DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.1085 of 2017
Date of institution: 19.12.2017 Date of decision : 11.06.2019
Dr. Ramandeep Kaur wife of Dr. Gurbinder Singh Suri, aged 44 years approximately, resident of House No.2071, Sector 21-C, Chandigarh.
…….Complainant
Versus
1. The Managing Director, Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali presently having the office at Sunny Business Centre, Sunny Enclave, Sector 125, Near KFC, 5th Floor, Kharar, Desu Majra.
2. The Manager (Sales), Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri Pankaj Maini, counsel for complainant.
Shri Amit Sharma, counsel for OPs.
Order by :- Shri G.K. Dhir, President.
Order
One BHK Flat BR No.(355) 1355 having value of Rs.12,52,000/- with area of 450 sq. ft. (approx), was booked by complainant and thereafter an agreement dated 08.05.2011/17.04.2011 was arrived at between the parties. Complainant paid first installment of Rs.1.00 lakh on 17.04.2011 and she further paid Rs.1.00 lakh on 21.04.2011; Rs.1,12,500/- on 07.05.2011 and Rs.25,000/- on 10.05.2011. In this way complainant paid total amount of Rs.3,37,500/- for this flat situate in Sector 74-A, 117 of Mohali. Even upto the end of 2012, OPs were not having permissions from GMADA authorities for setting up residential colony in question. Rather requisite sanctions from GMADA obtained only on 19.05.2014 subject to getting of approvals from other statutory bodies. Residential colony could have been constructed only after obtaining requisite sanctions which were not obtained and as such this malicious act of OPs was with intent to defraud hapless customers for depriving them of their hard earned money. Complainant being doctor is working in Sector 6 Panchkula and her husband also is a doctor in Army in transferable job. Daughter of complainant is also studying in Chandigarh. Flat offered by OPs suits to requirements of complainant and that is why it was purchased. False assurances had been given by OPs consistently for defrauding customers like complainant and as such by claiming that OPs adopted unfair and restricted trade practice, this complaint filed for seeking refund of paid amount with interest @ 15% per annum alongwith compensation for mental agony and harassment of Rs.2.00 lakhs and punitive damages of Rs.3.00 lakhs. Besides it is claimed that OPs have not obtained sanctions from Fire Safety Department, Sanitary Department, Electricity Department and Water Works Department and as such they were not in a position to provide amenities. Though assurances for providing world class infrastructure were made, but everything remained in air because OPs failed to put even a single brick on the site after lapse of more than 5 years from the date of execution of agreement.
2. In reply filed by OPs, it is claimed as if relationship of consumer and service provider do not exist; complaint is barred by limitation; breach of terms of contract committed by complainant, due to which complainant not entitled to claim damages and that this Forum has no jurisdiction. Admittedly complainant got booked flat in question for sale consideration of Rs.12.52 lakhs, but by paying Rs.3,37,500/- as earnest amount. Flat in question was meant for economically weaker sections of the society at subsidized rates, but on submission of income certificate obtained from competent authority showing that income of complainant does not exceed Rs.3.00 lakhs per annum and also subject to production of domicile certificate of Punjab State by complainant as well as affidavit to the effect that complainant or her spouse or dependent children do not own any other flat/plot/house in the vicinity of Mohali, Chandigarh and Panchkula. Such certificate not submitted and as such in view of violation of Clause-7 of terms and conditions of agreement, complainant not entitled to any relief, more so when she has not paid balance sale consideration amount and nor deposited requisite certificates/affidavit, despite being repeatedly asked. Complainant entered into agreement for purchase of flat meant for economically weaker sections of the society in fraudulent manner. In view of concession granted by OPs, relationship of consumer and service provider do not exist, more so when violation of Clauses 2.1 to 2.4 (referred in detail in written reply) of notification No.21/4/2014-IHgII/1891 of Govt. of Punjab, Department of Housing committed by complainant. Other averments of the complaint denied, but by claiming that complaint filed on 19.12.2017 i.e. after lapse of more than 6 years of execution of agreement and as such in view of Article 24 and Article 54 of Limitation Act, complaint barred by limitation, more so when period of limitation stood expired on 10.05.2014. Reference to Section 27 of Indian Limitation Act, 1963 also made.
