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

Consumer Complaint No.1000 of 2017

                                                Date of institution:  20.11.2017                                             Date of decision   :  05.12.2018

Ram Shankar Pradhan son of Mr. Mangleshwar Pradhan, resident of 523, Phase-4, Mohali.

Correspondence Address:

Ram Shankar Pradhan son of Mr. Mangleshwar Pradhan, c/o M/s. Accurate Graphics, E-93, Industrial Area, Phase-7, SAS Nagar, Mohali.

…….Complainant

Versus

1.     The Managing Director,  Bajwa Developers Limited, 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.

3.     Shri Jarnail Singh son of Bishan Singh, Managing Director,  Bajwa Developers Limited, 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,

                Shri Amrinder Singh Sidhu, Member.

                Mrs. Natasha Chopra, Member.

Present:     Shri Pawan Kumar Sharma, counsel for complainant.

                Shri Amit Sharma, counsel for OPs.

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

Order

               Complainant purchased flat consisting of one BHK BR No.1535 having area of 450 sq. ft. approximately for personal necessity by agreeing to pay total sale consideration amount of Rs.12.00 lakhs. Agreement dated 15.03.2013 was arrived at, as per which final payment was to be made on or before 15.09.2014 i.e. the  date of delivery of possession. Complainant paid Rs.3.50 lakhs in all till date. Complainant came to know as if requisite permissions from GMADA for construction of colony in Sector 117, 74-A, SAS Nagar (Mohali) have not been obtained by OPs from GMADA. Despite this, OPs have received above referred amount with malafide intention to defraud hapless customers like complainant. After receipt of initial amount of Rs.3,50,000/- requisite permissions from statutory authorities have not been obtained and as such it is claimed that OPs adopted unfair trade practice, due to which this complaint filed for seeking refund of the deposited amount alongwith compensation.

2.             In reply filed by OPs, it is pleaded inter alia as if relationship of consumer and service provider do not exist and complainant himself is at fault in not submitting the domicile certificate from competent authority for showing his entitlement to allotment of EWS category of flat. Admittedly agreement dated 15.03.2013 was arrived at for sale of one BHK flat due to which complainant paid Rs.3,50,000/- as earnest amount. Complainant failed to perform his part of obligation of showing his income upto Rs.3.00 lakhs per annum as well as of submission of domicile certificate and affidavit of not possessing any other flat/plot in the vicinity of Mohali/ Chandigarh/Panchkula.  Complainant failed to prove his identity of belonging to EWS category and even he failed to pay balance amount as per schedule. Letter was issued to complainant for asking him to file certificate showing about his belonging to EWS category of society, but he did not submit the certificate. Eligibility criteria for allotment of apartments/plots for EWS category of society is laid down in notification No.21/4/2014-IHgII/1891 issued by Govt. of Punjab, Department of Housing. Claim of complainant is time barred because agreement was entered into on 15.03.2013 and this complaint filed on 20.11.2018 (in fact the date is 20.11.2017) i.e. after lapse of 5 years. Reference to Article 54 of Indian Limitation Act read with Section 27 thereof and Section 24-A of Consumer Protection Act specifically made in this respect. Other averments of the complaint denied.

3.             Complainant to prove his case tendered in evidence his affidavits Ex.CW-1/1 and Ex.CW-1/2 alongwith document Ex.C-1 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.             From pleadings of the parties and the submitted affidavits, there remains no dispute that one BHK flat was got booked by complainant with OPs by paying Rs.3.50 lakhs in all. Endorsements of receipt of this amount by OP exist at Page 2 of agreement Ex.C-1. So dispute in this respect does not remain.

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.3.00 lakhs. However, complainant has paid Rs.3.50 lakhs only 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 OPs have not obtained requisite sanctions/approvals for start of the project in question from various departments like Fire Safety Department; Sanitary Department; Electricity Department and Water Works Department and as such certainly OPs not in a position to provide basic amenities in the project in question. Plea taken in the complaint and affidavit Ex.CW-1/1 of the complainant in this respect is not specifically denied through affidavit Ex.OP-1/1 and as such it is obvious that fault lay with OPs in not getting approvals from concerned authorities.
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.3,50,000/- 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.3,50,000/- 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.3,50,000/- (Rs. Three Lakhs Fifty 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 05, 2018.

                                                                (G.K. Dhir)

                                                                President

(Amrinder Singh Sidhu)

Member

(Mrs. Natasha Chopra)

Member