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

Consumer Complaint No.911 of 2017

                                                Date of institution:  30.10.2017                                              Date of decision   :  29.05.2019

Chaman Lal son of Shri Bhagwan Dass and Yashodra Devi wife of Shri Chaman Lal, both residents of House No.348, Sector 38-A, Chandigarh.

…….Complainants

Versus

M/s. S.K. Soni Builders & Promoters Pvt. Ltd. registered under the Companies Act and having its registered office at SCF 13-14, Chhajju Majra Road, Sector 126, Greater Mohali, Kharar, District SAS Nagar (Mohali) through its Director Shri Kuldeep Soni.

                                                                 ……..Opposite Party

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    None for the complainant.

                Shri Sachin Jain, counsel for the OP.

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

Order

                  Complainants entered into an agreement with OP for purchase of one fully furnished flat No.35 (first floor) having area of approximately 500 sq. ft. in Sector 127, SAS Nagar (Mohali) on 08.04.2013 by agreeing to pay Rs.14,50,000/- as payable sale consideration amount. That amount was to be paid in three quarterly installments of Rs.3,50,000/- each. Booking amount of Rs.3,00,000/- was paid at that time. Physical possession of the flat was to be delivered by OP on or before 31.03.2015, but after receipt of balance final payment of Rs.1.00 lakh. Payment of booking amount was made by complainants through cheque drawn at Post Office Saving Bank dated 04.04.2014. No construction work of the flat started and even OP never asked for quarterly payment. On enquiry about status of construction, OP gave evasive and inconsistent replies for keeping complainants in dark. On numerous visits made by complainants at head office of OP, no consequences entailed. No construction carried and nor booking amount refunded and that is why this complaint for seeking refund of booking amount of Rs.3.00 lakhs with interest @ 18% per annum from the date of deposit till realisation. Compensation for mental agony and harassment of Rs.1.00 lakh and litigation expenses of Rs.20,000/- more claimed.

2.             In reply submitted by OP, it is pleaded inter alia as if complaint has been filed on false and misconceived facts for humiliating OP so that it may bow to unwarranted demand of complainant. OP started venture in question after obtaining all requisite approvals from concerned authorities. Complainants themselves admitted as if after paying booking amount, they have not paid any other amount and as such default is committed by complainants in complying with terms of agreement. In view of this, it is claimed that consumer dispute does not exist. Moreover, complaint alleged to be filed for abusing process of law by suppressing material facts. Rather complainants wish to take benefit of their own wrong. Dispute in question can be decided only by civil court of competent jurisdiction because of involvement of intricate questions of law and facts. Agreement was arrived at by complainants purely for investment purpose. Agreement is subject to force majeure clause and other relevant clauses pertaining to extension of time for delivery of possession. Those facts have been concealed. Complaint also alleged to be bad due to non joinder and mis-joinder of parties. No cause of action accrued in favour of complainants. Reference to Clause-2 and 7 of agreement made for claiming that in case of delay in completing project in time due to non payment of installments, then OP not liable for the alleged deficiency. It is claimed that OP made repeated requests to complainants for calling upon them to pay due installments with warning that otherwise paid booking amount will stand forfeited as per terms and conditions of agreement. Present complaint alleged to be filed after expiry of period of limitation, if last date of possession as mentioned in the complaint taken as 31.03.2015. By denying other averments of the complaint, prayer made for dismissal of the complaint.

3.             Counsel for the complainants tendered in evidence affidavit Ex.CW-1/1 of complainants alongwith document Ex.C-1 and then closed evidence. On the other hand, counsel for OP tendered in evidence affidavit Ex.OP-1/1 of Shri Kuldeep Soni, Director of OP and then closed evidence.

4.             Written arguments not submitted by any of the parties. Oral arguments of counsel for OP heard and records perused.

5.             Complainants have produced in evidence agreement Ex.C-1 dated 08.04.2013, as per which they agreed to pay sale price of Rs.14.50 lakhs in 5 installments, details of which are given below:

