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

Consumer Complaint No.03 of 2019

                                                Date of institution:  02.01.2019                                             Date of decision   :  13.05.2019

Ms. Ravneet Gill daughter of Shri Jaspal Singh Gill, resident of House No.1010, Phase-4, Mohali, Punjab.

…….Complainant

Versus

M/s. Bajwa Developers Ltd. Regd. (through M.D. Jarnail Singh Bajwa), Sunny Business Centre, 5^th Floor, Sector 125, Kharar 140301.

Email ID: jsbajwadevelopers#yahoo.com.

                                                            ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Abhishek Gupta, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

                Complainant purchased one BHK BR No.1819 in Sector 74A, Mohali from OP for total sale consideration of Rs.12.00 lakhs. An amount of Rs.4,90,000/-, details of which given in the below table, was deposited by complainant with OP:

                Possession of that flat has not been received by complainant at all despite the fact that booking of the same took place in 2011. Complainant sent letter dated 06.12.2018 for calling upon OP to return the amount, but OP has not responded to the said letter and that is why this complaint filed for seeking refund of the deposited amount with interest @ 12% per annum from the dates of deposits till realisation. Compensation for unfair trade practice of Rs.50,000/- and for mental harassment and agony of Rs.1,00,000/- and litigation cost of Rs.30,000/- more claimed.

2.             In reply filed by OP, it is claimed that agreement is void abinito because flat meant for economically weaker sections of the society was applied by the complainant, despite the fact that she belongs to affluent section of the society. Even income certificate obtained from competent authority for showing that income of complainant does not exceed Rs.3.00 lakhs per annum was required to be submitted, but the same has not been submitted in compliance with Clause-7 of agreement of sale. Complaint alleged to be beyond limitation because last transaction in this case took place on 18.01.2012. Complaint has been filed after expiry of three years period envisaged by Article 24 of the Indian Limitation Act, 1963. This complaint being filed in 2019 is barred by limitation.  Moreover, this Forum alleged to be having no jurisdiction because relationship of consumer and service provider do not exist. The flat was sold at subsidized price i.e. 25% below normal price to the members of economically weaker sections of the society. Admittedly agreement of purchase was arrived at and total amount of Rs.12.00 lakhs was payable, out of which Rs. 2.00 lakhs was paid as earnest amount on 20.04.2011. OP has entered into three agreements with Govt. of Punjab for development of Sectors 123, 124 and 125. As per one of the stipulations in those agreements, OP was required to reserve an area equivalent to 5% of project area for allotment of flats/plots to the members of economically weaker sections of the society. Keeping in view this clause, flats in Sector 74-A, Mohali were allotable only to the members of economically weaker sections of the society provided they comply with stipulation No.7 of the agreement. Complainant did not turn up for a long period of more than 5 years for paying balance sale consideration amount or for submitting requisite certificates/affidavits as per Clause-7 of the agreement and as such it is claimed that complainant is not entitled to any relief, more so when she is guilty of blocking flat of OP for continuous period of seven years. Moreover, contract arrived at between the parties rescinded by afflux of time because last transaction took place on 18.01.2012.  Prayer made for dismissal of the complaint.

3.             Keeping in view the latest instructions issued by Hon’ble State Consumer Disputes Redressal Commission Punjab, parties were required to submit their affidavits and documents and accordingly the parties have submitted affidavits and documents and have opted not to submit written arguments. Oral arguments heard and records gone through.

4.             Admittedly agreement of sale Ex.C-1 was arrived at between parties as per which one BHK BR No.1819 in Sunny Apartments Village F21, Mohali Sector 74-A, 117 was booked by complainant by agreeing to pay total sale consideration of Rs.12,00,150/-. Out of this, complainant paid an amount of Rs.4,90,000/-, the details of which given in the tabular form referred above. As such complainant able to establish as if she deposited Rs.4,90,000/- in all with the OP. This amount not denied by OP in the submitted reply or in the affidavit Ex.OP-1/1 of Baldev Singh Bajwa, Director of OP.

5.             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.3.00 lakhs. However, complainant has paid Rs.4,90,000/- only and as such it is vehemently contended by counsel for OP 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 OP has not obtained requisite sanctions/approvals for start of the project in question. 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. 

6.             OP claim through written reply as well as affidavit Ex.OP-1/1 of Baldev Singh, Director of OP 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-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 her 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.

7.             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 itself is also at fault in not starting the construction.

8.             Even if assuming for arguments sake that consent of OP in entering into agreement Ex.C-1 was obtained by complainant by misrepresentation of her 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.4,90,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in agreement Ex.C-1.

9.            Complainant certainly is consumer of OP within meaning of Section 2 (1) (d) of CPA because she availed services of OP 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 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.4,90,000/- with interest.

10.            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.

11.            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.

12.            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.

13.            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.

14.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.4,90,000/- (Rs. Four 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  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