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

Consumer Complaint No.952 of 2018

        Date of institution:  11.09.2018                 Date of decision   :  05.03.2019

 

Sanjeev Verma son of Late Shri Bhim Sain Verma, resident of 212A, Saini Vihar, Phase-1, Baltana.

 

…….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

 

 

                OPs allotted and sold one BHK BR No.1154 in Sector 74A, 117, Mohali to complainant for total sale consideration of Rs.12,00,100/-, out of which Rs.1,20,000/- was paid by complainant to OPs at the time of entering into agreement of sale dated 16.06.2011. Thereafter untill 01.09.2012 amount of Rs.6,88,100/- in all has been paid by complainant to OPs. Possession of the flat has not been handed over to complainant till date and nor any notice for delivery of possession served on complainant by OPs. Flat in question was purchased by complainant with motive of having his own house for residential purpose. Details of paid amounts given as under:

Sr. No. Date Amount (Rs.)

1. 14.04.2011 2,00,000.00

2. 26.05.2011 1,12,500.00

3. 01.09.2012 1,87,800.00

4. 03.12.2011 (erroneously mentioned as 03.12.2012) 1,87,800.00

Total: 6,88,100.00

 

Complainant casually visited the site office for knowing about status of the project. Officials of OPs disclosed complainant that agreed site yet to be developed and was under construction stage. OPs failed to provide information to complainant regarding date of delivery of possession despite being contacted. So this complaint filed after serving legal notice dated 14.03.2018 for claiming refund of paid amount of Rs.6,88,100/- with interest @ 18% per annum and compensation for mental agony and harassment of Rs.1,00,000/- and Rs.35,000/- as litigation expenses. 

2. In reply submitted by OPs, it is pleaded inter alia  as if relationship of consumer and service provider do not exist between parties; contract is void abinito because the flat was allotable to members of economically weaker sections of the society and that complaint is barred by limitation because last transaction took place on 01.09.2012. In view of Article 24 of Indian Limitation Act, 1963, period for filing complaint stood expired on 01.09.2015. Contract between parties had already been rescinded due to efflux of time because balance payment not made by complainant within stipulated time mentioned in the agreement of sale. Complainant is not consumer within meaning of Section 2 (1) (d) of Consumer Protection Act. Consent of OPs in entering into agreement was obtained by complainant by misrepresentation that he has income from all sources not exceeding Rs.3.00 lakhs. So contract in question alleged to be void abinitio. Admittedly one BHK flat in Sector 74-A, 117, Mohali having area of 450 sq. yards was chosen by complainant subject to production of income certificate; domicile certificate and affidavit to the effect that neither complainant and nor his spouse or dependent children own any other house/flat/plot in the vicinity of Mohali, Chandigarh and Panchkula. Compliance of condition No.7 of terms and conditions of agreement has not been done by complainant. Total subsidized sale consideration of flat agreed to be sold through agreement dated 16.06.2011 was Rs.12,00,100/- i.e. 25% below normal price. Admittedly amount of Rs.6,88,100/- has been received by OPs from complainant, but complainant failed to abide by payment schedule and terms of Clause-7 of agreement and as such by claiming that notice served by complainant through counsel is illegal, prayer made for dismissal of the complaint, more so when possession was to be delivered only on payment of entire sale consideration. It is claimed that complainant is guilty of cheating and defrauding OPs because of suppression of the fact that he belongs to affluent section of the society. Other averments of the complaint denied. 

3. Both the parties submitted self attested documents and affidavits in support of their claim. As per latest instructions received from Hon’ble State Consumer Disputes Redressal Commission Punjab there is no need to record evidence and as such after hearing arguments of counsel for parties and going through produced record, this complaint is decided. 

4. Admission of OPs in written reply itself establishes that agreement of sale dated 16.06.2011 was arrived at in pursuance of which amount of Rs.6,88,100/- was paid by complainant to OPs on different dates. Endorsements on the back of this agreement shows as if amount of Rs.2,00,000/-  deposited by complainant with OPs on 14.04.2011; Rs.1,12,500/- on 25.05.2011; Rs.1,87,800/- on 03.12.2011 and Rs.1,87,800/- more on 01.09.2012. Receipt Ex.C-2 shows payment of one of amount of Rs.1,87,800/- on 03.12.2011. So dispute regarding receipt of Rs.6,88,100/- by OPs from complainant is not there. 

5. After going through copy of agreement of sale, it is made out as if after paying earnest amount of Rs.3,13,000/- on 16.06.2011, balance amount was payable in 5 equal installments of Rs.1,87,800/- each on 16.10.2011; 16.02.2012; 16.06.2012; 16.10.2012 and 16.12.2012. However, complainant has not paid entire amount 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 fault lay with OPs in not starting the project or completing the same and handing over possession for more than 7 years after execution of agreement of sale. Rather now OPs are claiming as if agreement is void abinito and as such OPs are denying right of complainant to get possession. That amounts to adoption of unfair trade practice by OPs and as such 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. OPs claim through written reply 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 of sale, 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 agreement, 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. 

 

7. 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. 

 

8. Even if assuming for arguments sake that consent of OPs in entering into agreement 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 Sections 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.6,88,100/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement. 

9. 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.6,88,100/- with interest.

10. 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.

11. 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.

12. 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. 

13. As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.6,88,100/- (Rs. Six 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.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

March 05, 2019.

(G.K. Dhir)

President

 

 

 

(Mrs. Natasha Chopra)

Member