6.             Counsel for OP vehemently contends that as per case of complainants themselves, they paid booking amount of Rs.3.00 lakhs on 04.04.2014 and thereafter they have not paid any other amount of due installments in time and as such in view of breach of terms of agreement committed by complainants, deposited booking amount of Rs.3.00 lakhs liable to be forfeited. Certainly at Page-2 of agreement Ex.C-1, it is mentioned that payment schedule is essence of the agreement and has to be followed by the allottees strictly, failing which OP Company entitled to charge interest @ 18% per annum on the payable due amount and even OP will have right to cancel allotment.  Just by referring to time as essence of the agreement, same in fact does not become essence of the agreement because whole of the terms and conditions of agreement to be taken into consideration for finding as to whether really the parties intended to make time of payment schedule as an essence of contract or not. When the terms and conditions of agreement of sale taken into consideration in toto, then the same leaves no manner of doubt that though payment was to be made as per schedule, but despite that it was the responsibility of OP also to complete building and handover possession of the flat to the allottees at the earliest possible date. Reference to Clause-6 of Ex.C-1 can specifically be made in this respect. So if liability of complainants to pay entire sale consideration amount as per schedule of payment is there, then at the same time liability of OP to complete construction at earliest and handover possession of flat to complainants is also there. Clause-6 of agreement Ex.C-1 itself provides that in case building is not completed, or flat is not constructed, then amount received by OP Company shall be refunded to the allottees with simple saving bank interest rate only. In view of this clause and in view of positive case of complainants that no construction work carried on the spot, it has to be held that fault lay with OP in not completing construction and handing over possession of furnished flat at earliest as per terms of agreement. So it is not a case in which complainants alone to be blamed for non payment of due amount as per schedule, but it is a case in which OP despite assurance of handing over of possession of complete constructed flat, failed to handover possession of the same at earliest. It is the case of complainants put forth through complaint and through submitted affidavit that OP has not started construction and despite repeated visits to head office of OP, no proper reply received. A consumer who has paid Rs.3.00 lakhs out of hard earned money is supposed to comply with terms and conditions of schedule of payment only after being assured and satisfied that construction of apartment/flat, to be got by him, is started. As that construction was not started by OP, even before receipt of second installment in July, 2014 and subsequently thereto and as such it was but natural for complainants to conceive as if OP will not handover possession of the constructed furnished flat at earliest as per Clause-6 of agreement. Being so, in view of Clause-6 of agreement itself, complainants are entitled for refund of deposited amount of Rs.3.00 lakhs, more so when fault lay with OP also in not starting and completing construction.

7.             Clause-7 of agreement Ex.C-1 provides that OP Company will offer to handover possession of flat to the allottees or on before 31.03.2015, but no material produced by OP to establish that any steps have been taken by way of raising of construction, so as to handover possession of flat to complainants by stipulated date of 31.03.2015. Certainly complainants entitled to possession of flat/apartment after making full payment, but at the same time Clause-8 of agreement Ex.C-1 enjoins upon OP to give intimation in writing to complainants about the stipulated time by which possession of flat will be handed over after receipt of payment.  Such notice/intimation in writing not shown to be sent by OP to complainants at any point of time and as such major fault lay with OP in not starting construction. So it is not a simple  case of breach of terms and conditions of agreement by complainants, but it is a case in which major fault is with OP in not starting construction and issuing notice to complainants to pay amount of installments as per worked out schedule. Even if discretion to OP may have been given to issue or not to issue notice for calling upon complainants to pay installments, despite that it is to be kept in mind that if the construction would have been started by OP, after receipt of booking amount of Rs.3.00 lakhs, then it was but natural for OP to issue notice for calling upon complainants to pay balance amount in installments as per above referred schedule. Such notice in writing not sent by OP to complainants at all at any point of time and as such same renders story of complainants believable that as construction not started by OP and that is why demand of balance installments not put forth by OP. So facts and circumstances of the case leans in favour of holding that major fault remained with OP in not starting construction even after receipt of booking amount.

8.             It is vehemently contended by counsel for OP that last date of payment of installments and completing of construction as per case of complainants and contents of Ex.C-1 is 31.03.2015 and as such complaint could have been filed within two years thereafter i.e. by 31.03.2017, but this complaint filed on 30.10.2017 is barred by limitation in view of Section 24-A of Consumer Protection Act. That submission of counsel for OP again has no force because 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. In view of this, OP not entitled to forfeit the paid booking amount by complainants.

9.             It is also contended by counsel for OP that there is no record produced to show about the visits of complainants to office of OP and as such virtually afterthought versions are introduced in the complaint. This submission of counsel for OP has no force, more so when OP itself has not shown as to when it made repeated requests to complainants to pay due installments as alleged in Para No.5 of written statement under heading “on merits”. If really such requests would have been submitted by OP, then record of the same bound to be with OP because of auditing of its accounts by auditors as per requirements of Companies Act. Being so, afterthought versions virtually are introduced by OP in this respect and not by complainants. There is no suppression of material facts at all because complainants have been candid enough in claiming that after payment of booking amount, they have not paid any other amount. Reasons for non payment are obvious namely non start of construction by OP on the spot.

10.           Complainants entitled for refund of deposited amount with interest @ 12% per annum from the dates of deposit 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. 

11.           No other worth mentioning point argued by counsel for OP.

12.           As a sequel of above discussion, complaint allowed by directing OP to refund received amount of Rs.3,00,000/-         (Rs. Three Lakhs only) with interest @ 12% per annum from the date of its receipt namely 04.04.2014 till payment. Compensation for mental agony and harassment of Rs.10,000/- (Rs. Ten 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. Certified copies of the order be supplied to the parties free of costs as per rules.  File be indexed and consigned to record room.

Announced

May 29, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member