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

Consumer Complaint No.528 of 2017

                                                  Date of institution:  20.07.2017                                             Date of decision   :  18.10.2018

Krishan Gupta son of Late Shri Vijay Kumar Gupta, resident of 135, Allen By Lines, Ambala Cantt.

…….Complainant

Versus

1.     M/s. Bajwa Developers Ltd. Through its Managing Director Shri Jarnail Singh Bajwa son of Shri Bishan Singh Bajwa, Office at Sunny Enclave, Village Deshumajra, Tehsil Kharar, District SAS Nagar, Mohali (Punjab).

2.     Shri Jarnail Singh Bajwa son of Shri Bishan Singh Bajwa, Managing Director of M/s. Bajwa Developers Ltd. Office at Sunny Enclave, Village Deshumajra, Tehsil Kharar, District SAS Nagar, Mohali (Punjab).

                                                         ……..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 Satyajeet, counsel for the complainant.

                Shri Amit Kumar, counsel for the OPs.

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

Order

               Complainant after approaching OPs, evinced desire of purchase of one BHK  flat on payment of Rs.12.00 lakhs as price. OPs did show the map of their project “F-21 Mohali, Sector 74A,117”. Flat No.1742 measuring 450 sq. ft.  was to be purchased by complainant regarding which agreement dated 26.11.2012 was executed between the parties. Complainant got knowledge as if OPs have neither purchased land and nor obtained license from Punjab Govt./competent authorities for development of the project. On visits to the site several times, land on the spot was found barren one. Last date for allotment of the flat was extended first on 09.05.2014 upto 30.06.2014, then upto 15.09.2014 and further upto 31.12.2015. No construction work on the spot is carried out and that is why by claiming that OPs have adopted unfair trade practice, refund of the paid amount of Rs.4.00 lakhs with interest @ 18% per annum from the dates of deposits till realisation is claimed through complaint. Possession of the flat has not been delivered by OPs and nor the amount refunded despite numerous requests. Compensation for mental harassment and agony of Rs.1.00 lakhs, but Rs.50,000/- on account of deficiency in service due to adoption of unfair trade practice  and of Rs.25,000/- as litigation expenses are also claimed.   

2.             In reply filed by OPs it is pleaded inter alia as if complaint is time barred because after entering into agreement dated 26.11.2012, last payment of Rs.50,000/- was made on 23.03.2013, but present complaint filed on 20.07.2017 i.e. after period of four years. Reference to provisions of Article 54 and Section 27 of Indian Limitation Act as well as Section 24-A of Consumer Protection Act, 1986 specifically made for claiming that complaint is barred by limitation. Besides, it is claimed that complainant concealed his identity of being affluent member of the society, despite the fact that he got the flat booked meant for economically weaker sections of the society. Consent of OPs in entering into agreement dated 26.11.2012 was obtained by playing fraud. Construction and possession of the flat was limited to payment plan annexed with the agreement. As per Clause-3 of the agreement, in case any installment is not paid within 15 days from the stipulated date, then the earnest amount liable to be forfeited. Moreover as per Clause-7 of the agreement, complainant was to furnish documents in support of his claim regarding being belonging to economically weaker section of the society as prescribed by Punjab Govt. Complainant is not consumer because he is not member of economically weaker sections of the society as per specifications of Punjab Govt. and consent of OPs was obtained by fraud, as referred above. It is claimed that complainant has developed a novel idea for seeking refund of Rs.4.00 lakhs with interest and compensation, despite the fact that as per agreement, amount of Rs.3.00 lakhs deposited by complainant liable to be forfeited. Complainant was made aware of the installment plan through terms of the agreement itself, but complainant failed to stick to that plan. Even complainant failed to submit documents for showing his entitlement of belonging to economically weaker sections of the society. 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 thereafter his counsel closed evidence. On the other hand counsel for the OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Director 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.             Contents of affidavit Ex.CW-1/1 of complainant alongwith endorsements of receipts of amounts by OPs on back of Ex.C-1 establishes that an amount of Rs.4.00 lakhs has been deposited by complainant with OPs on four different dates during period from 09.08.2012 to 23.03.2013. Further perusal of agreement Ex.C-1 establishes that total price of booked one BHK flat having 450 sq. ft. area approximately was Rs.12,00,150/-. So it is obvious that complainant deposited not more than 30% of the sale consideration amount.

