured through advertisements and assurance given by OPs got booked one BHK BR No.786 apartment situate at F-21, Mohali Sector 74-A, 117 by paying booking amount of Rs.3,50,000/-. Buyers agreement dated 19.05.2011 was arrived at, as per which total price of the flat was Rs.12.00 lakhs. On demand of OPs, an amount of Rs.1,30,000/- more paid by complainant on 12.10.2011. On approach by complainant to OPs, time for making payment of next installments was extended to 01.08.2013, then to 30.10.2013 and further to 30.06.2014 because OPs were unable to get approvals from the concerned authorities.  Physical possession of the flat was to be handed over by 19.11.2012. Complainant claims to have remained ready to pay due installments, but OPs were not able to get approvals from GMADA. When complainant contacted OPs in March, 2018 for getting delivery of possession of the flat, then he got information as if approvals for the project could not be obtained from the Governmental authorities. False and baseless allotment letter dated 02.04.2018 was issued in favour of complainant. Information under Right to Information Act was collected by complainant. OPs failed to handover physical possession of the plot even after 7 years of acceptance of above referred amounts and that is why by claiming violation of provisions of PAPRA Act by OPs, this complaint filed for seeking refund of the deposited amount of Rs.4,80,000/- with interest @ 15% from the dates of deposits till realisation. Compensation for mental harassment and agony of Rs.2.00 lakhs and litigation expenses of Rs.45,000/- more claimed.

2.             In reply submitted by OPs, it is claimed that relationship of consumer and service provider does not exist between parties because complainant failed to submit income certificate as per requirement of allotment of flat in question to economically weaker sections of the society. Even complainant failed to submit domicile certificate. Flat was sold at subsidized price as per Section 5 (9) of Punjab Apartments & Property Regulation Act, 1995. Complaint also alleged to be barred by limitation in view of Section 24-A of Consumer Protection Act because last transaction for extension of time took place on 30.06.2014, but this complaint filed in 2018 i.e. beyond period of more than three years of expiry of limitation. This Forum alleged to be having no jurisdiction. Admittedly agreement was arrived at, but it is claimed that complainant was made aware regarding requirement of submission of certificate of his income not exceeding Rs.3.00 lakhs per annum from all sources etc.  Admittedly, agreement in question was arrived at. Compliance of condition No.7 of agreement not made by complainant himself, despite issue of letter for calling upon him to submit the requisite certificate. As complainant does not belong to economically weaker section of the society, but he entered into agreement for purchase of flat fraudulently and as such due to misuse of concession, relationship of consumer and service provider not alleged to be existing. Reference to Notification No.21/4/2014-1HgI/1891 issued by Govt. of Punjab, Department of Housing also made for determining the eligibility criteria for allotment of apartments/plots to economically weaker sections of the society. Other averments of the complaint denied.

3.       Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document 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, Director and thereafter closed evidence.

4.             Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.

5.             Dispute regarding payment of Rs.4,80,000/- by complainant to OPs does not exist, more so when endorsements regarding receipt of these amounts made on back of agreement of sale Ex.C-1. Those endorsements bear signatures of Shri J.S. Bajwa and even stamp of Bajwa Developers. So certainly complainant able to establish as if he deposited amount of Rs.4,80,000/- with OPs in consideration of getting one BHK BR No.786.

6.             After going through agreement Ex.C-1, it is made out that after payment of earnest amount of Rs.3.00 lakhs on 19.05.2011, balance amount was payable in 5 equal installments of Rs.1,80,000/- each on 19.09.2011; 19.01.2012; 19.05.2012; 19.09.2012 and 19.11.2012. However, these amounts have not been paid and as such it is vehemently contended by counsel for OPs that fault lay with complainant in not sticking to payment plan. Even if such fault may be there, despite that factum of extension of time for payment to 30.10.2013 or 30.06.2014 itself establishes that OPs condoned the act of delayed payments. Endorsements of extension of time referred above made on second page of agreement Ex.C-1 itself.

7.             Copy of applications filed with Director, Local Govt. Punjab as well as with the Executive Officer, Municipal Council, Kharar produced as Ex.C-3 and Ex.C-4 alongwith copy of resolution dated 05.03.2015 of Municipal Council, Kharar for showing that approval for the development of colony in question had been sought earlier by OPs, but later on on the request of OPs approval was not granted. So withdrawal of approval from the project was sought by OPs themselves. It is on account of this that OPs could not start construction of the project in question resulting in illegal retention of deposited amount by complainant with OPs. Certainly OPs accepted payments without obtaining sanctions requisite for start of project in question in which apartment for complainant was to be constructed.
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.4,80,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement.

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.4,80,000/- 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 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.

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.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.4,80,000/- (Rs. Four Lakhs Eighty Thousand only) with interest @ 12% per annum from the dates of deposits 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  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

February 27, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member