DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Complaint Case No : 123/2015
Date of Institution : 01.07.2015
Date of Decision : 05.01.2016
Hari Om, aged about 60 years, son of Sh. Milkhi Ram R/o House No. B-XI/1051, Gali No. 4, K.C. Road, Barnala, Tehsil and District Barnala.
…Complainant
Versus
Emerging India Housing Corporation Ltd., under Management and supervision of Emerging Valley Pvt. Ltd., Head Office SCO No. 46-47, 1st Floor, Sec. 9-D, Near Matka Chowk, Madhya Marg, Chandigarh, through its Director/Manager;
Emerging India Housing Corporation Ltd., under Management and supervision of Emerging Valley Pvt. Ltd., Branch Office New Grain Market, Near Punjab and Sind Bank, Barnala, through its Branch Manager/Authorized Signatory;
Gagan Sharma S/o Narinder Sharma, R/o House No. B-XI/1051, Gali No. 4, K.C. Road, Barnala, Tehsil and District Barnala.
…Opposite Parties
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. Ramandeep Rajput counsel for the complainant.
Sh. Varinder Jethi counsel for the opposite parties No. 1 & 2.
The opposite party No. 3 exparte.
Quorum.-
1. Shri S.K. Goel : President.
Sh. Karnail Singh : Member.
Ms. Vandna Sidhu : Member.
ORDER
(SHRI S.K. GOEL PRESIDENT):
The complainant namely Hari Om has filed the present complaint under Consumer Protection Act, 1986 (hereinafter called as Act) against Emerging India Housing Corporation Ltd., and others (hereinafter called as the opposite parties).
2. The facts emerging from the present complaint are that the complainant applied for a showroom/space with the opposite parties for earning his livelihood in the colony to be developed by the opposite party No. 1 vide application No. 2214 through the opposite party No. 2 i.e. the branch of the opposite party No.1 and deposited an amount of Rs. 1,01,000/- with the opposite party No. 2 for which an acknowledgment slip No. 0970742 dated 1.11.2011 was issued by the opposite party No. 3 Gagandeep Sharma, who is working as an employee/agent of the opposite parties. It is further averred that all the documentary formalities were completed by the opposite party No. 3. At the time of booking, the opposite parties promised to supply Brochure alongwith the site plan of the colony with full details of developments regarding roads with their width, parks, hospitals, schools, shopping complex and the approached linking roads to connect the colony with the main city alongwith the copy of the agreement. An option was also given to the complainant that he will be at liberty to sell the said plot to the company or to get refund of the deposited amount with interest from the date of deposit till the final payment. It is also averred that the said colony was to be developed within a period of two years from the deposit of token money with all facilities of light, water, sewerage, roads, shcools, hospitals, shopping complex and all other necessary facilities including the facility of link roads to the main city. It is further averred that in the draw of lots held on 30.3.2012, the complainant was allotted the Preference/Docate No. SS-250/082 for which a certificate has been issued to him. Thereafter, the complainant deposited further payments of installments of Rs. 1,00,000/- vide cheque No. 604085 dated 20.4.2012 drawn from SBOP Branch Barnala in favour of opposite parties and further deposited Rs. 56,250/- with the opposite parties No. 2 & 3.
3. It is further averred that owing to pressing personal circumstances, the complainant was unable to meet the financial commitments required for continuance of legal rights and as such the complainant has sought to refund the deposited amount of Rs. 2,56,250/- vide an application dated 5.3.2013 to the opposite party No. 1, which was duly recommended by the opposite party No. 3 on behalf of opposite party No. 2. The complainant had also deposited with the opposite party No. 2 the required original documents. However, no reply was given by the opposite parties on the refund application. Thereafter, he again went to the opposite party No. 2 to know the status of the refund and thereafter he also met with the opposite parties many times. But no refund was given to the complainant except an assurance continued to be given to the complainant. It is further alleged that after 1 ½ years i.e. on 12.9.2014, the opposite parties instead of refunding the deposited amount, issued a letter dated 12.9.2014 and required the complainant to pay Rs. 7,90,895/- despite the fact that the opposite parties had already within their knowledge that the complainant has applied for the refund of deposited amount. Thus, the opposite parties have not refunded the deposited amount till today. Hence, the present complaint is filed seeking the following reliefs:-
To refund the deposited amount of Rs. 2,56,250/- alongwith interest @ 18% per annum.
To pay Rs. 1,00,000/- as compensation and Rs. 50,000/- as litigation expenses.
