DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.778 of 2016
Date of institution: 22.11.2016 Date of decision : 21.03.2018
Ajay Kumar Singhal son of Shri Pritam Lal, resident of Flat No.401, GH-2, Sector 20, Panchkula.
…….Complainant
Vs
1. M/s. Bajwa Developers Limited c/o Sunny Enclave, Desu Majra, Tehsil Kharar, S.A.S Nagar.
2. Shri Jarnail Singh Bajwa son of Shri Bishan Singh, Managing Director M/s. Bajwa Developers Limited c/o Sunny Enclave, Desu Majra, Tehsil Kharar, S.A.S Nagar.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Shri D.S. Soundh, counsel for complainant.
Ms. Kulwinder Kaur, counsel for the OPs.
Order by :- Shri G.K. Dhir, President.
Order
Officials of OPs started promoting scheme for development of residential colony even before preparation of actual drawings and grant of licences, owing to which complainant approached OPs for having residential unit in developed area. Complainant was allured by representatives of OPs and that is why he entered into agreement of sale for purchase of one BHK BR flat measuring 450 sq. ft. Flat No.F-21 was allotted to complainant in the project of OPs located in Sector 74-A, 117, Mohali. An amount of Rs.1.00 lakh was paid as booking amount by complainant to OPs on 18.04.2011, but another amount of Rs.2,12,500/- was paid by him on 20.06.2011. Thereafter agreement of sale dated 21.06.2011 was entered into between the parties. Another payment of Rs.1,87,800/- was made by complainant to OPs vide cheque dated 21.10.2011. Complainant kept on reminding OPs constantly about their promise, but to no effect. Notice dated 28.08.2015 even was served on OPs for calling upon them to refund the received amount alongwith interest and compensation, but to no effect. This refund was sought in view of fault of OPs to build the apartments. OPs are not in a position to deliver possession of the flat with full development and promised facilities. Scheme floated by the OPs was just a farce for collecting huge amount from general public. OPs kept on procrastinating the matter of delivery of possession, despite numerous visits by complainant to the office of the OPs, last of which was in June, 2016. It is claimed that flat of similar size is available at total price of Rs.12.00 lakhs. By pleading deficiency in service, prayer made for directing OPs to refund the received amount of Rs.5,00,300/- alongwith interest @ 18% per annum from the date of deposit till refund. Compensation for mental harassment and agony of Rs.2.00 lakhs and further Rs.2.00 lakhs as deterrent punitive damages claimed. Litigation expenses of Rs.22,000/- more claimed.
2. In reply submitted by OPs, it is pleaded inter alia that complaint is barred by limitation because agreement was arrived at on 21.06.2011 and last payment of Rs.1,87,800/- was made by complainant to OPs on 29.03.2012, but despite that this complaint filed on 22.11.2016 after a period of more than four years of accrual of cause of action. Construction and possession of the flat was limited to payment plan annexed with the agreement, as per which the final payment was to be made by 20.12.2012. However, complainant paid two installments and has not paid the remaining amount and as such it is claimed that in view of Clause-3 of agreement, deposited earnest amount stands forfeited. Reference to Section 27 of Indian Limitation Act and Section 24-A of Consumer Protection Act also made for claiming that complaint is barred by limitation. Flat was meant for economically weaker sections of the society regarding which specific reference made in Clause-7 of the agreement. As complainant undertook to abide by the terms and conditions regarding eligibility of allotment of EWS flat, but he himself failed to fulfill those terms and conditions and as such he is not entitled for refund of the amount. Moreover, it is claimed that complainant cannot rely on the agreement, which was never signed by him. Complainant deliberately disclosed OPs as if he is eligible for allotment of EWS category flat. As consent of OPs was obtained by fraud and as such agreement is alleged to be void, ab-initio. Total sale consideration of one BHK flat was Rs.12,52,000/-. Complainant has never paid the left out four installments and as such he is not entitled for any refund.
3. Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant alongwith documents Ex.C-1 to Ex.C-4 and thereafter closed evidence. On the other hand, counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Jarnail Singh Bajwa, MD of the OPs and thereafter closed evidence.
4. Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.
5. From the pleadings of the parties and the submitted evidence as well as contents of agreement Ex.C-1, it is made out that this agreement dated 21.06.2011 was arrived at between the parties as per which complainant was to purchase one BHK BR No.382 Flat having approximate area of 450 sq. ft. for consideration of Rs.12,52,000/-. An amount of Rs.3,13,000/- was payable as earnest money. The paid amounts by complainant of Rs.1.00 lakh on 18.04.2011; Rs.2,12,500/- on 20.06.2011 and of Rs.1,87,800/- on 29.03.2012 are acknowledged by OPs through prepared balance sheet Ex.C-2. Even it is not denied in the written statement or in the affidavit Ex.OP-1/1 of OPs that these amounts were not received by the OPs from complainant. So contents of Ex.C-2 enough to establish as if amount of Rs.5,00,300/- was received by OPs from complainant. Even if this amount was received by OPs from complainant, despite that the payment of balance amount out of sale consideration of Rs.12,52,000/- settled through agreement Ex.C-1 has not been made by complainant because neither the same claimed to be paid and nor proved to be paid. This is despite the fact that as per schedule of payment worked out in Clause-2 of Ex.C-1, complainant was to pay the earnest amount of Rs.3,13,000/- by 20.06.2011, but was to pay the balance 5 installments of Rs.1,87,800/- each on 20.10.2011; 20.02.2012; 20.06.2012; 20.10.2012 and 20.12.2012 respectively. Complainant as has deposited amount upto stipulated first installment only and as such certainly submissions advanced by counsel for OPs has force that complainant failed to pay the amount of 2nd to 5th installments regularly. When complainant got knowledge regarding inability of OPs to complete the project qua that contents of complaint and supporting affidavit are absolutely silent and as such it is obvious that virtually complainant stopped paying balance installments on his own volition. If the complainant would have been able to ascertain by particular date the OPs became not able to abide by terms and conditions of agreement Ex.C-1 to handover the possession, only then, further installments could have been stopped to be paid by complainant, and then some justification in his act of not abiding by terms and conditions of agreement Ex.C-1 could have been found. In view of non proving of any date as to when complainant got knowledge regarding inability of OPs to develop the project in question, it has to be held that complainant deliberately himself committed breach of terms and conditions of agreement Ex.C-1 by not sticking to the payment schedule envisaged by Clause-2 of Ex.C-1. Even if this deliberate default on part of complainant may be there, despite that fault also lies with OPs in not completing the project and handing over possession or of getting formalities of EWS category certificate from complainant. So it is a case in which both the parties to agreement in question committed breach of terms and conditions of agreement in question. When breach of terms and conditions of the agreement committed by both the parties, then certainly party seeking refund of the paid amount will be entitled for such refund from the date as and when refund sought for the first time. Notice Ex.C-3 through postal receipt Ex.C-4 for seeking refund of the paid amount was issued for the first time by complainant to OPs on 28.08.2015 and as such complainant entitled to refund of the paid amount with due interest from this date of 28.08.2015 only.
6. It is pleaded by OPs in written statement that agreement in question is void ab-initio because consent of OPs obtained by fraud. That element of fraud is not at all proved by OPs and just assertion of fraud not enough to deny benefit of refund to complainant because of specific provisions contained in Sections 64 and 65 of Indian Contract Act. Sections 64 and 65 of Indian Contract Act provides that when an agreement is void or voidable at the option of one of the party, then the party seeking agreement to be declared as void or voidable, bound to reimburse the benefits received by it under the agreement to the party, from whom those benefits got by it. So in view of this legal position, certainly OPs bound to return back the received amount to complainant, particularly when they themselves are party to the agreement Ex.C-1, relied upon by themselves for getting amount of Rs.5,00,300/- deposited from complainant under the terms thereof. So allegation of fraud certainly cannot come in the way of administration of justice to complainant or for giving undue benefit to OPs of their own wrongs of not completing the project or performing duty of ensuring that before arrival of agreement Ex.C-1, complainant should be made to prove or show his entitlement to the sought for EWS category flat.
