STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (COMPLAINT NO.3 OF 2010) Date of Institution: 22.1.2010. Date of Decision: 29.09.2010. Sh. Tarun Ghai, Aged 62 years son of SH. H. R. Ghai, resident of House No.26, Sector 3, Chandigarh. ……Complainant. Versus 1. The Chandigarh Overseas Pvt. Ltd., SCO No.196-197, Sector 34A, Top Floor, Chandgiarh through its Managing Director. 2. Sh. Sumesh Chawla, M.D., The Chandigarh Overseas Pvt. Ltd., SCO No.196-197, Sector 34A, Top Floor, Chandgiarh. 3. Sh. Akash Arora, Vice-President-Finance and authorized representative of The Chandigarh Overseas Pvt. Ltd., SCO No.196-197, Sector 34A, Top Floor, Chandgiarh. 4. Sh. Hardyal Singh Mann, Chairman/Promotor/Authorised Signatory, The Chandigarh Overseas Pvt. Ltd., SCO No.196-197, Sector 34A, Top Floor, Chandgiarh. ....Opposite Parties. BEFORE: HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT. SH. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. Deepak Aggarwal, Advocate for the complainant. OPs exparte. PER JAGROOP SINGH MAHAL, MEMBER. 1. This complaint under Section 12 of Consumer Protection Act, 1986 (hereinafter referred to as the Act) has been filed by the complainant Sh. Tarun Ghai alleging that the OPs have promoted a Techno Knowledge Park for fashion technology, which was named as Industrial Knowledge (Fashion Technology) Park in Sector 90, SAS Nagar, Mohali. The complainant purchased a Design Studio No.7 at Floor No.6, Block No.A1 with covered area of 1014.60 sq.ft @Rs.4,000/- per sq.ft. He made the payment of Rs.48.56 lacs vide receipts (Annexures C-3 to C-14) out of a total sale consideration of Rs.40.56 lacs. According to him, OPs offered to buy back the same for a sum of Rs.7.5 Lacs per unit and the payment was to be made on the completion of 30 months from the date of start of the consideration regarding which letter (Annexure C-15) was issued. The date of handing over of possession was agreed to be 31.3.2009 failing which the OPs agreed to compensate the complainant @Rs.50/- per sq. per month on the super area as per Clause 10 of the allotment letter (Annexure C-23). According to the complainant, he had a meeting with the OPs on 1.7.2009 when the terms of full and final settlement of the buy back option were decided between the parties regarding which document (Annexure C-21) was prepared vide which the OPs gave to him three cheques of a total amount of Rs.62,67,948/- towards full and final settlement of his claim. Only one cheque for Rs.17.02 Lacs has been encashed and the other two cheques had bounced as the payment was stopped by the OPs. The complainant, therefore, filed the present complaint for the payment of the remaining amount of Rs.45.64 Lacs and for a compensation of Rs.5 Lacs on account of harassment and mental agony and another compensation @ Rs.50/- per sq. ft. per month on the super area as per Clause 10 of the agreement along with interest @24% per annum on the delayed payment; Rs.10,000/- on traveling and miscellaneous charges and Rs.35,000/- as costs of litigation. 2. Notices were issued to the OPs but they refused to accept the same and were proceeded against exparte. 3. The complainant was granted opportunity to lead evidence. 4. We have heard the learned counsel for the complainant and have perused the record. 5. Annexure C-23 is the allotment letter vide which studio with built up area of 1014.60 sq. ft. was allotted to the complainant for a total sale price of Rs.40.56 Lacs out of which Rs.38.56 Lacs have already been paid by the complainant. Annexure C-3 to C-14 are the receipts issued by Chandigarh Overseas Private Limited (OP No.1) showing that a sum of Rs.38,56,000/- has been received by them. As per Annexure C-23, the possession was to be delivered to the complainant up to 31.3.2009 except due to reasons force majeure mentioned in Clause 10 thereof. The contention of the complainant is that there was a condition of buy back in view of which he wrote e-mail (Annexure C-17) and thereafter, issued reminder (Annexure C-18) for confirmation from the OPs but he was informed vide Annexure C-19 that company would honor the commitment of the contract, upon which, the complainant again wrote letter (Annexure C-20). His contention is that the OPs agreed to honor the condition of buy back and therefore, issued letter (Annexure C-21) along with the cheques. This contention appears to be wrong. 