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

Consumer Complaint No.109 of 2017

                                                Date of institution:  13.02.2017                                             Date of decision   :  26.09.2018

Divya Khatri wife of Shri Mahesh Gulati resident of House No. HM 65, Phase-IV, SAS Nagar, Mohali.

…….Complainant

Versus

1.     M/s. Bajwa Developers Ltd. (Regd.), Sunny Enclave, Desu Majra, Tehsil Kharar, District SAS Nagar, Mohali through Managing Director.

2.     Shri J.S. Bajwa, Managing Director, M/s.Bajwa Developers Ltd. (Regd.), Sunny Enclave, Desu Majra, Tehsil Kharar, District SAS Nagar, 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 Munish Bhardwaj, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

               Complainant booked one BHK apartment BR No.332 measuring 450 sq. ft. at Sunny Enclave, Tehsil Kharar, District SAS Nagar (Mohali) with OPs by agreeing to pay total sale consideration of Rs.12,52,000/-. Agreement dated 29.04.2011 was executed after payment of Rs.3,12,500/- by complainant to OPs at the time of booking of the apartment. Thereafter an amount of Rs.1,87,800/- was more paid by complainant to OPs on 09.09.2011. For paying the balance amount, complainant applied for loan of Rs.7,50,000/- with HDFC Bank. That loan was approved by the bank vide letter dated 02.01.2012. Bank called upon complainant to submit approved lay out plan of the housing project for disbursement of the loan. OPs were requested to provide the approved lay out plan, but they failed to provide the same and that is why the bank refused to disburse the loan amount. Due to this failure of the bank to disburse the loan amount, complainant failed to make further payment to OPs. OPs have not started the project at all till date and that is why they are unable to handover the possession. Complainant made visits to the office of OPs for knowing about the latest position of the project, but they failed to provide any satisfactory reply. OPs gave written assurance for refund of the amount, if the work not started by 30.11.2014. In latest visit to site by complainant, it was found that work has not been started. After serving legal notice dated 09.01.2017, this complaint filed for seeking refund of the paid amount of Rs.5,00,300/- with compensation for mental harassment and agony of Rs.3.00 lakhs and compensation for deficiency in service to hand over possession of Rs.3.00 lakhs with interest @ 18% per annum from the date of deposit till refund. Complainant has also sought litigation expenses of Rs.50,000/-.

2.             In reply submitted by OPs, it is pleaded inter alia as if complaint is barred by limitation because agreement was arrived at between the parties on 29.04.2011 and last payment of Rs.1,87,800/- was made on 09.09.2011, but this complaint filed on 13.02.2017. Reference to provisions of Section 24-A of the Consumer Protection Act and Article 54 of Indian Limitation Act made in support of plea of bar of limitation. Moreover, it is claimed that complainant is not consumer within meaning of section 2 (1) (d) of Consumer Protection Act because flats were meant for economically weaker sections of the society, but complainant by concealing her identity of affluent member of the society, fraudulently entered into agreement in question. The transaction in question between the parties is of execution of sale agreement regarding an apartment, the total sale price of which is Rs.12,52,000/- and as such this Forum is alleged to be having no jurisdiction. Complainant booked the apartment knowing fully well that approvals yet to be got by OPs. By putting of extra efforts by OPs, they were able to get the requisite approvals. It is claimed that as complainant failed to deposit the installments as per schedule and as such the amount deposited by her liable to be forfeited. Admittedly amount of Rs.5,00,300/- was deposited by complainant with OPs. However, in view of nonpayment of due installments by stipulated time, complainant is estopped by her act and conduct from filing the complaint. No cause of action alleged to have accrued in favour of complainant. Moreover, relationship of consumer and service provider alleged to be not existing between parties. In Clause 6 of the agreement, mention specifically made regarding getting of approvals of the project by OPs from concerned departments. In Clause-6 of the agreement, it is specifically mentioned that in case for any technical reason, the land could not be passed, then the buyer can get only the deposited amount, but without claiming for compensation. Other averments of the complaint denied, but by claiming that fault also lays with complainant in not submitting the requisite documents for proving herself to be a member of economically weaker section category.

