DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.278 of 2017
Date of institution: 17.04.2017 Date of decision : 06.12.2018
Mangta Singh son of Shri Jarnail Singh, resident of village Dharak Kalan, 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 R.P. Sharma, counsel for OPs.
Order by :- Shri G.K. Dhir, President.
Order
Complainant agreed to purchase one BHK Flat No.1340, 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 22.12.2011, amount of Rs.10,000/- was paid by complainant. As per agreement, sum of Rs.3.00 lakhs was payable on 25.04.2011 and balance amount in 5 installments of Rs.1,80,000/- each. Amount of Rs.3.00 lakhs was paid through installments of Rs.1.00 lakh and Rs.2.00 lakhs on 17.04.2011 and 25.04.2011 respectively. Thereafter further amount of Rs.1,55,000/- was paid on 22.12.2011 and a sum of Rs.25,000/- was paid/adjusted by the OPs. Another amount of Rs.1,20,000/- was paid on 14.08.2012. OPs got the cheques encashed for receiving total amount of Rs.6,10,000/- 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 April 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.6,10,000/- alongwith interest @ 9% 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 complainant is not consumer as he has purchased the flat from open market from one Surinder Singh and OPs had not made any promise with the complainant. 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 14.08.2012 and thereafter remained silent for more than 4 years. Moreover, it is claimed that agreement dated 22.12.2012 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. OPs denied receipt of amount of Rs.6.00 lakhs on different dates, but admitted receipt of Rs.5,75,000/- only from the 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-6 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. Though initially complainant sought refund of Rs.8,25,000/- by claiming said amount to be paid, but later on by way of amendment of the complaint, it was specifically mentioned as if amount of Rs.6,10,000/- only paid by complainant to OPs. Even OPs through affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Director have acknowledged as if amount of Rs.8,25,000/- is received. So plea taken in affidavit Ex.OP-1/1 goes against stand of complainant through amended complaint regarding payment of Rs.6,10,000/- by him to OPs. Payment of Rs.6,10,000/- by complainant to OPs is established by endorsements of receipt by OPs on different dates. Those endorsements are part of agreement Ex.C-3. In addition there to an amount of Rs.10,000/- more was deposited by complainant with OPs through receipt Ex.C-2. So certainly payment of Rs.6,10,000/- alone is established in this case and as such complainant entitled for refund of this amount and not of the excess claimed amount. Even through notice Ex.C-4 sent by complainant to OPs, it is claimed as if around Rs.6,25,000/- paid by complainant to OPs and as such it is obvious that only refund of actual paid amount can be ordered, which is Rs.6,10,000/- only. Being so, complainant entitled for refund of deposited amount with interest @ 12% per annum from the dates of deposits 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.
6. 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, 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.
7. 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.
8. Even if assuming for arguments sake that consent of OPs in entering into agreements Ex.C-1 and Ex.C-3 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.6,10,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement.
9. 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.6,10,000/- with interest.
10. 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.
11. 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.
12. 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.
13. As a sequel of above discussion, complaint allowed by directing OPs to refund the received amount of Rs.6,10,000/- (Rs. Six Lakhs Ten Thousand only) with interest @ 12% per annum from the dates of deposits 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
December 06, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
(Mrs. Natasha Chopra)
Member
