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

Consumer Complaint No.782 of 2016

                                                Date of institution:  24.11.2016                                             Date of decision   :  05.02.2019

Baljit Singh son of Shri Devi Ram, resident of House No.2605/ 1^st Floor, Sector 38-C, Chandigarh.

…….Complainant

Versus

1.     M/s. Singla Builders and Promoters Ltd., Corporate Office, SCO No.146-147-148, Sector 43-B, Chandigarh through its Director/MD/Authorised Representative.

2.     Shri Amandeep Singla, Director, Singla Builders and Promoters Ltd., Corporate Office, SCO No.146-147,148, Sector 43-B, Chandigarh through its Director.

3.     M/s. Singla Builders and Promoters Ltd., Village Desumajra, Chandigarh-Kharar High Road,  Kharar, District SAS Nagar, Mohali through its Director/MD/Authorised Representative.

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Shri Karun Kumar, counsel for complainant.

                Shri Amandeep Bindra, counsel for OPs.

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

Order

                Complainant, after agreeing to purchase Flat No.125, 1^st Floor in project SBP North Valley situate at Village Santemajra, Tehsil Kharar, District Mohali for his residential purposes, paid an amount of Rs.2,28,750/-, out of price of Rs.15,25,000/-. Complainant availed loan facility from HDFC Bank Ltd., Sector 8, Chandigarh for amount of Rs.11,41,133/- for making payment of balance amount. Complainant from time to time has deposited Rs.14,31,250/-  towards full and final payment. Agreement of sale dated 16.09.2011 was executed between parties. OPs assured to hand over possession of the flat in June, 2013. An amount of Rs.67,000/- has been withheld by bank on plea that same would be paid at the time of execution of sale deed. Possession of flat was neither given and nor offered by OPs despite repeated requests submitted from time to time. That caused huge financial loss, mental harassment and humiliation to complainant. Complainant received letter dated 21.01.2015 from OPs for calling upon him to clear the balance amount of Rs.88,950/-. However, possession of the flat was not offered or given to complainant on pretext that dues are still lying pending. Another letter dated 17.06.2015 was received by complainant from OPs through which demand of Rs.1,76,160/- was raised. Details of due amounts were not given, despite the fact that two day’s time was given to complainant for doing needful. Period of two days was very short and as such virtually for denying possession of flat, formality was done by OPs by issue of this letter of 17.06.2015. Even threat for cancellation of flat without prior notice was made through this letter. When complainant visited Chandigarh office of OPs, then an official of OPs disclosed as if flat has already been cancelled by OPs. This letter was issued by OPs without following terms and conditions of agreement of sale. Pressure was put on complainant for having flat in Anand Vihar, Dera Bassi or at SBP Home near LIC Colony, Kharar, but complainant flatly refused that offer. Exaggerated amount in the shape of installments was demanded from complainant, but without handing over possession. Complainant, on enquiry from neighbourers living adjacent to the flat in question came to know as if flat has been let out to some person and OPs have been deriving profit from this flat since from long. By claiming that OPs have violated terms and conditions of agreement of sale and after serving legal notice dated 05.09.2016 as well as earlier letter through registered post on 17.03.2016 and finding that no response received till date, this complaint filed by pleading deficiency in service on part of OPs for seeking direction to OPs to give details of payments received by them from time to time as well as to reconcile the accounts, so that complainant may be able to do needful. Even direction to OPs sought to handover possession of the flat in question. Compensation of Rs.2,50,000/- sought on account of non handing over of possession of flat as per assurance. Compensation for mental agony and harassment of Rs.1.50 lakhs and litigation expenses of Rs.50,000/- more claimed.

2.             In joint reply submitted by OPs it is pleaded inter alia as if  complaint has been filed on false and mischievous facts for harassing OPs, so that they should bow to pressure of  unwarranted demands put forth by complainant. Construction in question was started by OPs after obtaining requisite approvals from concerned authorities. However, complainant failed to release payments as per schedule, despite the fact that numerous letters/demand notices/legal notice with regard to flat No.125, SBP North Valley was served by OPs on complainant. Complainant approached OPs for expressing his inability to make scheduled payments and sought more time for making payments. Even complainant represented that he was looking for suitable buyer of property for further sale. OPs granted more time to complainant to make payment, but he failed to do so and as such complaint alleged to be barred be principle of estoppel, waiver and acquiesce. This complaint alleged to be filed in counter blast to issued demand notices by OPs to complainant from time to time. As OPs were left with no other alternative after issue of various notices/letters and as such they were constrained to cancel the allotment and forfeit earnest amount. OPs are still ready to refund balance amount after forfeiture of earnest amount, as per terms and conditions stipulated in the agreement of sale. That fact is within knowledge of complainant, but despite that this complaint filed with ulterior motive. On one occasion, complainant refused to accept the amount, despite being offered by OPs. Now no ground left with complainant to seek possession of the flat because cancellation of same had already taken place after following due process.  This flat has been re-allocated to another customer. Complainant has suppressed material facts from this Forum and this complaint alleged to be filed by complainant for getting benefit of his own wrongs. In view of involvement of intricate questions of law and facts, matter deserves to be got decided from civil court of competent jurisdiction. Moreover, complaint alleged to be bad due to non joiner and mis-joinder of parties, more so when no cause of action accrued in favour of complainant. Factum of booking of flat and of deposit of amounts admitted. However, payments remained short and delayed despite demand put forth through letter dated 17.06.2015. Even after elapse of six months period from issue of letter dated 21.01.2015, balance payment was not made by complainant and as such prayer made for dismissal of this frivolous complaint.

3.       Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-10 and then closed evidence.  On the other hand counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Ashok Kumar, Director of OPs alongwith documents Ex.OP-1 to Ex.OP-14 and thereafter closed evidence.

4.             Written arguments not submitted. Oral arguments heard and records gone through.

5.             From the pleadings of parties and submitted affidavits, it is made out that complainant booked flat in Sector 125, in North Valley, Village Santemajra, Tehsil Kharar with OPs and thereafter agreement Ex.C-2 was executed between parties. Plea taken in the complaint regarding deposit of Rs.14,31,250/- on different dates by complainant with OPs not denied in the corresponding para of reply. Rather admission of same is made in written reply as well as in the submitted affidavit and the same fact even borne from contents of Ex.C-1 showing as to when amounts were deposited. Details of those deposited amounts in view of contents of Ex.C-1 are worked out below:

6.             Total worth of the flat was Rs.15,25,000/-, is an admitted fact and same even borne from contents of agreement of sale Ex.C-2. So it is obvious that complainant has not deposited entire basic sale price of the flat in question.

7.             After going through agreement of sale Ex.C-2, it is made out that earnest amount of Rs.2,28,750/- was to be deposited on 13.09.2011 and thereafter equal installments of Rs.2,28,750/- each were to be deposited by 13.12.2011; 13.03.2012; 13.07.2012; 13.11.2012 and 13.03.2013 as per schedule of payment worked out in agreement Ex.C-2 itself.  Besides another amount of Rs.1,52,500/- was to be paid on 30.06.2013 or on possession. So certainly submission advanced by counsel for complainant has force that date for delivery of possession was 30.06.2013. Even if this date for delivery of possession may have been mentioned in agreement of sale, despite that payments of amounts referred in the above schedule were not made on the dates mentioned in the schedule of payments in Ex.C-2. So certainly fault lay with complainant in not depositing the amounts as per schedule of payments worked out in agreement of sale Ex.C-2. Even if these deposits were not made initially by stipulated dates, despite that amounts were accepted from complainant on 20.07.2013 and 19.08.2014 also as referred in the above worked out table and as such it is obvious that OPs acquiesced in the conduct of complainant in making payments beyond stipulated scheduled dates. However, it has to be held that actually complainant has not paid the entire sale consideration amount, but has deposited the amount of Rs.90,000/- less than that of stipulated basic sale price. Fault in that respect certainly remains on the part of complainant in not sticking to terms and conditions of agreement of sale. For that fault of complainant alone, OPs cannot retain the amounts deposited by complainant with them because in case it is so ordered, then it will amount to allowing OPs to have unjust enrichment.

8.             Clause-10 of buyer agreement Ex.C-2 itself establishes that possession was to be delivered of the flat on or before 30.06.2013, but in case offer of possession not made by this date due to any reason not beyond control of OPs, then OPs will be liable to pay to the allottee (complainant) compensation @Rs.3/- per sq. ft. per month of the super area till date of offer of possession. In view of this clause and in view of the fact that cancellation of allotted flat has been done by OPs at their own after serving notices Ex.OP-2, Ex.OP-4, Ex.OP-5, Ex.OP-6, Ex.OP-8, Ex.OP-10 and Ex.OP-12 through courier in respect of which receipts are produced as Ex.OP-3, Ex.OP-7, Ex.OP-9, Ex.OP-11 and Ex.OP-13, it has to be held that OPs contemplated to adopt the process before cancellation of flat in question. However, final notice for cancellation of flat has not been issued, but above referred notices issued just for calling upon complainant to make certain payments failing which cancellation of agreement will take place. So it has to be held that final cancellation of allotment done by OPs without informing complainant about this cancellation. Through final notice Ex.OP-12 sent through courier receipt Ex.OP-13, OPs called upon complainant to deposit arrear amount of Rs.2,22,500/- and get possession, but in case it is not done, then OPs will have no option except to forfeit the earnest amount alongwith due payable interest on the delayed payments.  In this final notice Ex.OP-12 it is mentioned that in the event of non payment of arrears of Rs.2,22,500/-, agreement has been rescinded/cancelled in all respects and thereafter complainant will have no right or claim whatsoever regarding the property. Complainant was called upon through this Ex.OP-12 to visit office of OPs on any working day for final account settlement. However, final detail of amounts not given by OPs to complainant, despite issue of notice of such settlement Ex.OP-12 and as such fault lays with OPs in not giving appropriate time to complainant to make out as to whether demanded amount actually is due from him or not. Such details even not given through notice Ex.OP-10, though these were earlier given through notices Ex.OP-8, Ex.OP-6, Ex.OP-5, Ex.OP-4 and Ex.OP-3. So virtually cancellation of flat done by issue of notice only and not through process of any Forum/Court. That unilateral action of cancellation of flat by OPs will not entitle them to forfeit earnest amount and as such plea taken in this respect is not sustainable. Though in Clause-2 of agreement Ex.C-2, it is mentioned that OP company entitled to forfeit the amount without notice to the allottee, but at the same time it has also been mentioned in this clause itself that payment schedule is essence of this agreement and has to be followed by the allottee strictly. So virtually Clause-2 provides that installment plan has to be adhered to by complainant. However, as already referred above, OPs themselves gave latitude to complainant to make payments even after scheduled dates and as such waiver of this clause virtually took place due to action of OPs in accepting installments amount even after stipulated dates.  That latitude given by OPs now denudes them from claiming that time of payment of installments was essence of agreement. In view of this, on equitable considerations also, forfeiture of paid amount by complainant is not warranted. Clause-10 of agreement Ex.C-2 provides that possession of the flat to be delivered only after receipt of all payments including interest and free maintenance security etc. from complainant. So in case possession has not been handed over by OPs to complainant, then due to that fault to OPs cannot be attributed, more so when complainant has not paid full amount of sale price. As the flat in question has been re-allocated by OPs to somebody else and as such in view of fault of complainant in not sticking to payment plan, he is estopped from claiming possession because of stipulations in Clause-10 of agreement Ex.C-2 of obligations of OPs to handover possession only after receipt of full payment including interest and maintenance security etc. Violation of this condition being committed by complainant denudes him from claiming possession.

9.             Clause-10 of agreement Ex.C-2 also provides that as soon as OPs notify completion of building, being ready for occupation, then allottee will pay all the arrears demanded by Company within 30 days of intimation by Company. That intimation virtually was given through above referred notices Ex.OP-2, Ex.OP-4 etc. because offer of possession was given through these notices. So OP Company cannot be said to have violated this condition. Further in view of Clause-17 of agreement Ex.C-2, OPs became entitled to cancel allotment without further notice and claim liquidation damages and the earnest amount specified in the allotment letter. However, strict enforcement of this clause not warranted, more so when OPs themselves gave latitude to complainant to deposit installments beyond stipulated scheduled dates. As cancellation of allotment has taken place and the flat has been re-allocated to someone else, who is not made a party to this complaint and nor the name of that subsequent allottee disclosed by any of the parties and as such in such circumstances, relief for possession cannot be granted at the back of the party, who has come in occupation of re-allocated flat in question. Sections 64 and 65 of Indian Contract Act provides that as and when an agreement becomes void or is declared voidable by way of cancellation or otherwise, then party who has got benefits under the agreement, liable to refund the benefits received under it to the party, from whom those were got by the party claiming rescission of agreement. In view of this, OPs are not entitled to retain the received amount, more so when fault also lays with them in not sticking to terms and conditions of agreement referred above and they cancelled the agreement at their own without intervention of any court/Forum. Complainant stood divested of hard earned money paid by him to OPs for sufficiently long period and OPs utilized this amount and as such equitable consideration demands that in view of Sections 6 and 12 of PAPRA Act, 1995 read with Rule 17 framed thereunder and 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,  it is fit and appropriate to direct OPs to refund received amount of Rs.14,31,250/- with interest @ 12% per annum from the dates of deposits till payment. However, in view of fault committed by complainant in not paying the entire amount, it is fit and appropriate not to allow costs of litigation and compensation for harassment, even though complainant paid the amount after availing loan from HDFC Bank.

10.            No other pointed argued.

11.            As a sequel of above discussion, complaint allowed with direction to OPs to refund received amount of Rs.14,31,250/- (Rs. Fourteen Lakhs Thirty One Thousand Two Hundred Fifty only) with interest @ 12% per annum from the dates of deposits till payment. No order as to costs and compensation. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

February 05, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member