7. After going through Clause-6 of Ex.C-1 it is made out that in case due to any technical defect approvals from the authorities concerned cannot be obtained, then the purchaser will be entitled for refund of the paid earnest amount, but not to compensation amount. Project in question has not been completed for want of approvals from the authorities concerned is the case projected by complainant and OPs have failed to establish that all the requisite sanctions of change of land use or of obtaining of pollution certificate or of developing colony has been obtained by them and as such virtually fault lies with OPs in not completing the project after seeking requisite approvals/sanctions from the authorities concerned. So in view of Clause-6 of Ex.C-1 also the complainant is entitled for refund of the paid amounts.
8. Even if agreement Ex.C-1 was arrived at on 21.06.2011 and the last of the payment was made by complainant on 29.03.2012, despite that complaint being filed on 22.11.2016 is not barred by limitation because recurring cause of action accrued in favour of complainant for seeking delivery of possession of the flat agreed to be purchased until seeking of refund of paid amount due to inability of Ops to complete the construction. Complainant got knowledge regarding inability of Ops to complete construction in 2015 finally and that is why he sent notice Ex.C-3 dated 28.08.2015 for seeking refund of the paid amount with interest, but by claiming that OPs themselves have failed to fulfill their commitment. Contents of this notice Ex.C-3 cannot be termed as false, particularly when OPs themselves failed to prove that they have started construction of the project in question for making the same ready for delivery of possession to the allottee of the flat. So certainly this complaint is not barred by limitation at all, more so when ratio of case titled as Vasant Mahadero Kate Vs. Shastri Gruha Nirman Sahkari Sanstha Ltd. II (2015) CPJ 4 (NC), lays that purchaser of plot/flat has continuous cause of action available to him unless and until possession of plot/flat handed over to him. So in view of availability of recurring cause of action in favour of complainant till knowledge of inability of OPs to start construction, complaint is not barred by limitation.
9. Counsel for OPs vehemently contends that in view of condition No.3 of agreement Ex.C-1, OPs entitled to forfeit the deposited earnest money because complainant failed to deposit the installments in stipulated period. That submission of counsel for OPs again has no force because OPs themselves failed to prove that they at any point of time have started construction of the project in question. So long as OPs does not start construction of the project, the prospective purchasers bound to remain in doldrums and as such if complainant failed to deposit the balance amount, then exclusive fault to complainant cannot be attributed. Rather fault also lies with OPs in not starting and completing the construction and handing over the possession.
10. As per case of Kushal K. Rana Vs. M/s. DLF Commercial Complex Ltd., 2015(1) CLT 134 (NC), both the parties are bound by terms and conditions of the buyers agreement for purchase of flat/plot because agreement is not one way traffic. If that be the position, then certainly both the parties bound by terms and conditions of agreement Ex.C-1 in question. However, in this case both the parties remained at fault in not sticking to terms and conditions of agreement Ex.C-1 and as such circumstances warrant that OPs should be made to refund the received amount with interest @ 12% per annum with effect from the first ever demand for refund put forth through notice Ex.C-3 dated 28.08.2015 only. It is so because fault of complainant in not paying the balance amount may have made the OPs to have scarcity of funds for developing the project by way of starting construction thereof.
11. As a sequel of above discussion, complaint allowed with direction to OPs to refund the received amount of Rs.5,00,300/- with interest @ 12% per annum with effect from the date of issue of legal notice dated 28.08.2015 till payment. Compensation for mental harassment and agony of Rs.20,000/- and litigation expenses of Rs.5,000/- more allowed in favour of complainant and against the OPs. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. Certified copies be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
March 21, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