3.             Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.
C-4 and then closed evidence.  On the other hand counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Jarnail Singh Bajwa, Managing Director and affidavit Ex. OP-A of Shri Baldev Singh Bajwa, Director of OPs and thereafter closed evidence.

4.             Written arguments submitted by complainant. Oral arguments heard and records gone through.

5.             Both the parties in this case relies on agreement Ex.C-1 produced by complainant. After going through this Ex.C-1, it is made out that OPs acknowledged through endorsements having received Rs.5,00,300/- in all on different dates from complainant. Those amounts received by OPs from complainant  were during the period from 17.04.2011 to 09.09.2011. Denial of receipt of this amount of Rs.5,00,300/- not made in the written statement or in the two affidavits of Managing Director and Director of OPs and as such certainly complainant able to establish that she paid 40% of the total sale consideration amount of Rs.12,52,000/- of the flat in question to OP.

6.             Perusal of endorsements on agreement Ex.C-1 itself shows that time for execution of sale deed stood extended many times and as such submission of counsel for OPs has some force that time for delivery of possession or completion of project stood extended upto 30.04.2015 atleast with consent of complainant. Endorsement of extension of time upto 30.04.2015 is made at Page-1 of Ex.C-1 itself. In view of this acquiescence by complainant in extension of time uptill 30.04.2015, now complainant certainly estopped by her act and conduct from claiming that possession should have been delivered by 30.11.2014 or refund should have been made by 30.11.2014. In view of extension of time upto 30.04.2015 granted by complainant herself by putting signatures on Ex.C-1, now complainant estopped by her act and conduct from claiming that possession should have been delivered by 30.11.2014 and not beyond that period.

7.             Complainant has produced on record letter Ex.C-2 issued by HDFC Bank on 02.01.2012 for proving that housing loan of Rs.7,50,000/- was approved by HDFC Bank in her favour on payment of processing fee of Rs.4,140/-. In view of this Ex.C-2 and in view of contents of letter Ex.C-3 sent by complainant to OPs for seeking copy of approved lay out plan, it is obvious that contents of affidavit Ex.CW-1/1 of complainant are correct that as copy of approved lay out plan of the project not handed over by OPs to complainant and that is why same could not be submitted with HDFC Bank resulting in non grant of approved loan. By keeping in view contents of Ex.C-2 and Ex.C-3, it is obvious that complainant did her best for providing the balance sale consideration amount to OPs after contracting loan of Rs.7,50,000/- from HDFC Bank. Fault in non disbursal of above said loan amount of Rs.7,50,000/- by HDFC Bank to complainant, lies with OPs because of non providing of copy of approved lay out plan demanded by complainant from OPs through letter Ex.C-3. This shows that complainant remained ready and willing to perform her part of the contract for paying the total sale consideration amount, but fault remained with OPs in not providing copy of approved lay out plan, resulting in non disbursal of the loan amount by HDFC Bank in favour of complainant.  So in view of this, complainant becomes entitled for refund of the deposited amount of Rs.5,00,300/- with interest @ 12% per annum with effect from the date of issue of letter Ex.C-2 dated 02.01.2012 by HDFC Bank in favour of complainant for informing her that housing loan may be availed by complainant.

8.             It is the case of complainant that construction of the project in question has not been started and that is why possession not delivered despite issue of legal notice Ex.C-4. Rather it is contended by counsel for complainant that requisite sanctions from the concerned authorities not got by OPs, and that is why the project not completed.  

9.             It is not denied by OPs in their written reply that requisite sanctions from GMADA and other authorities could not be got earlier. So it is contended by counsel for complainant that OPs committed fraud with complainant and other customers by pretending as if the colony in question is approved one, whereas in fact it was not approved one.  However, that submission has no force because after going through Clause-6 of relied upon agreement Ex.C-1 by parties, it is made out that in case flat/plot going to be sold to complainant for any technical reason, does not get approval of the authorities, then the allottee will be entitled for return of earnest amount, but without seeking compensation. When this specific clause 6 of the agreement exists, and complainant made payments after acknowledging this agreement, then there is no escape from the conclusion that complainant was specifically made aware of the fact that requisite sanctions from authorities yet to be obtained and that is why it has been specifically mentioned in Clause-6 that in case for any technical reason, requisite sanctions from the authorities not received, then refund of the earnest amount without compensation can be claimed by complainant.  As terms of agreement itself provides that complainant was made aware about non getting of approvals by OPs from GMADA and other authorities, and as such plea taken in reply and in the two submitted affidavits of OPs are correct that complainant was made aware at the time of booking of the flat that requisite sanctions/approvals yet to be obtained from competent authorities. Despite this knowledge, complainant booked the flat in question and as such question of commission of fraud by OPs with complainant does not arise. Rather complainant booked the flat in question even after knowing that requisite sanctions yet to be obtained, but in hope that OPs will get the requisite sanctions as projected by them. So allegations of fraud or of cheating not at all made out.

10.            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.5,00,300/-  out of total sale consideration of Rs.12,52,000/-, which means that complainant deposited 40% of the sale consideration amount. However, complainant made efforts for providing balance sale consideration amount after contracting loan and as such willingness of the complainant to pay balance amount proved w.e.f. 02.01.2012, the date of issue of Ex.C-2 and not before that. Rule 17 of PAPRA Rules framed under Punjab Apartment and Property Regulation Act, 1995 provides for grant of interest @ 12% per annum with effect from the dates of deposit. This rule is applicable in cases covered by Section 6 (1) of Punjab Apartment and Property Regulation Act, 1995, which lays 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 an 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. In the present case, the OPs failed to get requisite sanctions/approvals from the authorities and as such case in hand governed by Section 12 of Punjab Apartment and Property Regulation Act, 1995 and not by Section 6 (1) of that Act read with  Rule 17 framed thereunder. In view of agreement by OPs to extend the time uptill 30.04.2015 repeatedly, it is obvious that complainant acquiesced in the act of OPs of seeking approvals until 30.04.2015 atleast. So virtually possession could not be delivered to complainant by OPs because of circumstances beyond their control i.e. on account of non receipt of approvals from the competent authorities. Being so, entitlement of interest from the date of deposits is not in consonance with the spirit of Section 12 of Punjab Apartment and Property Regulation Act, 1995, but entitlement for interest is held with effect from the date of sanction of loan through Ex.C-2 by HDFC Bank in favour of complainant.

11.            After going through the schedule of payment worked out in Clause-2 of agreement Ex.C-1, it is made out that amount of Rs.5,00,300/- was to be deposited upto 29.08.2011 and the second installment was to be deposited by 29.12.2011. There is nothing on record to suggest that complainant after paying amount of Rs.5,00,300/- on 09.09.2011 virtually took steps for making payment of second installment of Rs.1,87,800/- by due date of 29.12.2011. Being so, fault lays with complainant in that respect in not sticking to the payment of second installment by stipulated date. As per case of Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC),  in case the purchaser commits default in making payment of installments as per payment plan, then he is not entitled for interest on the paid amount. So keeping in view the fact that the complainant became able to arrange for payment of balance amount of second, third and fourth installments w.e.f. 02.01.2012 onwards, it is fit and appropriate, by keeping in view equitable considerations in mind, to allow interest with effect from 02.01.2012 till payment in favour of complainant.

12.            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 her 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 her under Clause-7 of the agreement.

13.            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 amounts because in doing so they virtually are seeking unjust enrichment. OPs themselves are also at fault in not starting the construction.

14.            Even if assuming for arguments sake that consent of OPs in entering into agreement Ex.C-1 was obtained by complainant by misrepresentation of her 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.5,00,300/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement. That clause of forfeiture is unconscionable in view of the fact that OPs kept on seeking extension from complainant uptill 30.04.2015 for executing sale deed or to deliver possession.

15.           Complainant certainly is consumer of OPs within meaning of Section 2 (1) (d) of CPA because she 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.5,00,300/- with interest.

16.            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.

17.            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.

18.            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.

19.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.5,00,300/- (Rs. Five Lakhs  Three Hundred only) with interest @ 12% per annum w.e.f. 02.01.2012 (the date of issue of Ex.C-2) 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

September 26, 2018.

                                                                (G.K. Dhir)

                                                                President

                                                       (Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member