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

Consumer Complaint No.240 of 2018

                                                Date of institution:  22.02.2018                                             Date of decision   :  04.02.2019

Neeraj Kumar son of Shri Santokh Raj, resident of 93, Gali No.06, Dashmesh Colony, Balongi, District SAS Nagar (Mohali).

…….Complainant

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 Kumar Dhiman, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

               Shorn off unnecessary details, case of complainant is that vide agreement dated 19.04.2012, he purchased one BHK BR No.1869, F21, Mohali Sector 74-A, 117 having area of 450 sq. ft. for total consideration of Rs.13,00,050/-. Rs.1.00 lakhs were paid by complainant on 22.03.2012; Rs.35,000/- on 13.04.2012; Rs.1,06,000/- on 13.04.2012 and Rs.84,000/- on 13.04.2012. So total amount of Rs.3,25,000/- has been paid by complainant to OPs. Assurance was given by OPs to built up the apartment and hand over possession finally by 18.09.2012. That time subsequently stood extended upto 15.10.2012 and further to 15.12.2012. The building has neither  been erected and nor any work on the project started by OPs and as such complainant was forced to get legal notice dated 30.12.2017 issued through counsel. It is claimed that OPs after collecting money deliberately have not rendered due services of handing over possession of the flat and as such by claiming that OPs adopted unfair trade practice, prayer made for directing OPs to refund the received amount of Rs.3,25,000/- with interest @ 12% per annum from dates of payments till date.  Litigation expenses of Rs.30,000/- and compensation of Rs.50,000/- more claimed.

2.             In reply submitted by OPs, it is claimed that relationship of consumer and service provider does not exist between parties because complainant failed to submit income certificate as per requirement of allotment of flat in question to economically weaker sections of the society. Even complainant failed to submit domicile certificate. Flat was sold at subsidized price as per Section 5 (9) of Punjab Apartments & Property Regulation Act, 1995. Complaint also alleged to be barred by limitation in view of Section 24-A of Consumer Protection Act because last transaction took place on 13.04.2012, but this complaint filed in 2018 i.e. beyond period of more than three years of expiry of limitation. This Forum alleged to be having no jurisdiction. Admittedly agreement was arrived at, but it is claimed that complainant was made aware regarding requirement of submission of certificate of his income not exceeding Rs.3.00 lakhs per annum from all sources etc.  Admittedly, agreement in question was arrived at. Compliance of condition No.7 of agreement not made by complainant himself, despite issue of letter for calling upon him to submit the requisite certificate. As complainant does not belong to economically weaker section of the society, but he entered into agreement for purchase of flat fraudulently and as such due to misuse of concession, relationship of consumer and service provider not alleged to be existing. Reference to Notification No.21/4/2014-1HgI/1891 issued by Govt. of Punjab, Department of Housing also made for determining the eligibility criteria for allotment of apartments/plots to economically weaker sections of the society. Reference to clauses 2.1 to 2.4 of said notification specifically made. Other averments of the complaint denied.

3.       Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith document Ex.C-1 to Ex.C-3 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 by any of the parties. Oral arguments heard and records gone through.

5.             Complainant to prove payment of Rs.3,25,000/- to OPs has produced agreement Ex.C-1 containing endorsements of receipts of amounts.  These endorsements bear stamp of OPs alongwith signatures of Shri J.S. Bajwa, Managing Director. As per these endorsements, Rs.1.00 lakh was paid by complainant to OPs on 22.03.2012; Rs.35,000/- on 13.04.2012; Rs.1,06,000/- on 13.04.2012 and Rs.84,000/- on 13.04.2012. Denial of this fact not made in the written reply or in the submitted affidavit of representative of OPs and as such complainant certainly able to establish that he actually paid Rs.3,25,000/- to OPs in consideration of execution of agreement Ex.C-1.

6.             After going through agreement Ex.C-1, it is made out that complainant was to pay entire sale consideration amount in 5 installments in addition to payment of earnest amount of Rs.3.25 lakhs. However, complainant has paid Rs.3.25 lakhs only being the earnest amount and as such it is vehemently contended by counsel for OPs that fault lay with complainant in not sticking to payment plan schedule. Even if such fault may be there on part of complainant, despite that fault lay with OPs in not obtaining requisite sanctions from concerned departments before acceptance of above referred amounts from complainant. It is the case of complainant put forth through complaint and submitted affidavit Ex.CW-1/1 that OPs applied for issue of license for setting up residential colony in question on 05.07.2013 and thereafter letter dated 19.05.2014 was issued in favour of OPs only. Certainly OPs accepted payments without obtaining sanctions requisite for start of project in question in which apartment for complainant was to be constructed.
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. 

7.             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.

8.             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.

9.             Even if assuming for arguments sake that consent of OPs in entering into agreement Ex.C-1 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.3,25,000/- at all, even if Clause-3 regarding forfeiture of earnest amount may be there in this agreement.

10.           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.3,25,000/- with interest.

11.            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.

12.            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.

13.            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.

14.            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.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 failing which OPs will be liable to pay interest on the compensation and litigation amounts @ 7% per annum 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

February 04, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member