Haryana

Karnal

180/2013

Ranbir Singh S/o Shri Daryav Singh - Complainant(s)

Versus

Ansal Landmark Township Pvt. Ltd - Opp.Party(s)

V.B. Bhatti

22 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.     

                                                                Complaint No.180 of 2013

                                                                Date of instt.: 15.04.2013

                                                                Date of decision:22.03.2016

 

Ranbir Singh son of Shri Daryav Singh resident of Red Road, near Nagpal Nurshing Home, Kurukshetra (Haryana)..

                                                                  ……..Complainant.

 

                             Versus

1.Ansal Landmark Township Pvt. Ltd. 210 Ansal Bhawan, 16, Kasturba Gandhi Marg, New Delhi 110001 through its Managing Director.

2.Branch Manager, Ansal Landmark Township Pvt. Ltd. Sector 4, Karnal.

 

                                                                           ……… Opposite Parties.

                     Complaint u/s 12  of the Consumer

                     Protection Act.

Before          Sh.K.C.Sharma……….President.             

                   Sh.Anil Sharma…….Member.

Present:-      Sh.V.B.Bhati Advocate for the complainant.

                   Sh.Ashok Rathi Advocate for the Opposite Parties.

ORDER:                     

.  

                        This complaint  has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that his father Daryav Singh  (since deceased) had booked dwelling unit with the Opposite Parties  in Sushant City, Karnal on mutually agreed terms and conditions to be reduced into writing at a later stage. On receipt of the advance money/application amount of Rs.3, 25,000/- vide cheque no.099731 dated 4.11.2005, the Opposite Parties allotted dwelling unit NO.D-3135 to Daryav Singh. Thereafter, a letter dated 14.3.2008 was sent by the Opposite Party no.2 in the name of Daryav Singh for execution of plot buying agreement. Daryav Singh had already died on 5.9.2007. Therefore, he(complainant) being legal representative of Daryav Singh contacted the Opposite Party no.2 on mobile phone no.092156-15056 and informed him about the death of his father. He expressed inability to execute the proposed agreement on the terms and conditions mentioned therein and sought refund of the amount of Rs.3, 25,000/- alongwith due interest. The Opposite Party no.2 advised him to apply for transfer of the plot in the name of legal heirs or  get the refunded the amount by producing the death certificate of Daryav Singh.  Accordingly, he applied for refund of the deposited amount alongwith interest thereon on 22.10.2008, but the Opposite Parties did not refund the amount to him. Therefore, there was deficiency in services and unfair trade practice on the part of the Opposite Parties, which caused him unnecessary harassment apart from financial loss.

 

                   It has also been pleaded that the complainant previously filed one complaint against the Opposite Parties but the same was dismissed in default due to non appearance of his counsel. He came to know about the factum of dismissal of the complaint after receiving the copy of the order through registered post on 24.12.2012. Thereafter, he moved application for restoration of the complaint but the same was returned to him on the ground that the same could not be restored. The cause of action is continuous one as the Opposite Parties has not refunded the amount  deposited by his father, therefore, the fresh complaint was  filed.

 

2.                Notice of the complaint was given to the Opposite Parties who appeared and filed written statement disputing the claim of the complainant. Objections have been raised that the complaint is not maintainable in the present form; that the complainant has no loucs standi and cause of action to file the present complaint; that the complainant has not approached this Forum with clean hands; that this Forum has got no jurisdiction to entertain and decide the present complaint; that the complaint is hopelessly time barred and that previous complaint filed  by the complainant was dismissed on 8.11.2012, therefore, the present complaint is not maintainable.

 

                   On merits, it has been admitted that plot No.D-3135 was allotted in favour of Daryav Singh  and he had deposited an amount of Rs.3,25,000/- with the Opposite Parties alongwith his application for allotment of the plot. It has been submitted that letter dated 12.2.2008 was written to Daryav Singh  that plot no.D-3135 was allotted to him @ Rs.6850/- per sq. yard and the amount of Rs.39475/- was demanded from him. The balance amount was payable on or before 27.2.2008. but the complainant violated the terms and conditions agreed between Daryav Singh and Opposite Parties at the time of allotment. Many call notices, reminders and letters were issued to Daryav Singh to deposit the outstanding amount, but the complainant failed to deposit the same. Notice of cancellation of plot was sent to the complainant and he was requested to deposit the demanded amount within thirty days of the receipt of the letter, but he failed to deposit the demanded amount. Therefore, allotment of the plot was cancelled by the Opposite Parties and public notice dated 2.3.2011 was published in the Danik Bhaskar News paper. As the terms and conditions agreed by the Opposite Parties and Daryav Singh were violated, the amount deposited by Daryav Singh stood forfeited ,therefore, the complainant cannot get refund of the amount deposited by Daryav Singh.  The other allegations made in the complaint have been denied.

4.                 We have heard the learned counsel for the parties and have gone through the case file very carefully.

 

5.                 The learned counsel for the Opposite Parties put a great thrust upon the contention that it is admitted fact that previous complaint bearing no.576 of 2009 filed by the complainant against the Opposite Parties on the same cause of action was dismissed in default by this Forum on 8.11.2012.The said order was not challenged by the complainant before the Appellate Authority, therefore, the same became final. The fresh complaint filed by the complainant is not maintainable. In support of this contention he relied upon Ansal Housing and Construction Limited Vs. Indian Machinery Company III(2013) CPJ 304 (NC).

 

6.                On the other hand the learned counsel for the complainant vehemently argued that the Opposite Parties have not refunded the amount of Rs.3,25,000/- deposited by the father of the complainant for allotment of the plot, therefore, the complainant has got continuous cause of action and his second complaint for seeking the same relief is very well maintainable.

 

7.                In Ansal Housing Construction Limited’s case(Supra) the first complaint filed by the complainant was dismissed for non appearance of the complainant.  Second complaint was filed on the same facts and circumstances. It was held by the Hon’ble National Commission that filing of second complaint on same facts and circumstances has not been provided any where as per established legal provisions.  The complainant could have moved higher authorities by way of appeal, revision etc. Second complaint was not legally maintainable.

 

8.                The proposition of law laid down in the aforecited authorities applied on all fours of the present case. There is no dispute regarding the fact that the complainant had previously filed one  complaint  before this Folrum on the same facts and circumstances, but that complaint was dismissed in default on account of his non appearance, vide order dated 8.11.2012.The complainant got the copy of the said order on 24.12.2012. He could get  the said order set aside by filing  appeal or revision etc.before the Competent Authority, as per provisions of law, but no such step was taken by him in that direction.  Thus, the order attained finality. The complainant instead of resorting to legal remedy available for setting aside the order dated 9.11.2012,  opted to file the present second complaint on the same facts and circumstances.  Consequently, the second complaint is not legally maintainable.  The argument advanced by the learned counsel for the complainant cannot be accepted being devoid of force.

 

 

 

 

 

 

9.                As a sequel to the foregoing discussion, the present complaint is hereby dismissed being not maintainable. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced
dated:22.03.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.

 

 

 

 

 

Present:-      Sh.V.B.Bhati Advocate for the complainant.

                   Sh.Ashok Rathi Advocate for the Opposite Parties.

 

                   Remaining arguments heard. Vide our separate order of the even date, the present complaint has been dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced
dated:22.03.2016

                                                                    (K.C.Sharma)

                                                                   President,

                                                         District Consumer Disputes

                                                          Redressal Forum, Karnal.

            (Anil Sharma ) 

               Member.