6. The learned counsel for the complainant has gone through the agreement (Annexure C-23) but could not point out any clause thereof under which the OPs agreed to buy back the studio. Even in his complaint, he has not mentioned the number of the clause under which such buy back of the studio was envisaged. The complainant wrote Annexures C-17, C-18 and C-20 but in none of those letters, the clause was mentioned or reproduced. We are, therefore, of the opinion that there was no buy back clause in the agreement (Annexure C-23). 7. The complainant has mentioned in Para No.4 of the complaint that the OPs offered to buy back the units regarding which letter (Annexure C-15) was written by them. A perusal of Annexure C-15 shows that it is purported to have been written by Greenfield Sites Management Private Limited and not by any of the OPs. Interestingly, the said Greenfield Sites Management Private Limited has not been made a party to this complaint. It also becomes clear that the complainant in Para No.4 have mentioned facts, which to his knowledge, were false and he just tried to camouflage the whole issue by introducing Annexure C-15 to allege that this letter was written by the OPs. 8. It is further the contention of the complainant that in view of the said buy back condition, OPs on 1.7.2009 issued the letter (Annexure C-21) and gave the three cheques to him. This contention also appears to be false. When the learned counsel for the complainant was asked to produce the original letter of Annexure C-21, he showed his inability to produce the same alleging that the complainant does not have the original letters. 9. We have gone through the evidence on record but there is no mention as to in whose handwriting Annexure C-21 is and who is the authorized signatory of the same on behalf of the OPs. In the absence of the original, a photocopy cannot be admitted in evidence and therefore, Annexure C-21 cannot be accepted as evidence to prove the facts alleged upon. 10. There is yet another reason apart from the original thereof having not been produced suggesting that Annexure C-21 could be a forged document. The entire correspondence between the parties produced on file suggests that the OPs have always been writing the printed letters in respect of the sale of the studio whereas Annexure C-21 is hand written. This document is not on the letter head of the OPs. In almost all the documents, there is a stamp of Chandigarh Overseas Private Limited and the signatures of his authorized signatory but there is no such stamp affixed on Annexure C-21. Even the name of the person signing Annexure C-21 as authorized signatory has not been mentioned anywhere in Annexure C-21 or in any of the letters. It is not proved as to in whose presence, Annexure C-21 was prepared or signed and the affidavit of that person has not been produced. It is not an agreement executed between the parties but Annexure C-21 is a letter purported to have been written by OP No.1 to the complainant mentioning therein that if the terms were acceptable to him as full and final settlement, he should sign a copy as his confirmation, which the complainant says he signed it. If the letter had been issued on the instructions of OP No.1, it would have been on its letter head and the stamp of OP No.1 would have been affixed thereon and the name of the authorized signatory would have been specified thereon. We are, therefore, of the opinion that Annexure C-21 is not a genuine document to prove the buy back offer especially when there is no such term to buy back in the agreement (Annexure C-23). 11. According to the complainant, the letter (Annexure C-21) was prepared on 1.7.2009 on which date, the three cheques were also prepared. The photocopies of two of the cheques are at Annexures C-26 and C-27. These have been signed by the authorized signatory of Chandigarh Overseas Pvt. Ltd. (OP No.1). The signatures of the so called authorized signatory on Annexure C-21 do not tally with the signatures on the cheques. This also is a circumstance that original of Annexure C-21 is not proved to have been signed or written on behalf of OPs. 12. The learned counsel for the complainant has argued that along with Annexure C-21, three cheques mentioned therein were issued to the complainant out of which only one cheque has been encashed but the other two cheques were returned to the complainant with cheque return memos (Annexures C-26 and C-27). The issuance of the cheques or the return thereof would not prove the agreement between the parties nor can it prove the purpose for which the said cheques were issued. We are, therefore, of the opinion that this contention of the complainant cannot be accepted as correct. 