1.

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 513 of 2015

Date of Institution: 18.8.2015

Date of Decision: 11.7.2016  

Sandeep Singh son of S. Swaran Singh, resident of Village Boharwala, Post Office Mohan Bhandarian, Tehsil Ajnala Distt. Amritsar

Complainant

Versus

Amritsar Improvement Trust, Amritsar through its Chairman/Administrator , Ranjit Avenue, Amritsar

Opposite Party

Complaint under section 12 & 13 of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant              : Sh.Gautam Majithia, Advocate

              For the Opposite Party                    : Sh.Neeraj Brahmi,Advocate

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.S.S. Panesar, President.

1.       Sandeep Singh has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that  opposite party floated a scheme  and allotted the shops to different persons in Nehru Shopping Complex Scheme, Amritsar. In the said scheme, complainant was also allotted one shop cum office bearing No. 77GF in Nehru Shopping Complex Scheme, Amritsar vide allotment  No. AIT/SS/268 dated 11.1.2005. Copy of the allotment letter is enclosed. Thereafter complainant as per the allotment letter, deposited all the installments  with interest in the office of opposite party against receipts and after clearance of the entire dues of installments and interest amount, complainant was issued a No Due certificate by the opposite party vide certificate memo No. AIT/SS/17350 dated 28.2.2011. Copy of the some of the receipts as well as No Due Certificate are attached. As such complainant hired the services of opposite party against due consideration and as such he fell within the definition of consumer and therefore, the complainant is competent to invoke the jurisdiction of this Forum. After that opposite party No.1  was to execute the sale deed/conveyance deed in respect of the said  shop in favour of the complainant for which the officials of opposite party told  that as and when the complainant will ask for the said purpose, the sale deed will be executed in his favour. However, for the last one year, complainant has been visiting  the office of opposite party and requested its officials to execute requisite sale deed/conveyance deed in respect of the shop in dispute in his favour. But, however, officials of opposite party have been putting of the matter on one pretext or the other. The fact remains that the complainant has paid and deposited all the due installments alongwith interest thereon and nothing was due or payable by him in this regard. No due certificate has also been issued in his favour by the opposite party itself  and from the aforesaid facts, it is quite evident that  the officials of opposite party are trying to grab some illegal gratification from the complainant and are not executing the sale deed to the complainant for the reasons best known to them. Even their version is falsified from the fact that they themselves issued no due certificate to the complainant  as detailed above. The complainant has sought for following reliefs vide instant complaint :-

(i)      Opposite party be directed to execute the requisite sale deed/conveyance deed in respect of shop No. 77GF,Nehru Shopping Complex, Amritsar in favour of the complainant ;

(ii)     Opposite party be also directed to pay a sum of Rs. 75000/- as compensation for the mental pain, agony, harassment and inconvenience suffered by the complainant.

(iii)    Complainant may also be awarded Rs. 10000/- as litigation expenses and Rs. 15000/- as counsel fee .

Hence, this complaint.

2.       Upon notice opposite party appeared and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the present complaint is not legally maintainable  keeping in view the facts and circumstances of the present case and the provisions of law on the relevant subject ; that present complaint is an abuse of the process of law and  it is settled principle of law that process of Consumer Fora cannot become a tool in the hands of unscrupulous persons  who file complaints merely with a view to extract money in the garb of  compensation. It is settled as well as essential requirement of equity that one who alleges must prove the allegation and the complainant cannot take this Forum to reach the conclusion as he desires on the basis of distorted facts ; that  no consumer dispute survives between the parties much less any cause of action has arisen in favour of the complainant  and as such the present complaint being without any cause of action merits dismissal with special costs as envisaged under section 26 of the  Consumer Protection Act, 1986 ; that complainant has failed to place on record any cogent or convincing material in order to substantiate his alleged pleas as well as allegations leveled  in the complaint against the opposite party ; that  complainant has not come to this Forum with clean hands as various material facts have been concealed from this Forum and a distorted version of the facts has been deliberately presented in order to pressurize and harass the replying opposite party. As such the present complaint being false and vexatious merits dismissal with special costs as envisaged under section 26 of the Consumer Protection Act, 1986. It is pertinent to mention that the complainant has not deposited all the installments with interest in the office of opposite party rather he is  defaulter and a considerable amount is due towards the complainant and the same is also accruing interest, penal interest and penalty etc. The alleged No due certificate was issued subject to checking by the audit  and after scrutinized the record of the complainant by the audit, it became crystal clear that the complainant has not paid the entire amount and a considerable amount is due towards the complainant . Even in this respect intimation was given to the complainant vide various letters and request was made to him to pay the entire amount due towards him and in the absence of which it was not possible for the opposite party to get the sale deed executed in favour of the complainant. But inspite of the letters and requests made by the opposite party, complainant has failed to make/pay the entire amount due towards him. But , however, all these vital facts were concealed by the complainant from this Forum and as such it cannot be stated that there is any lapse,imperfection  and deficiency in service on the part of opposite party and as such the present complaint being false, frivolus and without any basis and the same merits dismissal on this simple score alone. On merits facts narrated in the complaint have specifically been denied and it is submitted that the complainant is a defaulter and owe an amount of Rs. 7,46,512/- to the opposite party on account of sale consideration and as such complaint filed by the complainant  is liable to be dismissed with cost and the same may be dismissed accordingly.

