DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.272 of 2017
Date of institution: 10.04.2017 Date of decision : 03.10.2018
Davinder Singh son of Sukhdev Singh, resident of Dashmesh Nagar, Tehsil Kharar, District Mohali, Punjab.
…….Complainant
Versus
1. M/s. Bajwa Developers Ltd., Sunny Enclave, Sector 125, Mohali through its Managing Director Shri Jarnail Singh Bajwa.
2. Jarnail Singh Bajwa, Managing Director, M/s. Bajwa Developers Ltd., Sunny Enclave, Sector 125, Mohali.
……..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 Paras Chug, counsel for complainant.
Shri Amit Sharma, counsel for OPs.
Order by :- Shri G.K. Dhir, President.
Order
Complainant agreed to purchase one BHK Flat BR No.1647, Sunny Apartment, F-21 in Sector 74-A, 117, Mohali on 22.12.2011 for total sale consideration of Rs.12,00,150/-. Size of the flat was 450 sq. ft. On execution of agreement dated 04.05.2011, amount of Rs.3.00 lakhs was paid through installments of Rs.1.00 lakh and Rs.2.00 lakhs. Thereafter further amount of Rs.1,80,000/- was paid on 25.11.2011 and another amount of Rs.1,80,000/- was paid on 19.05.2012. OPs got the cheques encashed for receiving total amount of Rs.6,60,000/- from complainant. Possession of the fully constructed flat was to be delivered on or before 31.12.2013, but no construction has been started by OPs at the site in question. OPs kept on buying time on one pretext or the other by way of extending time for delivery of possession upto 30.06.2014 and then to 11.11.2014; 30.07.2015 and 07.01.2016. Even uptill August 2016, OPs failed to carry on construction and that is why complainant called upon OPs to refund the amount, but further promise for delivery of possession upto 31.07.2016 was made, but after execution of fresh agreement of sale dated 18.04.2016 in respect of the same flat. Payment was to be made as per plan worked out in the schedule of installments at different intervals. License for developing the colony was granted by GMADA to OPs only on 13.11.2014. More than 50% of the total sale consideration amount has already been paid by complainant to OPs, but despite that possession not given; even though representation dated 08.03.2017 was submitted with OPs. As such by pleading deficiency in service on part of OPs, prayer made for directing OPs to refund amount of Rs.6,60,000/- alongwith interest @ 19% per annum from the dates of deposits till actual payment. Compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.55,000/- more claimed.
2. In reply filed by OPs, it is claimed that the complaint barred by limitation in view of Section 27 of Indian Limitation Act because final payment was to be made on 07.01.2016, but complainant made last payment on 19.05.2012 and thereafter remained silent for more than 4 years. Moreover, it is claimed that agreement dated 04.05.2011 stood replaced by another agreement dated 18.04.2016 and as such parties are bound by terms of latest agreement. In view of Clause-3 of the agreement, earnest amount deposited liable to be forfeited because of default committed by complainant in paying installments within 15 days from the stipulated time. Non compliance of terms of Clause-7 of agreement by complainant even pleaded by claiming that complainant has got booked the flat on terms and conditions regarding eligibility of applicant belonging to EWS category. Agreement is alleged to be under stamped and consent of OPs was obtained by concealing material facts by playing fraud because complainant though belongs to affluent section of the society, but he got the flat belonging to EWS category. Even after execution of fresh agreement dated 18.04.2016, complainant has not deposited any installment and as such it is claimed that earnest amount of Rs.3.00 lakhs stood forfeited as per Clause-3 of agreement. Agreement in question alleged to be void ab-initio because of fraudulent consent of OPs obtained by complainant. Other averments of the complaint denied.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.
C-5 and then closed evidence. On the other hand counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Managing Director and thereafter closed evidence.