13. The learned counsel for the complainant has also mentioned that in view of Clause 10 of the agreement (Annexure C-23), the complainant was entitled to a sum of Rs.50/- per sq. ft. per month on the super area and therefore, the complainant is entitled to a total of Rs.50,700/- per month on this amount. His contention is that the amount of compensation from 31.3.2009 to 1.7.2009 was calculated and added in the amount of Rs.38.56 Lacs paid by him, which made a total of Rs.62,47,948/- for which the three cheques were issued. Admittedly, no such amount was due till 31.3.2009 and this payment would be payable only after and w.e.f. 1.4.2009. The complainant is not entitled to any interest on the deposited amount as provided under Clause 5 of the agreement (Annexure C-23). The period of only three months elapsed up to 1.7.2009 and the amount to which the complainant could be entitled under Clause 10 comes to Rs.1,52,100/-. If it is added to Rs.38.56 Lacs, the total comes out to Rs.40,08,100/- and not Rs.62,67,948/- as is alleged by the complainant. The story developed by the complainant, therefore, lacks genuineness. 14. The complainant is not entitled to any damages because he already has let out the premises to Greenfield Sites Management Private Limited vide Annexure C-25. As per Clause 4.1 of this Lease Agreement, the entitlement of the complainant to the lease amount starts immediately after the completion of 30 months from the start of the construction or from the date of handing over of the possession by the developer to the lessee, which ever is earlier. It may be mentioned that even in the allotment letter (Annexure C-23), which was accepted on 18.10.2006, the date of delivery of possession was mentioned as 31.3.2009, which comes out to roughly 30 months and therefore, the complainant has become entitled to lease money w.e.f. the said date thereby absolving the OPs of any liability to pay damages for late delivery of possession of the premises. We are, therefore, of the opinion that the complainant cannot be allowed two benefits, one of damages from the OPs under Clause 10 of the agreement (Annexure C-23) and the other of lease money from the third party namely Greenfield Sites Management Private Limited. 15. Viewed from any angle, we are of the opinion that it is a frivolous litigation generated by the complainant and he tried to support the frivolous complaint by forging the documents and mentioning wrong facts therein not only about the letter (Annexure C-15) but also about the clause regarding buy back and introducing Annexure C-21, which appears to be fabricated, to succeed in the case. The mere fact that the OPs have been proceeded against exparte does not mean that the complainant is not liable to prove his case in accordance with law or is at liberty to introduce false facts and fabricated documents. For such litigants, the Act contains Section 26 under which costs are imposed for filing false and frivolous complaints. We, however, restrain ourselves from imposing any such cost on the complainant under a hope that good sense will prevail on him and he would not repeat such acts in future. 16. In view of the above discussion, we are of the opinion that the present complaint fails and the same is hereby dismissed. 17. Copies of this order be sent to the parties free of charge. Pronounced. 29th September 2010. Sd/- [JUSTICE PRITAM PAL] PRESIDENT Sd/- [JAGROOP SINGH MAHAL] MEMBER Ad/- STATE COMMISSION (COMPLAINT NO.3 OF 2010) Argued by: Sh. Deepak Aggarwal, Advocate for the complainant. OPs exparte. Dated the 29th day of September 2010. ORDER Vide our detailed order of even date recorded separately, this complaint filed by the complainant has been dismissed. (JAGROOP SINGH MAHAL) MEMBER | (JUSTICE PRITAM PAL) PRESIDENT |
| HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |