Delhi

StateCommission

CC/11/410

SURINDER MOHAN BHATIA - Complainant(s)

Versus

ANSAL PROPERTIES INFRASTRUCTURE LTD. - Opp.Party(s)

01 May 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

 

Date of Hearing:01.05.2019

                                                                                                              

                                                                   Date of decision:17.05.2019

 

Complaint No.410/2011

 

IN THE MATTER OF

 

Mr. Surinder Mohan Bhatia,

17/29, East Punjabi Bagh,

New Delhi….Complainant

 

VERSUS

 

M/s Ansal Properties & Infrastructure Ltd.,

115, Ansal Bhawan,

16, K.G. Marg,

New Delhi                                                                         ….Opposite Party

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

                                 

 1.   Whether reporters of local newspaper be allowed to see the judgment?            Yes     

 2.   To be referred to the reporter or not?                                                                   Yes

 

Present:       Sh. Dhruv Kapoor and Sh. Maharshi Kala, Counsel for the complainant

                   None for the OPs

                   Even in the second call

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           This complaint has been filed before this Commission by Sh. Surinder Mohan Bhatia, resident of New Delhi for short complainant, under Section 17 of the Consumer Protection Act 1986, the Act, against M/s Ansal Properties & Infrastructure Ltd., hereinafter referred to as OPs, alleging deficiency of service on the part of OP they not having handed over the possession of the plot booked by him within the time as agreed to and thereby causing mental harassment and avoidable financial hardship and praying for relief as under:-

 

1. Direct the OP to execute the sale deed for the plot no. F-2508, having approximate area of 250 sq. mtr. i.e. 299 sq. yds in favour of the complainant after receipt of the balance calculated @ Rs. 12,000/- per sq. yds.

 

                                                                                                   Or

 

2. In the alternative direct the OP to pay a sum of Rs. 10,76,400/- alognwith interest @ 24% per annum to the complainant along with suitable compensation being the difference in the price on which the plot was agreed to be sold and the prevailing market price of the plot.
3. Direct the OP to pay compensation of Rs. 10,00,000/- for the mental agony and harassment faced by the complainant.
4. Pass and ex-parte ad interim restraint order against the Op thereby restraining it from creating any third party interests over the property bearing plot no. F-2508, having approximate area of 250 sq. mtr. i.e. 299 sq. yds.
5. Pass such other and further order(s) as this Hon’ble Commission may deem fit and proper in the interest of justice.

 