4. Written arguments not submitted. Oral arguments heard and records gone through.
5. Both the parties have relied upon the fact that two agreements in fact were executed between the parties. Original agreement was alleged to be arrived at on 05.04.2011 and copy of the same produced on record as Ex.C-1. Second agreement dated 18.04.2016 was executed between parties, is a fact borne from copy of that agreement placed on record as Ex.C-2. Admittedly total sale consideration price of the flat in question was Rs.12,00,150/- as per terms of both agreements Ex.C-1 and Ex.C-2. Schedule of payment of installments specifically mentioned both in Ex.C-1 and Ex.C-2. After going through endorsements annexed with Ex.C-1, it is made out that complainant in fact has deposited Rs.6,60,000/- with OPs during period from 23.04.2011 to 19.05.2012. However, as per schedule of payment of installments worked out in Clause-2 of agreement Ex.C-1, 3rd to 5th installments amount of Rs.1,80,000/- each was to be paid by complainant to OPs on 01.05.2012; 01.09.2012 and 02.11.2012. These amounts of 3rd to 5th installments have not been paid by complainant to OPs, despite the fact that time for execution of sale deed stood extended from time to time as revealed by endorsements on agreement Ex.C-1 itself. This time stood extended upto 31.03.2013 in the first instance and then to 31.12.2013; 30.06.2014; 01.11.2014; 30.07.2015 and 07.01.2016. Complainant acquiesced in these extensions and that is why he executed fresh agreement of sale Ex.C-2, in which too mention specifically made as if time for execution of sale deed stood extended to 31.12.2016. Endorsements regarding receipt of amounts of Rs.6,60,000/- even made on page annexed with Ex.C-2 by specifying the same dates of receipt of amounts as are mentioned in acknowledgment annexed with Ex.C-1.
6. After going through agreement Ex.C-2, it is made out that first installment of earnest amount of Rs.3.00 lakhs was to be paid by 02.05.2011, but subsequent 5 installments of Rs.1,80,000/- each were to be deposited by complainant with OPs on 01.01.2012; 11.11.2014; 11.11.2014; 11.11.2014 and 07.01.2016. Condition regarding deposit of 3rd, 4th and 5th installment on one and the same date namely 11.11.2014 is certainly harsh and oppressive because if time for execution of sale deed stood extended upto 31.12.2016, then there was no necessity for OPs to demand amount of 3 installments of Rs.1,80,000/- each on one and the same date namely 11.11.2014. In view of this conscionable condition, it has to be held that in view of extension of time repeatedly given for execution and registration of sale deed, complainant could have made the payment of entire amount of Rs.12,00,150/- upto the date of extension of time for registration of sale deed namely 31.12.2016. However, keeping in view the fact that complainant acquiesced in extension of time, it has to be held that payment should have been made by complainant by sticking to the payment plan worked out in Ex.C-1. However, complainant has not sticked to that payment plan and as such fault lays with complainant in not adhering to schedule of payment plan. Complainant sought refund of the deposited amount for the first time by issue of notice Ex.C-3 dated 08.03.2017 by sending the same through registered post as revealed by copy of postal receipt Ex.C-4 and track consignment record of Indian Post Office Ex.C-5. So virtually refund of the deposited amount sought for the first time on 08.03.2017 and not before that. Complainant acquiesced in the conduct of OPs in seeking extensions repeatedly and as such complainant estopped by his act and conduct from denying right of OPs to deliver possession upto 31.12.2016. Being so, entitlement of complainant for seeking interest @ 12% per annum allowed with effect from the date of issue of notice Ex.C-3 and not before that because complainant never earlier pressed upon OPs to refund the amount. Rather complainant committed default in making payment of installments. Only 54% of the sale consideration amount deposited by complainant and as such submission advanced by counsel for OPs has force that in view of fault committed by complainant in not adhering to the payment plan, project in question could not be carried forward.
7. As per law laid down in Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC), if the purchaser remained defaulter in not adhering to the installment payment plan, then he is not entitled for any interest, even though the builder had not developed the site, due to which he is not in a position to deliver possession. It is so because he who seeks equity must do equity. In case the equity seeker himself is deficient, then he is not entitled for any interest, is the crux of ratio of above said case. Ratio of this case is fully applicable to the facts of the present case.
8. Counsel for complainant vehemently placed reliance on composite decision dated 08.02.2018 of Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh delivered in CC No.716, 789, 835 etc. of 2017 titled as Mangal Singh Kondal & others Vs. Bajwa Developer & Another for arguing that refund of the deposited amounts should be with interest @ 12% per annum from the dates of deposit till realisation. That submission of counsel for complainant has no force for purposes of this case, more so when complainant has deposited an amount of Rs.6,60,000/- out of total sale consideration of Rs.12,00,150/- Complainant has deposited as such 54% of the sale consideration amount and as such it is a case in which complainant not sticked to the payment schedule laid down in agreement relied upon by the parties. In view of this non sticking to the payment schedule plan virtually by complainant, he is entitled for refund of the paid amount with interest @ 12% per annum from the date of first demand put forth by way of issue of notice dated 08.03.2017. Hon’ble State Commission in the above cited case relied upon Rule 17 framed under Punjab Apartment and Property Regulation Act, 1995 for allowing interest @ 12% per annum with effect from the dates of deposits, but in the present case before us, rule applicable is contained in Section 12 of above said Act. Rule 17 has application in cases governed by Section 6 (1) of Punjab Apartment and Property Regulation Act, 1995. That Section 6 (1) of Punjab Apartment and Property Regulation Act, 1995 provides that a promoter intending to construct a building apartment before acceptance of any money as advance payment or deposit, will not accept more than 25% of the sale price and thereafter will enter into written agreement for sale with each of the persons, who are to take possession of apartments/plots. However, Section 12 of Punjab Apartment and Property Regulation Act, 1995 provides that if the promoter fails to give possession in accordance with terms of agreement for reasons beyond his control and of his agents by specified date or further agreed date, then the promoter shall be liable on demand, but without prejudice to any other remedy to which he may be liable, to refund the amounts already received by him in respect of that plot or apartment with simple interest at the rate as may be determined by competent authority from the date the promoter received the sums till the date the amounts and interest thereon is refunded. Present is a case in which OPs failed to get requisite sanctions/approvals from the authorities as per case of complainant himself. If that be the position, then case in hand is governed by Section 12 of Punjab Apartment and Property Regulation Act, 1995 and not by Section 6 (1) of Punjab Apartment and Property Regulation Act, 1995. Rule 17 of Punjab Apartment and Property Regulation Act, 1995 is applicable, when the case governed by Section 6 of Punjab Apartment and Property Regulation Act, 1995. In view of this, by invoking Section 12 of Punjab Apartment and Property Regulation Act, 1995, this Forum has discretion to allow interest at such rate as is reasonable and appropriate in the facts and circumstances of this case. Moreover, complainant himself failed to comply with requirements of allotment of Economically Weaker Section category flat, despite specific stipulation contained in Clause-7 of agreement Ex.C-1 and as such complainant not entitled to any interest, till the date he sought refund of the same for the first time. That refund for the first time sought by issue of notice dated 08.03.2017 and as such allowing of interest @ 12% per annum from the date of issue of notice will be reasonable, proper, equitable and just.
9. It is also contended by counsel for complainant that OPs accepted amounts in question from complainant for allotment of EWS category flat by assuring as if the flat is in general category. That submission of counsel for complainant again has not much force because after going through Clause-7 of agreement in question, it is made out that duty was cast upon complainant, being purchaser, to comply with the terms and conditions for allotment of flat in EWS category. If OPs have not issued notice to the complainant for calling upon him to comply with requirements for allotment of EWS category flat, then at the same time complainant also remained at fault in not ascertaining as to whether the allotted flat is in general category or is in the category of EWS. So fault also lay with complainant in view of non compliance with the obligation put on him under Clause-7 of the agreement.
10. OPs claim through written reply as well as affidavit Ex.OP-1/1 of Baldev Singh, Director of OPs 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 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 & 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 OPs, if they want to treat it as void.
11. 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.
12. Even if assuming for arguments sake that consent of OPs in entering into agreement Ex.C-1 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 OPs not entitled to retain amount of Rs.6,60,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement.
13. 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.6,60,000/- with interest.
14. 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.
15. 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.
16. 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.
17. As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.6,60,000/- (Rs. Six Lakhs Sixty Thousand only) with interest @ 12% per annum from the date issue of notice namely 08.03.2017 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 failing which complainant will be entitled to interest on the amounts of compensation and litigation expenses @ 7% per annum after expiry of said period of 30 days of receipt of certified copy of the order till payment. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
October 03, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
