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

Consumer Complaint No.586 of 2019

                                                Date of institution:  24.04.2019                                             Date of decision   :  17.12.2019

Sukhwinder Singh son of Shri Daulat Singh, resident of Majara Dhingaria, Tehsil Garhshankar, District Hoshiarpur now at 91-39, 111 Street Apartment, Second Floor, Richmond Hill, New York through his GPA – Shri Harnek Singh son of Gurdial Singh, resident of Ispur, Makhsuspur, District Hoshiarpur, Punjab.

…….Complainant

Versus

M/s. Bajwa Developers Ltd. through its Managing Director, Shri Jarnail Singh Bajwa, having its registered 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 Jatinder Pal Singh, counsel for complainant.

                Shri Amit Sharma, counsel for OP.

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

Order

                Complainant through his attorney Shri Harnek Singh filed the complaint by claiming that he applied for purchase of one BHK BR No. 1001 having 450 sq. ft. area for total sale consideration of Rs.12,00,150/-.  Agreement dated 04.05.2011 was executed by authorised signatory of OP and thereafter complainant deposited Rs.10,000/- as advance, but Rs.3.00 lakhs as earnest money on 12.04,2011. Amount of Rs.1,80,000/- was paid through cheque dated 05.10.2011, but Rs.3,55,000/- in cash on 07.09.2012. Rs.2,84,000/- more paid by way of adjustment of price of BR No.1067, which earlier was deposited through cheque/receipt dated 05.10.2011. It is claimed that OP has received Rs.11,29,000/- from complainant, out of total sale consideration of Rs.12.00 lakhs. Agreement was executed by OP in violation of provisions of PAPRA Act 1995. Though as per oral assurance of OP, construction of apartment was to be completed in span of two years from the date of signing of agreement of sale, but possession not handed over till date. Rather assurance for delivery of possession uptill June 2013 was made by OP. No development activity like that of laying of roads, sewerage or street lights etc. carried by OP on the spot and as such by claiming that OP adopted unfair trade practice, this complaint filed for seeking refund of deposited amount of Rs.11,29,000/- with interest @ 9% per annum from the dates of payment till realisation.  Compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.25,000/- more claimed because despite service of legal notice dated 13.03.2018 no reply submitted by OP.

2.             OP through reply claimed as if the contract is void ab-initio. Flat applied by complainant for allotment was meant for economically weaker sections of the society. Complainant himself represented OP as if he belongs to economically weaker section of the society, knowing fully well that he belongs to affluent section of the society. Complainant was supposed to submit income certificate from competent authority to the effect that his income from all sources does not exceed Rs.3.00 lakhs per annum. Said certificate of income never supplied by complainant as per requirements of Clause 7 of the agreement. Even domicile certificate not submitted and it is claimed that complainant is not a consumer, due to which this Forum has no jurisdiction. Flat was sold at subsidized price i.e. 25% below the normal price on which flats are sold. OP was performing delegated functions of allotment of flats under economically weaker section category scheme in view of Section 5 (9) of PAPRA Act, 1995. Complaint is filed beyond period of three years and as such same barred by limitation also. Harnek Singh through whom complaint filed is not fully conversant with the facts of the case and even he was not present at the time of execution of agreement. In the master plan of 2009, GMADA reserved an area of Sector 74-A, Mohali as area for allotment of flats/plots to the members of economically weaker sections of the society.  OP was required to reserve an area equivalent to 5% of their total project area for allotment of flats/plots to the members of economically weaker sections of the society. Complainant does not fulfill the eligibility conditions for allotment of flat to economically weaker sections of the society. It was complainant who visited office of OP by showing interest to purchase one BHK flat of 450 sq. yards situate in Sector 74-A for total sale consideration of Rs.12,00,150/-. OP acknowledges as if amount of Rs.3.00 lakhs was paid by complainant on 12.04.2011; amount of Rs.2,84,000/-  on 31.07.2013; Rs.1,80,000/- on 05.07.2011 and Rs.3,55,000/- on 07.09.2012. By denying other averments of the complaint, prayer made for dismissal of the complaint.

3.             As per latest instructions of Hon’ble State Commission, parties need not be called upon to produce evidence, but the submitted affidavits and the self attested copies of documents can be considered for deciding the complaint and as such on assertion of counsel for the parties that no more documents to be filed except the one which have already been produced, arguments were heard and file scanned.

4.             From pleadings of the parties it is made out that OP has acknowledged as if amount of Rs.11,19,000/- was received by him from complainant. Dispute remains regarding payment of Rs.10,000/- by complainant to OP. Endorsement of payment of Rs.10,000/- by complainant to OP exists in the schedule of payments received by OP and as such certainly complainant able to establish as if he deposited Rs.11,29,000/- with OPs on the dates referred above. As OP has acknowledged in its written reply having received Rs.11,19,000/- and as such there is no necessity for complainant to produce more record for proving about payment  of Rs.11,29,000/- by him to OP. OP being a limited company bound to maintain its accounts, which as per provisions of Company Law have to be got audited from its auditors and as such if any less amount received by OP, then OP could have got produced its accounts for showing that amount of Rs.10,000/- was not received by it. No such record produced by OP and nor any effort in that respect made and as such by drawing adverse inference against OP for withholding best available evidence, it is held that actually complainant has deposited Rs.11,29,000/- with OP on the above referred dates.

5.             Though entire sale consideration amount of the flat was Rs.12,00,150/-, but complainant paid Rs.11,29,000/- and as such it is vehemently contended by counsel for OP that default had been committed by complainant in not paying whole amount, due to which earnest money liable to be forfeited in view of Clause-3 of agreement. That submission of counsel for OP has no force because requisite sanctions from GMADA for this project of Sector 74-A, 117 had been obtained by OP on 19.05.2014 is a fact proved in other case 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, as referred above and as such virtually amounts in question accepted by OP 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 OP, due to which they are liable for refund of 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.             OP claims through written reply as well as affidavit Ex.OP-1/1 of Baldev Singh its Director 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-2, 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-2, 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 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 is virtually seeking unjust enrichment. OP 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-2 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 OP not entitled to retain amount of Rs.11,29,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in agreement Ex.C-2.

9.            Complainant certainly is consumer of OP within meaning of Section 2 (1) (d) of CPA because he 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.11,29,000/- 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 distinct than those of the case before us.

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 OP 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 OP to refund the received amount of Rs.11,29,000/- (Rs. Eleven  Lakhs Twenty Nine 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  OP.  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

December 17, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member