Punjab

Faridkot

CC/19/157

Kuldeep Kumar - Complainant(s)

Versus

Emerging India Infra - Opp.Party(s)

In person

04 Nov 2019

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :        157 of 2019

Date of Institution :   26.06.2019

Date of Decision :      04.11.2019

Kuldeep Kumar son of Roshan Lal r/o House No.1577, Ward No.23 Part I, Opp. & Near Lakshmi Palace Kotkapura, District Faridkot (Punjab).

...Complainant

Versus

1. Emerging India Infra and Developers Limited, SCO No.46-47, Sector 9 D, Chandigarh through Managing Director Mr Gurpreet Singh Sidhu.
2. Emerging India Infra and Developers Limited, Branch Office Faridkot Road, Near Railway Track, Kotkapura District Faridkot through its Branch Manager.

                                                           ........ OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh. Ajit Aggarwal, President,

Smt. Param Pal Kaur, Member.

Present:       Complainant in person,

                      OPs Exparte.

ORDER

(Ajit Aggarwal,  President)

 

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                                               Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to refund the amount of Rs.1,09,749/-with interest besides Rs.1,00,000/-as compensation for harassment and mental agony alongwith litigation expenses of Rs.20,000/-.

2                                              Briefly stated the case of complainant is that OPs approached him for the sale of plots in the colony situated at Kotkapura and various other places and also showed him layout plant of colony. OPs assured complainant that colony would be developed within six years and all amenities would be provided in it and on their assurance, complainant got ready to purchase the residential plots under S P Scheme in the said colony. Complainant met officers of OPs at Chandigarh who also assured him that project would be completed in time and possession of plot would be delivered to him with all facilities in colony. Complainant got booked residential plot of 1000 square feet and paid Rs.50,000/-to OPs on 28.12.2011 but even after passing of five years no development work started on site. Complainant approached Ops several times, but every time, OPs assured him that development work would be completed soon as there is some problem in starting the work, but later on they kept him off on one pretext or the other. On receipt issued by OPs for receipt of payment made by complainant and on acceptance letter dated 28.12.2011, maturity date is mentioned as 26.12.2017 and as per registration letter, after maturity OPs were to release either maturity

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amount of Rs.1,09,749/-or the plot allotted to complainant, but on maturity, OPs have neither released the maturity amount nor have given possession of plot to complainant. complainant approached OPs several times and made request for giving him possession of plot or for refund of his amount, but they have refused to listen to his genuine requests and refused refund his amount, which amounts to deficiency in service. It has come to the knowledge of complainant that OPs have not got license to develop colony which is a trade mal practice on their part. Complainant has prayed for directing OPs to refund Rs.1,09,749/- with interest and has also prayed for compensation of Rs.1,00,000/- besides Rs.20,000/- as cost of litigation. Hence, the complaint.

3                                              The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 2.07.2019, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                                               As per office report, notice issued to Ops through registered cover received back with report ‘Incomplete Address’ by Postal Authorities. As complainant did not have any other address of OPs, therefore, he moved an application for effecting service to OPs through publication. His application was allowed and OPs were duly served through publication in vernacular newspapers, but despite repeated calls on date fixed, no body appeared in the Forum on behalf of OPs

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either in person or through counsel to defend the allegations levelled by complainant and therefore, vide order dated 15.10.2019, both the Ops were proceeded against exparte.

5                                              Ld Counsel for complainant tendered in exparte evidence, affidavit of Kuldeep Singh/ complainant as Ex.C-1, and document Ex C-2 and then, closed the evidence on behalf of complainant.

6                                         Ld Counsel for complainant vehementally argued that OPs launched a project in Kotkapura representing and holding that they were developing the project and believing on assurance given by officials of OPs complainant applied to Ops for booking of plot measuring 1000 square feet for residential purpose and paid an amount of Rs.50,000/- to OPs on 28.12.2011. It is pleaded that complainant purchased the said property for residential purpose and as per agreement dt 28.12.2011, OPs were bound to obtain all kinds of NOC, permissions and income tax clearances before the time of registration of property, but despite passing of five years of agreement, no development work was started by them. No basic amenities for facilities have been provided by OPs and even it is transpired that OPs have no license to develop the colony. On acceptance letter dated 28.12.2011, maturity date is mentioned as 26.12.2017 and as per registration letter, after maturity OPs were to release either maturity amount of Rs.1,09,749/-or the plot allotted to

 

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complainant, but on maturity, OPs have neither released the maturity amount nor have given possession of plot to complainant. Complainant approached OPs several times and made request for giving him possession of plot or to refund his amount, but they have refused to listen to his genuine requests and refused refund his amount, which amounts to deficiency in service and it has caused financial loss, great harassment and mental tension to complainant. Complainant has prayed for accepting the complaint.

7                                              We have heard the exparte arguments addressed by ld counsel for complainant and have also carefully gone through the record available on the file.

8                                       The case of the complainant is that OPs launched a project for developing a colony in Kotkapura and on assurance of OPs that they would built the colony within six years and would also provide all basis amenities and facilities in said colony, complainant purchased a plot of 1000 square feet from them and made payment for it. Maturity period of six years expired, but till now, as per agreement, OPs have not developed the colony, neither they have provided any basic amenity there nor have refunded the maturity value of Rs.1,09,749/-to complainant,  which amounts to deficiency in service on their part.  In his support he has produced copy of agreement as Ex C-2, from which, it is clear that complainant paid amount to OPs for purchase of land measuring

cc no.-157 of 2019

1000 square feet. On this agreement letter dated 28.12.2011 issued by Emerging India Infra and Developers Ltd, it is clearly mentioned that date of maturity of this agreement is 28.12.2017 and after completion of span of six years, complainant would either get Rs.1,09,749/- or possession of plot measuring 1000/-square feet alongwith all facilities purchased by him, but OPs have failed to fulfil their promise. As the land which was agreed to be sold is situated at Kotkapura therefore, this Forum has jurisdiction to try and decide this complaint. Ld counsel for complainant argued that all the transactions between complainant and Opposite parties were made in Kotkapura and payment regarding plot was also made to OPs at their Kotkapura office and agreement was also executed between the parties at Koktapura, which comes in District Faridkot within the territorial jurisdiction of this Forum. So, this Forum has jurisdiction to try and decide this complaint.

9                                                   As complainant has made last payment to OPs on 28.12.2011 and agreement of sale was executed on 28.12.2011 and term of agreement was for six years and complainant has filed the present complaint within time of two years of completion of agreement and it is within limitation and thus, on the point of limitation, ld counsel for complainant has placed reliance on citation 2015 (3) Consumer Law Today, 16 titled as Satish Kumar Pandey & anr Vs M/s Unitech Ltd wherein our Hon’ble National Commission, New Delhi observed as Consumer Protection Act, 1986, Sections 2 (1) (g),  2 (1) (o) & 24 A –

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Housing Construction –Limitation – Delay in construction and possession by the builder – Plea of OP that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24 – A – Held - it is by now settled legal proposition that failure to deliver possession being a continuous wrong, it constitutes a recurrent cause of action and therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum-it is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24-A of the Consumer Protection Act would began to run-In that case the complaint has be to filed within two years from the date on which the seller refuses to deliver possession to the buyer.

10                                                From the above discussion and case law produced by the ld counsel for complainant, we are fully convinced with the arguments advanced by ld counsel for complainant. OPs are exparte in present case and there is no rebuttal from OPs side. Complainant has succeeded in proving his case. The act of OPs for receiving the payment of plot and not giving the possession of same after development within time amounts to deficiency in service and trade mal practice on their part.     

11                                    From the careful perusal of the record and keeping in view the case law produced by complainant, this Forum is fully convinced with the arguments advanced by ld counsel for

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complainant and is of considered opinion that OPs have been deficient in services and there is trade mal practice on the part of OPs in not handing over the received from complainant. Hence, the present complaint is hereby allowed.  OPs are directed to refund the amount of Rs.1,09,749/-to complainant with interest at the rate of 12% per anum from the date of maturity i.e 26.12.2017 till realization. Ops are further directed to pay Rs.5,000/-as compensation for harassment and mental agony suffered by him besides Rs.2,000/-as litigation expenses to complainant. OPs are directed to comply with the order within one month from the date of receipt of the copy of this order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copies of order be supplied to the parties free of costs under the rules. File be consigned to record room.

Announced in Open Forum

Dated : 4.11.2019

(Param Pal Kaur)                              (Ajit Aggarwal)

                              Member                                  President