4. Upon notice of this complaint, the opposite parties No. 1 & 2 appeared and filed written version taking legal objections interalia on the grounds of jurisdiction and the complaint attracts the provisions of Specific Relief Act and suit for specific performance should have been filed if any and thirdly the complainant did not adhere to the term of the agreement. The booking amount stands forfeited. On merits, the opposite parties admitted that the complainant booked one space and deposited an amount of Rs. 1,01,000/-. It is also averred that the complainant was allotted showroom space and moreover the Brochure with the site plan cover was provided to the complainant showing the details required. However, the opposite parties denied that the complainant was at liberty to sell the plot to the company or to refund the deposited amount with interest. They have also submitted that the complainant however did not fulfill his financial commitment and therefore the amount stands forfeited. They have denied the other allegations of the complainant and finally prayed for the dismissal of complaint.
5. The opposite party No. 3 was proceeded against exparte vide order dated 4.8.2015.
6. In order to prove his case, the complainant tendered in evidence his own affidavit Ex.C-1, copy of acknowledgment slip Ex.C-2, copy of certificate Ex.C-3, copy of receipt dated 23.10.2012 Ex.C-4, copy of cheque Ex.C-5, copy of application dated 5.3.2013 Ex.C-6, copy of receipt dated 27.4.2013 Ex.C-7, copy of Reminder letter dated 12.9.2014 Ex.C-8, copy of letter/application dated 29.12.2014 Ex.C-9, copy of postal receipt Ex.C-10 and closed the evidence.
7. In order to rebut the case of complainant, the opposite parties tendered in evidence affidavit of Parminder Kumar Ex.O.P1.2/1 and closed the evidence.
8. We have heard the Ld. Counsel for the parties and have gone through the evidence tendered by both the parties.
9. At the outset the Ld. Counsel for the opposite parties has submitted that the District Forum at Barnala had no territorial jurisdiction to entertain and try the present complaint, as specific objection as to territorial jurisdiction was taken in the written version by the opposite parties. It was further contented that the agreement was entered into at Chandigarh and therefore this Forum has no jurisdiction. This contention of the Ld. Counsel for the opposite parties is untenable.
10. Firstly, the opposite parties have not placed any such agreement to indicate that it is executed at Chandigarh. Even otherwise there is no denial on behalf of the opposite parties that they have the Branch Office at Barnala (the opposite party No. 2) and vide receipt Ex.C-2 the opposite parties have accepted the earnest money of Rs. 1,01,000/- on 1.11.2011 at Branch Barnala. Thus, the cause of action has arisen at Barnala. Therefore, in view of the Section 11 of the Act, this Forum has the requisite territorial jurisdiction and this Forum has rightly entertained the complaint.
11. The second submission taken by the Ld. Counsel for the opposite parties is that the complainant has agreed to purchase the space for showroom and it is a contract of sale between the parties and therefore the provisions of Specific Relief Act are applicable and the complainant should have filed Suit for Specific Performance. The Ld. Counsel for the opposite parties further submitted that the complainant has not paid the full payment of the showroom and therefore the complainant cannot asked for refund of deposited amount.
12. Perusal of the record shows that the complainant has deposited Rs. 2,56,250/- as part payment against the allotment of showroom. Perusal of letter issued by the opposite parties dated 12.9.2014 Ex.C-8 shows that the complainant was asked to pay Rs. 7,90,895/-, which was the remaining amount to avoid forfeiting of the amount.
13. It is also admitted by the complainant in Para No. 6 of the complaint that the complainant has won a showroom SS-250 in the draw of lots held on 30.3.2012 and the complainant has been allotted the Preference/Docate No. SS-250/082 for which a certificate has been issued to the complainant vide which the opposite parties promised for allotment of the showroom in their upcoming project. The said certificate is Ex.C-3.
14. Once a contract is executed, it was the duty of the complainant to pay the installments as per terms and conditions of the agreement. There is no evidence on record to show that the opposite parties have played fraud with the investors or the complainant and there was no such company is existing. The complainant discontinued the payment of the remaining installments owing to press personal circumstances, as he was unable to make the financial commitment. Meaning thereby, the complainant is at fault to perform his part of contract.
15. Perusal of the record shows that it is a case of contract of sale of the showroom space and the complainant has also received a specific letter Ex.C-8 from the opposite parties for allotment of the space in question in their project. However, the complainant for personal reasons intended to refund the deposited amount.
16. Keeping in view the fault or failure of the purchaser to pay the remaining installments, we are of the view that there is neither any deficiency in service nor any unfair trade practice on the part of the opposite parties.
17. In view of the above discussion, there is no merit in the present complaint and the same is dismissed. There is no order as to costs. However, the complainant is at liberty to approach the Civil Court as per law, if he so desires. Copy of the order be supplied to the parties free of costs. The file after its due completion be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
5th Day of January, 2016.
(S.K. Goel)
President.
(Karnail Singh)
Member.
(Vandna Sidhu)
Member.