3. Complainant to prove her case tendered in evidence her affidavit Ex.CW-1/1 alongwith documents Ex.C-1 and Ex.C-2 and thereafter her counsel closed evidence. On the other hand counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Baldev Singh Bajwa, Director and thereafter closed evidence.
4. Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.
5. From pleadings of the parties and the submitted affidavits Ex.CW-1/1 and Ex.OP-1/1, it is made out that agreement Ex.C-1 was arrived at between parties, as per which one BHK flat was to be purchased by complainant at sale consideration amount of Rs.12,52,000/-, out of which Rs.3,37,500/- paid by complainant to OPs. Besides admission suffered in written reply and affidavit Ex.OP-1/1 and endorsements on agreements in the hands of Shri J.S. Bajwa, Managing Director of OPs itself establishes as if amount of Rs.3,37,500/- received by OPs from complainant.
6. Full amount of Rs.12,52,000/- was payable in six installments as per Clause-2 of agreement Ex.C-1, but complainant paid amount of Rs.3,37,500/- only i.e. amount of earnest money and part of first installment and as such it is vehemently contended by counsel for OPs that in view of non payment of balance amount of 4 installments, complainant committed default in making payment, due to which amount in question liable to be forfeited in view of Clause-3 of agreement. However, submission of counsel for complainant alongwith contents of letter Ex.C-2 establishes that requisite sanctions from GMADA were obtained by OPs on 19.05.2014 subject to terms and conditions incorporated in Ex.C-2. However, amounts in question accepted from complainant in 2011, as referred above and as such virtually amounts in question accepted by OPs from complainant even prior to obtaining of requisite sanctions/approvals from competent authorities. Being so, violation of Sections 3 and 5 of PAPRA Act committed by OPs, due to which they are liable for refund of amount deposited by complainant with interest @ 12% per annum from the dates of deposit till payment in view of Section 12 of PAPRA Act read with Regulation 17 of PAPRA Regulations. Reliance for this purpose also can be placed on 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.
7. As requisite sanctions/approvals from GMADA authorities obtained in May, 2014 and as such construction or development works could not have been carried by OPs till then. Being so, case of complainant fully believable that OPs have not started construction on the spot and nor they have carried on any development works resulting in unnecessary harassment of complainant at the hands of OPs. As such complainant entitled to compensation for mental agony and harassment.
8. 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 her 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.
9. 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.
10. 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.3,37,500/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in the agreement Ex.C-1.
11. 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.3,37,500/- with interest.
12. Benefit from ratio of case titled as State of Gujarat Vs. Rajesh Kumar Chiman Lal Barot, AIR 1996 SC 2664 cannot be availed by OPs because of existence of relationship of consumer and service provider between parties in the case in hand. In view of existence of that relationship, this Forum has jurisdiction. Ratio of cited case applicable when the court concerned has no jurisdiction. However, this is not the position in this case. Even benefit from ratio of case titled as Maheswar Patra Vs. Block Development Officer, Panchayat Samiti, Gosani, III (2011) CPJ 480(NC) cannot be got by counsel for OPs because after going through reported case, it is made out that State Govt. refused to supply monthly ration and essential commodities except kerosene in the reported case. That monthly ration of essential commodities to be supplied while discharging executive functions of the Govt. and not on account of existence of contractual obligations consisting of the element of passage of consideration in lieu of goods supplied or services to be rendered. However, in the case before us part of the price amount accepted by OPs from complainant in consideration of allotting one BHK flat and as such facts of the reported case are quite distinguishable than those of the case before us.
13. 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.
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.3,37,500/- (Rs. Three Lakhs Thirty Seven Thousand Five Hundred only) with interest @ 12% per annum from the dates of deposits till payment. Compensation for mental agony and harassment of Rs.25,000/- (Rs. Twenty Five 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 the complainant will be entitled to interest @ 7% per annum on the amounts of compensation and litigation expenses from today till payment. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
June 11, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