3.       In his bid to prove the case Sh.Gautam Majithia,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.CW1/A, copy of allotment letter Ex.C-1, copies of payment receipts Ex.C-2 & Ex.C-3, copy of No due certificate Ex.C-4 and closed the evidence on behalf of the complainant.

4.       To rebut the aforesaid evidence Sh.Neeraj Kumar Brahmi,Adv.counsel for the opposite party tendered affidavit of Sh.Sandeep Rishi,Chairman Ex.OP1,  copy of memo No. AIT/SS/268 dated 11.1.2005 Ex.OP2, copy of agreement Ex.OP3, copy of letter dated 12.5.2015 Ex.OP4, copy of letter dated 7.2.2013 Ex.OP5, copy of letter dated 29.6.2012 Ex.OP6, affidavit of Sh.Shashi Bala, Clerk Ex.OP7, copy of noting sheet Ex.OP8 and closed the evidence on behalf of the opposite party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

6.       Ld.counsel for the complainant has vehemently contended that it is not disputed that complainant was allotted one shop cum office by the opposite party in the scheme known as Nehru Shopping Complex Scheme, Amritsar. The complainant has made the entire payment of the sale consideration to the opposite party. The opposite party has also issued No due certificate , copy whereof is Ex.C-4 on record. The opposite party has failed to execute requisite sale deed/conveyance deed in favour of the complainant despite various visits made by the complainant in this regard to the office of the opposite party. Rather the opposite party has raised a false plea that the complainant was a defaulter and they have mustered the  courage to state like that inspite of the fact that they have already issued “no due certificate” to the complainant. Opposite party is certainly deficient in service and has indulged in unfair trade practice and as  such the opposite party may be directed to execute requisite sale deed in favour of the complainant and the complainant may also be granted adequate compensation as well as litigation expenses matching to the loss suffered by the complainant.

7.       But , however, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has not paid the entire sale consideration to the opposite party. The complainant was under obligation to pay the sale amount in 10 half yearly equal installments with interest @ 12% p.a. . Each half yearly installment comes to the tune of Rs. 1,94,446/- i.e. (principal amount  Rs.1,46,200/- & interest Rs. 48,246/-). The amount will further accrue penal interest @ 12.6% per annum if the consumer pays the installment after the due date. In this respect reference  can be made to clause No. i, ii & iii of the allotment cum memo No. AIT/SS/268 dated 11.1.2005, copy whereof is Ex.OP2 on record. The complainant has not approached this Forum with clean hands as various material facts have been concealed from this Forum  . However, a distorted version of the facts has been deliberately presented in order to pressurize and harass the opposite party to derive wrongful gain and to cause wrongful loss to the public money. The complainant has not deliberately placed on record all the receipts regarding  payment of installments and has suppressed those just  to conceal the fact from the Forum that all the installments were not paid on due date . Due to delayed payment of installments penal interest and penalty accrued thereon. Opposite party has placed on record noting sheet of account of  shop No. 77GF, Nehru Shopping Complex Ex.OP8 which contain the complete details regarding the exact due date of payment as well as the amount payable by the complainant and the date when the payment was actually made by the complainant . A perusal of noting sheet shows that an amount of Rs. 7,46,512/- is due payable by the complainant towards sale consideration of the allotment in dispute. Intimation in this respect was given to the complainant vide various letters dated  122.5.2015, 7.2.2013 and 29.6.2012 which account for Ex.OP4 to Ex.OP6 respectively on record. Vide these letters request was made to the complainant to pay the entire amount due towards him from time to time and in the absence of which it was not possible for the opposite party to get the sale deed executed  in favour of the complainant. But inspite of the letters and request made by the opposite party , the complainant has failed to make/pay the entire amount due towards him. But, however, all these vital facts were concealed by the complainant from this Forum. It is settled principle of law that a party approaching the court concealing material facts , is not entitled to the relief claimed  for.

8.       From the aforesaid discussion, it becomes evident that the complainant is a chronic defaulter  and a sum of Rs. 7,46,512/- is still due and payable by him towards allotment of shop cum office in dispute  which the complainant has failed to pay despite repeated requests. Rather the complainant has with-held that vital information from this Forum. The plea that “No due certificate” has been issued by the opposite party and therefore, at this stage they cannot take the plea that the complainant was a defaulter, is not tenable because the opposite party has adduced on record all the material facts i.e. copy of noting sheet as well as various letters issued by its office to the complainant from time to time , which shows that “No due certificate” was subject  to audit and in the audit the amount of Rs. 7,46,512/- was found due and payable by the complainant, therefore, the complainant is not entitled to the relief prayed for .

9.       Consequently, instant complaint fails and the same is ordered to be dismissed accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated : 11.7.2016

/R/