6.             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, particularly when complainant shown to have deposited some installments alone, but has not deposited the remaining installments as per schedule of payments worked out in Ex.C-1. Notice seeking refund of the paid amount dated 24.05.2017 Ex.C-2 was issued for the first time by complainant to OPs through registered post. Copies of postal receipts Ex.C-3 to Ex.C-5 in this respect are produced on record. In view of seeking of refund of deposited amount for the first time on 24.05.2017 through notice Ex.C-2, entitlement of complainant for interest @ 12% per annum will be with effect from this date.

7.             After going through Clause-6 of agreement Ex.C-1 relied upon by both the parties,  it is made out that in case flat/plot going to be sold to complainant, for any technical reason does not gets 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 Ex.C-1 itself provides that OPs yet to obtain sanctions from authorities and as such it is not a case in which any misrepresentation in that respect was made by OPs to complainant. If that be the position, then certainly submission of counsel for complainant has no force that OPs committed fraud with complainant by receiving amounts in question, despite the fact that requisite sanctions were not obtained by OPs at the time, when the amounts were received by them. Rather complainant was fully made aware of the fact that for the upcoming project in question, requisite sanctions yet to be obtained, but despite that complainant opted for booking of flat and as such reasonable inference that can be drawn is that complainant himself indulged in speculations, while depositing the amounts in question with OPs, 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 from the material produced on record.

8.             Though in Para No.9 (i) of affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Director of OPs, it is specifically mentioned that letter was issued by OPs to complainant for calling upon him to file certificate for showing that he belongs to economically weaker sections of the society, but neither that letter produced and nor copy of the same is produced on file. Assertion in that respect contained in Para No.9 (i) of affidavit Ex.OP-1/1 in this respect, as such is incorrect. Even if that be the position, despite that complainant through Clause-7 of agreement Ex.C-1 was made aware that it is his responsibility to comply with the conditions for availing benefit of economically weaker sections society flat allotted by OPs. So it was responsibility of complainant to prove that he actually belong to economically weaker sections of the society, but complainant has not produced any record to show that he belongs to economically weaker sections of the society as per norms fixed by Govt. of Punjab.

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 lays with complainant in view of non compliance with the obligation put on him under Clause-7 of the agreement

10.            Even if consent of OPs in entering into agreement Ex.C-1 may have been obtained by misrepresentation by complainant of his belonging to economically weaker sections of the society, despite that agreement at the most can be treated as voidable at the option of OPs in view of Sections 64 and 65 of Indian Contract Act. In case the agreement is void or liable to be treated as void at the option of one of the parties, then the person who has got the benefits under the agreement, liable to reimburse the other party for the benefits got under such agreement. In view of that, OPs certainly cannot retain the amounts received from complainant, but they are bound to refund the received amount of Rs.4.00 lakhs, particularly when they have not developed the project and nor carried the construction work on the spot.

11.            Dates for execution of the agreement stood extended from time to time, is a fact borne from copy of agreement Ex.C-1. These dates stood extended upto 30.06.2014 and then to 15.09.2014 and further to 31.12.2015 etc. is a fact borne from endorsements made on first page of the agreement Ex.C-1 itself. So, virtually both the parties agreed for providing of flat in question by OPs to complainant upto 31.12.2015. Despite these extensions, construction has not been carried out till filing of the complaint and as such also entitlement of complainant for refund of amount in question is there, even though Clause-3 of Ex.C-1 provides for forfeiture of earnest amount in the event of non payment of installments by stipulated dates or within 15 days beyond those stipulated dates. As OPs themselves remained at fault in not completing the project or carrying construction and as such they cannot be allowed to enforce Clause-3 of agreement Ex.C-1. Enforcement of this clause will enable OPs to get unjust enrichment which is not legally permissible. Even, keeping in view fault of complainant in not producing proof regarding his entitlement of economically weaker section of the society, as per specifications contained in Clause-7 of agreement Ex.C-1, equitable considerations demands that refund of deposited amount should be with interest @ 12% per annum from the date when first ever request for refund put forth through notice Ex.C-2.

12.            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 deposits 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.4.00 lakhs  out of total sale consideration of Rs.12,00,150/-. Complainant has deposited as such less than 30% 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 filing of this complaint only. 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. Present is not a case of cheating/fraud as projected by counsel for complainant in view of Clause-6 of agreement, discussed in detail above. 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 issuing notice Ex.C-2 and as such allowing of interest @ 12% per annum from the date of said notice will be reasonable, proper, equitable and just.

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.4,00,000/- with interest.

14.            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.

15.            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.

16.            As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.4,00,000/-    (Rs. Four Lakhs only) with interest @ 12% per annum from the date issue of legal notice dated 24.05.2017 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. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

October 18, 2018.

                                                                (G.K. Dhir)

                                                                President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member