2.           Facts of the case necessary for the adjudication of the complaint are these.
3.           Responding to an advertisement issued by the Ops inviting booking of plots in their project, namely. ESENCIA on Sohna-Gurgaon Road, Haryana, one Shri. Anwar Hussain, resident of New Delhi had registered himself for allotment of plot in the said project and deposited an amount of Rs. Five Lakhs. In furtherance thereto the Ops had offered him (Mr. Anwar Hussain) on provisional basis the allotment of plot in their township Esencia, situated in sector 66, Gurgaon, Haryana bearing plot no. F-2508, having approximate area of 250 sq. mtr. i.e. 299 sq. yards @ Rs. 12,000/- per sq. meter making the total consideration of Rs. 35,88,000/-. In addition Mr. Anwar Hussain, was also liable to pay external development charges, infrastructure development charges and another fees/taxes payable to Haryana Govt. and Central Govt. etc. or other charges in accordance with the orders/notification issued from time to time. Subsequently Sh. Anwar Hussain and the complainant entered into an agreement on 24.03.2006 whereby Sh. Anwar Hussain on receipt of the payment of Rs. Five Lakhs agreed to transfer his right from the said immoveable property in favour of the complainant.
4.           The complainant had thereafter on receipt of the demand from the OP paid a sum of Rs. 5,76,400/- on 17.04.2010 which amount was duly accepted. Simultaneously the original allottee Mr. Anwar Hussain had also apprised the OP of the fact that he had transferred his booking in favour of the complainant in terms of the Memorandum of understanding dated 24.03.2006 and requested the OP to issue all communications from that point onwards in the name of the complainant and to enter the name of the complainant as the allottee of the said plot in place of Mr. Anwar Hussain who was the original allottee. The OP informed both the complainant and Mr. Anwar Hussain that the transfer of the said plot in the name of the complainant would be recorded later as the same was a time consuming process but assured that requisite steps in this regard would be taken in due course under intimation to the complainant as also Mr. Anwar Hussain. However the complainant has alleged that no steps were taken in this regard despite its assurance nor any notice/ intimation was issued to the complainant or Mr. Anwar Hussain regarding the same.
5.           The complainant had thereafter requested the OPs to get the sale deed executed with respect to the plot in his favour and in response thereto the OPs without bringing home either to the complainant or to Mr. Anwar Hussain the details, sought for an amount of Rs. 5,57,362/- as interest for the delayed period and also threatened that in the event of non payment of the amount as indicted above, the offer of allotment would be cancelled and the amount paid, would stand forfeited. This according to the complainant tantamounts to indulgence in unfair trade practice. However the complainant without admitting the liability, agreed to pay the amount as sought for primarily to ensure that the allotment of the said plot was not cancelled.
6.           The OPs thereafter informed both the complainant and Sh. Anwar Hussain to pay by way of demand draft an amount of Rs. 23,32,000/-, Rs. 5,57,362/- as interest and Rs. 9,15,239/- towards the balance amount of the plot of land and towards extra development charges and other miscellaneous charges. The complainant agreed to do so and requested them to execute the sale deed but worst happened when OPs refused to execute the sale deed unless the additional amount at the increased price is paid. The complainant feeling aggrieved by this act of the OPs, issued a legal notice requiring the OPs to hand over the possession and to execute the sale deed but in the absence of any response, being pushed to the wall, a complaint was filed before this Commission for the redressal of his grievances.
7.           The OPs were noticed and in response thereto they have filed their written statement resisting the complaint both on technical ground as also on merit, stating, inter alia that the plot of land having been allotted to Sh. Anwar Hussain there exists no privity of contract between the OP and the complainant. Secondly the plot of land provisionally allotted to Sh. Anwar Hussain stood cancelled and thus no cause of action as against the OPs qua the complainant exists. Thirdly, the complainant is not a consumer qua the OP merely on the ground that the cheque issued by him has been encashed by the OPs. Infact the complainant is a stranger to the OP and thus not entitled to raise a consumer dispute under the Consumer Protection Act 1986.
8.           The complainant had filed the rejoinder rebutting the contentions raised in the reply and reiterating the averments contained in the complaint. Both sides have filed evidence based on their pleadings. Written submissions have also been filed. This matter was listed before this Commission for final hearing on 01.05.2019 when the counsel for the complainant appeared and advanced his arguments. None appeared for the OPs even in the second call. Infact the OP have been ordered ex-parte vide proceedings recorded on 17.05.2018. I have read and re read the records of the case and given a careful consideration to the subject matter.
9.           Short question for adjudication in this complaint is whether the cancellation of plot without proper and due notice was deficiency in service, and secondly, whether the OPs are under an obligation to hand over the possession of the plot and execute the sale deed, when there exists allegedly no privity of contract between the complainant and OPs.
10. I may in the first instance advert to the point whether the complainant can be treated as consumer qua the OP. Section 230 of the Indian Contract Act 1872 posits as under:-

 

 Agent cannot personally enforce, nor be bound by, contracts on behalf of principal.—In the absence of any contact to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them. —In the absence of any contact to that effect an agent cannot personally enforce contracts entered into by him on behalf of his principal, nor is he personally bound by them." Presumption of contract to contrary.—Such a contract shall be presumed to exist in the following cases:—

(1) where the contract is made by an agent for the sale or purchase of goods for a merchant resident abroad;

(2) where the agent does not disclose the name of his principal;

(3) where the principal, though disclosed, cannot be sued.

 

Agents when can be impleaded

It is true that under section 230 if contract not falling within exception therein, cannot be enforced by or against the agent, obviously the suit cannot be filed by or against agent to get relief. However, section 230 is no bar to implead agent as party for other purpose or may be for effective adjudication of the suit if called for; Jaqua Industries and Sales Co. Pvt. Ltd. vs. Mussammat Anis Fatima Begum, AIR 2007 (NOC) 82 (Cal).

 

When agent can be sued

Before the agent can be sued it must be pleaded and shown that the principal is undisclosed and the contract, the breach of which is sued on was entered into by the agent as having contracted personally. Where the contract is entered into by agent contracting on behalf of a foreign principal who is named and disclosed, the agent can not be sued personally nor made personally liable; Midland Overseas vs. CMBT TANA, AIR 1999 Bom 401.

 

11.  Their lordships in the Apex Court are pleased to hold in the matter of Virender Khullav versus American Consolidation Services Ltd., as reported in III [2016] CPJ 22 (SC) that defence under Section 230 of the Contract Act is available in the cases under Act by the agents of principal with whom the complainant had agreement.
12. In this view of the matter the exceptions engrafted on the general rule on equitable considerations which recognized that if the contract has the effect of creating a trust in favour of a third person such person may sue to have the obligation arising for his benefit fulfilled. The objection of the OP is sequentially rejected.
13. I may now deal with the next point on the subject whether the cancellation of plot without adequate notice would withstand the judicial scrutiny. The defence of the OP is that a notice was published in the newspaper, namely, “Tribune” and therefore the notice was duly effected. I may advert to the law on the subject.
14. The defence of the OPs is that they before cancelling the allotment had also issued a notification in the press and the publication of notice in the newspaper is a valid notice. But as per the law settled notice through publication in the matter of the kind where the allotment or cancellation thereof is involved, is no service. It is a trite law that when allotment of flat is involved, service of demand letter is required to be effected personally. The Hon’ble NCDRC while delivering judgment in the RP 4189/2007 on 04.04.2012 in the matter of DDA versus Mukesh Kumar Jain, upheld the following orders of the State Commission holding as under:

 

“We have held in case after case that wherever substantial right of a person, like the one in question, that allotment of the plot or flat is involved, it is obligatory upon the service provider to ensure that the service of demand-cum-allotment letter is effected personally upon the consumer. Merely sending allotment-cum-demand letter through registered post does not fulfil the obligation. Unless and until registered documents are enclosed with acknowledgment due receipts and the acknowledgment is received back with the purported signatures of the consumer which should be invariably compared with the signatures on application forms it is not open to the DDA to cancel the allotment. Automatic cancellation without personal service upon the allotment abridges and violates the most valuable right of the allottee.

Petitioner’s contention that it did not seem probable that the respondent had not received the demand-cum-allotment letter sent in 1993 because it was sent by registered post was considered in its totally by the fora below who are courts of fact and they have concluded that this by itself was not adequate evidence to prove that the letter was received by the Respondent. This is further fortified by the fact that had the respondent indeed received the demand-cum-allotment letter, no plausible reason or evidence has been produced by petitioner to explain why he did not respond to it and on coming to know regarding his allotment, his visiting and writing to the petitioner/Authority to allot the plot to him. We thus see no reason to disagree with the fora below in respect of this conclusion.

 

15. This commission while disposing of C-42/2008 in the matter of Krishan Gupta (since deceased) through LRs versus DDA has held as under:

 

Secondly, publishing of a public notice is not enough because the complainant got himself registered in 1978 whereas the decision was taken in 2002. Citizens cannot be expected to follow the newspaper on every single day for over 25 years to keep track of public notice which may be issued by DDA. Such a plea on behalf of DDA is both unfair and unreasonable. The was so held by High Court of Delhi in WP (C) No. 119/2007 titled as Abhay Prakash Sinha vs. DDA decided on 07.11.2007. The said decision referred to earlier decision on the same point in WP(C) No. 11654/2006 titled as Subhash Chandra Sethi vs. DDA decided on 20.3.2007, WP(C) No.20250/2005 titled as Jay Prakash Vs. DDA decided on 21.07.2006.

 

16. This commission in yet another case, in FA 763/07, in the matter of DDA versus Sh. Jagdish Lal Arora, has held as under:

 

“A feeble attempt has been made by the ld. Counsel for the appellant that publication with regard to the registrant of the Rohini Residential Scheme 1981 was made in the newspaper on 25.04.2004 and another publication was and made and even the complainant had not responded in respect of the aforesaid notices issued by the DDA. Therefore, the complainant is not entitled to claim any relief. This contention is devoid of all force. Notice by way of publication is a general notice. Such service is not a service. There is direct relationship between the service provider and a consumer and therefore every consumer has to be intimated personally and served with the decision taken by the service provider. The people may or may not read the newspaper in which the service providers decide or put notice or accepted to subscribers. Therefore the publications in the newspaper are not helpful to the appellant/OP with regard to the service of the demand-cum-allotment letter to an allottee.

17. In this view of the matter cancellation being done without due and valid notice, is bad in law.
18. The next objection of the OPs that the sale of plot of land is not covered under the Consumer Protection Act 1986, is also not sustainable as the sale of plot in the given case envisage service like paying of roads, water pipelines etc. and that having not been done it is a case of deficiency in service which means the issue is covered under the provisions of Section 2(1)(g) of the Act.
19. Having regard to the discussion done and the legal position explained I am of the considered view that the complaint deserves to be accepted and it is ordered accordingly. Having reached to this conclusion the point for consideration is the relief the complainant can be granted in the facts and circumstances of the case.
20. The cancellation of allotment of the plot having been done, the prayer for the execution of the sale deed may not be feasible at this stage and thus alternatively the OPs are directed to refund the amount deposited with simple interest at the rate of 9% from the date of deposit till the amount as ordered is refunded and while doing so no amount be forfeited as forfeiture is permissible or can be considered to be enforced only in the event  the complainant is found wanting in the discharge of his functions under the agreement which is not the case. Secondly, an amount of Rs. 3,00,000/- is awarded to be paid by the OPs to the complainant for causing harassment and mental agony. The directions contained in this order be carried out by the OPs within a period of three months failing which the complainant would be free to initiate the execution proceedings under Section 25 and 27 of the Act.
21. Ordered accordingly.
22. A copy of this order be forwarded to the parties to the case free of cost as statutorily required.
23. File be consigned to records.

 

(ANIL SRIVASTAVA)

                                                                                MEMBER