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

Consumer Complaint No.321 of 2018

        Date of institution:  16.03.2018                 Date of decision   :  05.03.2019

 

1. Rajeshwar Singh son of Dile Singh

 

2. Mrs. Nisha Devi wife of Shri Rajeshwar

 

residents of village and P.O. Dhamrol, Tehsil Bhoranj, District Hamirpur (HP).

 

…….Complainants

Versus

 

1. The Managing Director, Bajwa Developers Limited, SCO No.17-18, Sunny Enclave, Desu Majra, District SAS Nagar, Mohali.

 

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 Rajesh Dhiman, counsel for complainants.

Shri Amit Sharma, counsel for OPs.

 

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

 

Order

 

 

                Complainants vide agreement of sale dated 30.03.2012 purchased one BHK BR No.1857 in Sunny Apartment situate in Sector 74-A, 117 Mohali for consideration of Rs.13,00,050/-. Rs.3,25,000/- out of this agreed amount paid by complainants to OPs, who assured to handover the possession. On request of OPs, time for execution of sale deed was extended to 15.10.2012 and then again to 15.12.2012. No building work carried on the spot, and even response to representations made by complainants not submitted by OPs at all. So it is claimed that OPs misappropriated the amount deposited by complainants and that is why legal notice dated 30.12.2017 was got served by complainants on OPs. Complainants claim to be entitled to refund of deposited amount with interest @ 12% per annum with effect from the dates of deposits till payment. Even CLU by GMADA authorities in favour of OPs granted on 19.05.2014, but buyers agreement was arrived at prior thereto. First application for getting license for establishing residential colony in question was submitted by OPs with authorities concerned on 05.07.2013 only. OPs failed to discharge their contractual obligations and as such by claiming that OPs adopted unfair trade practice, this complaint filed for seeking refund of deposited amount of Rs.3,25,000/- with interest @ 12% per annum. Litigation expenses of Rs.30,000/- and compensation of Rs.50,000/- more claimed. 

2. In reply submitted by OPs, it is claimed that complainants did not disclose about their being domicile of Himachal Pradesh. Flat was meant for economically weaker sections of the society and the same was to be allotted on submission of income tax certificate showing income of complainants from all sources being less than Rs.3.00 lakhs per annum as well as domicile certificate showing complainants to be residents of Punjab State. These certificates not submitted and nor any affidavit submitted by complainants for showing that they or their spouses or dependent children do not own any other plot/flat in the vicinity of Mohali, Chandigarh and Panchkula. Admittedly complainants paid amount of Rs.3,25,000/- as earnest amount out of agreed sale consideration of Rs.13.00 lakhs. Complainants themselves sought extension of time for furnishing requisite certificates and those extensions were granted by OPs. A letter was issued to complainants for asking them to comply with the requirements contained in Clause-7 of terms and conditions of agreement of sale, but they failed to do so as aforesaid. Flat to be allotted to complainants was allotted on subsidized price after finding complainants to be belonging to economically weaker sections of the society. Reference to notification No.21/4/2014-1HgII/1891 with clauses 2.1 to 2.4 issued by Govt. of Punjab, Department of Housing specifically made for claiming that relationship of service provider and consumer do not exist between the parties. As complainants themselves failed to fulfill conditions laid down in Clause-7 of agreement and as such it is claimed that OPs have been unnecessarily dragged in litigation. Last transaction took place on 30.03.2012, but this complaint filed in 2018 even though period of limitation prescribed for filing complaint was to expire on 30.03.2015 as per Article 24 of Indian Limitation Act, 1963. Other averments of the complaint denied. 

3. Complainants to prove their case tendered in evidence affidavit Ex.CW-1/1 of complainant No.1 alongwith document Ex.C-1 to Ex.C-3 and Mark-A and then 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. Endorsements on agreement of sale Ex.C-1 itself establishes that an amount of Rs.3.25,000/- has been received by OPs from complainants on 22.03.2012 and 26.03.2012. Factum regarding receipt of Rs.3,25,000/- even not denied by OPs in their written reply or in the submitted affidavit Ex.OP-1/1. So complainants able to establish that actually they paid Rs.3,25,000/- to OPs in consideration of execution of agreement Ex.C-1, as per which they were to get one BHK flat No.1857 having area of 450 sq. ft. approximately. 

6. After going through agreement Ex.C-1, it is made out that earnest amount of Rs.3,25,000/- was to be paid on 29.03.2012 and the balance amount was payable in 5 equal installments of Rs.1,95,000/- each on 29.07.2012; 27.11.2012; 29.03.2013; 29.07.2013 and 29.09.2013. However, complainants after paying Rs.3,25,000/- earnest amount have not deposited any amount and as such it is vehemently contended by counsel for OPs that complainants did not stick to payment plan schedule, on account of which they are not entitled to claim any relief. Even if balance amount has not been paid by complainants to OPs, but despite that endorsements regarding extension of time upto 21.08.2012, then upto 18.09.2012, then upto 15.10.2012 and further upto 15.12.2012 are made on agreement Ex.C-1 itself. These endorsements were made with the concurrence of OPs and as such now OPs estopped by their act and conduct from claiming that on account of payment not made by complainants as per schedule of payment, complainants debarred from filing this complaint. Rather act of grant of extensions in time, amounts to condonation of fault of complainants in not sticking to payment schedule. 

7. It is claimed by counsel for complainants that CLU for the land on which the project to be developed was got by OPs only on 19.05.2014 but payments accepted before that and as such OPs committed violation of provisions of PAPRA Act. Submission of counsel for complainants in this respect certainly has force because approvals from GMADA shown to be obtained on 19.05.2014, but payments in question accepted atleast more than two years prior thereto. In view of violation of Sections  3, 6 and 12 of PAPRA Act read with Rule 17 thereof, complainants 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.  

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 (complainants) 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 complainants was subject to fulfillment of terms and conditions requisite for allotment of flat to EWS category. Even if complainants failed to submit the requisite declaration for showing their 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 complainants is of EWS category and as such for getting benefit of EWS Housing Scheme, certificate of annual income of complainants, 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 complainants 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 complainants, 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 complainants by misrepresentation of their being belonging to economically weaker section category, despite that entitlement of complainants for refund of deposited amount is there in view of Sections 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.3,25,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement. 

11. Complainants certainly are consumers of OPs within meaning of Section 2 (1) (d) of CPA because they 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 complainants that OPs have not developed the project and as such fault lays with OPs in not fulfilling promise of delivering the possession to complainants. For that fault of OPs, complainants cannot be made to suffer and as such on equitable considerations also, complainants entitled for refund of paid amount of Rs.3,25,000/- 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 with 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 complainants 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 amount from complainants, 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 complainants 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.3,25,000/- (Rs. Three Lakhs Twenty Five Thousand 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 complainants 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

March 05, 2019.

(G.K. Dhir)

President

 

 

 

(Mrs. Natasha Chopra)

Member