Punjab

StateCommission

FA/16/2014

Skyrock City Welfare Society - Complainant(s)

Versus

Kamal Jeet - Opp.Party(s)

Kulwinder Singh

23 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,   PUNJAB  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

  First Appeal No.16 of 2014                                                      

            Date of institution  :    08.01.2014 

Date of decision     :    23.02.2015

 

1.      Skyrock City Welfare Society (Regd.), through its President,    SCO 672, Sector-70, Mohali.

2.      Navjeet Singh, President, Skyrock City Welfare Society (Regd), through its President, SCO 672, Sector-70, Mohali

…….Appellants/Opposite Parties

Versus

Kamal Jeet Singh S/o Partap Chand, R/o H.No.272, Ramesh Park, Lakshmi Nagar, Delhi.

                                                          …Respondent/Complainant   

First Appeal against the order dated 05.09.2013 of the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali).

Quorum:- 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Baldev Singh Sekhon, Member.

                        Mrs. Surinder Pal Kaur, Member.

Present:-

          For the appellants     :        None.

          For the respondent   :        Sh. Deepak Goyal, Advocate.

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    This appeal has been preferred by the appellants/ opposite parties against the order dated 05.09.2013 passed by District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short, “District Forum”), vide which the complaint filed by Kamal Jeet Singh, respondent/complainant,  under Section 12 of the Consumer Protection Act, 1986, was allowed and the opposite parties were directed to refund him the deposited amount of Rs.2,62,500/-, along with interest @ 9% per annum from the date of deposit till realization of that amount and to pay Rs.50,000/-, towards compensation and litigation expenses.

2.           The complainant alleged, in his complaint, that having allured by the publicity made by the opposite parties and their staff, he opted to purchase one plot of 100 sq.yds. in their project named; “Skyrock City Welfare Society”, after the representation was made that all the approvals of the Govt. Authorities were under way and the project shall have all the basic amenities necessary for urban living. He made payment of Rs.2,62,500/- towards earnest money in July, 2011 and it was assured by the opposite parties that the project shall be approved in September, 2011 and the balance payment towards the sale consideration shall be from the financial institutions, as loan.  It was made clear by him at that juncture itself that he was not in a position to pay any further money and, as such, he shall be acquiring loan from such financial institutions. Thereafter, he visited the opposite parties a number of times with a request to give the sanction letter and the list of financial institutions; which were offering the loan towards the sale consideration of the residential plots, but he was not given any satisfactory response.  With a motive to delay the matter on one pretext or the other, he was asked to come after some time. In the month of April, 2012, he received a phone call from the office of the opposite parties for making payment of the instalments. He visited their office in the month of May and received written intimation about the payment of those instalments. He requested them to refund his money, on the ground that the project was not sanctioned, but they failed to live up to their promise.  He was asked to fill in various documents and was assured that the money would be refunded, along with interest @ 18% within seven working days. His cancellation request dated 26.05.2012 was duly accepted by the opposite parties. He did not receive the refund within the promised period and thereafter, he visited their office and was assured that the cheque would be sent to him within three or four days. The refund was never made, though he visited their office repeatedly. Thus, they are guilty of deficiency in service and unfair trade practice, as they sold plots without taking requisite approvals, with an object to pocket the money of innocent persons. He prayed for the issuance of directions to the opposite parties to make the payment of Rs.2,62,500/-, as the refund of the earnest money; Rs.11,000/-, as cost of litigation; and Rs.50,000/-, as compensation, along with interest @ 12% per annum.
3.           The complaint was contested by the opposite parties, who filed joint written reply before the District Forum. In the written reply, they admitted the receipt of Rs.2,62,500/- from the complainant towards the allotment of residential plot of 100 sq.yds. and the issuance of letter dated 14.05.2012, raising demand of the second instalment. While denying the other allegations made in the complaint, they pleaded that opposite party No.1 is a welfare society, having no motive to earn the profits. With the help of the instalments being received from the members against the registration of plots, the land is purchased and the same are also utilized for the payment of external development charges etc., in order to make the project feasible. The complainant himself became member of opposite party No.1 society for the allotment of the plot in the society @ Rs.10,500/- per square yard, against membership No.2595. The sum of Rs.2,62,500/- was not the earnest money, but was the first instalment towards the price of the plot. The project was the joint venture of all the members of the society, who collectively work for the feasibility of the project and deposit the instalments as per requirement towards the internal development charges, external development charges, change of land user etc. The complainant himself surrendered his membership and transferred the plot to another member of the society and returned the receipts.  The share certificate was to be issued to the member, only after the payment of 55% of the total amount. To make the project feasible, for which the funds were required for the above said purposes, the complainant was asked to make payment of the second instalment and it was also intimated that in case of his failure to deposit that instalment, the whole of the amount already deposited shall be refunded and his membership shall be cancelled. After that he opted for the surrender of his membership and received full and final payment in cash from the other member; named, Harjit Singh S/o Lachhman Singh, to whom he sold the plot on 02.01.2013 and submitted affidavit to that effect. After that, he ceased to be the member of the society. Therefore, he is not their consumer and he does not fall within the definition of the “consumer”. The complaint filed by the complainant is not maintainable and he has not approached the District Forum with clean hands. They prayed for the dismissal thereof with heavy costs.
4.           Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.
5.           We have heard the learned counsel for the respondent, as no one appeared on behalf of the appellants.  We have also carefully gone through the records of the case.
6.             The order passed by the District Forum has been challenged by the appellants, on the grounds detailed in the memorandum of appeal. Their main ground is that the District Forum lost sight of the fact that the complainant himself gave an application for the transfer of membership in favour of Harjit Singh on 26.05.2012 and after receiving the total amount, so paid by him, returned the original receipts and executed the documents  in favour of said Harjit Singh and, as such, he was not entitled to the refund of any such amount, as claimed in the complaint and that it cannot be said that there was any deficiency in service or unfair trade practice on their part.
7.           It was submitted by the learned counsel for the complainant that the complainant did apply to the opposite parties for the cancellation of his membership, but the amounts so deposited were not refunded; though opposite party No.1 society was bound to refund the same, in case he opted to withdraw from membership and that fact was admitted in so many words by the opposite parties in their written reply. Therefore, the District Forum did not commit any illegality while making an order for refund of the amount claimed in the complaint and awarding compensation, by keeping in view the loss and injury suffered by the complainant.
8.           The District Forum, while recording a finding in favour of the complainant, came to the conclusion that though there was request by the complainant for the sale of his share in favour of Harjit Singh, but no evidence was produced for proving that the transfer was actually effected and the share of the complainant was transferred in favour of said Harjit Singh. The refund was ordered by observing that the opposite parties are bound by their own acts of promise, mentioned in Ex.C-2 dated 26.05.2012.   
9.           Merely on the basis of this  letter dated 26.05.2012, Ex.C-2, the District Forum was not justified in recording a finding in favour of the complainant; by ignoring the other evidence produced on the record. That letter was to be considered in the light of the other evidence.  It is an admitted fact that opposite party No.1 is a society and the complainant became a member thereof by depositing Rs.10,000/-, vide receipt Ex.OP-6. Thereafter, he paid Rs.2,62,500/- as the 25% of the cost price of the land, vide receipt Ex.OP-5. The opposite parties in support of their averments, made in the written reply that the complainant has already transferred his share to Harjit Singh and has received the full and final amount from that Harjit Singh, proved on record the letter dated 26.05.2012 written to the society by the complainant Ex.OP-2. In that letter, he specifically mentioned that he has agreed to transfer his Registered No./Booking No.2595 in favour of Harjit Singh and that the same be transferred in his name in the records of the society. He had also sworn an affidavit Ex.OP-1 that he had sold his membership to Harjit Singh with his free will and has received the full and final settled/sale price from him. He had also deposed in that affidavit that he had delivered the original documents to the purchaser and had applied for the transfer of the application/plot in his favour.  The very fact that the receipts Ex.OP-5 and Ex.OP-6 are coming from the possession of the opposite parties itself shows that those receipts were returned by the complainant to the society and were duly cancelled. Merely mentioning of the fact in the letter dated 26.05.2012 Ex.C-2 that the cancellation request of the complainant has been accepted and the refund proceedings will pursue within seven days, does not mean that the opposite parties admitted their liability to pay the amount claimed in the complaint. They had only promised to pursue the refund proceedings. There is no question of any refund being made to him, as he had already received the amount, so paid by him to the purchaser, from Harjit Singh, to whom he transferred his membership/plot. The District Forum committed an illegality by ignoring all this evidence and by recording a finding in favour of the complainant, merely on the basis of the above said letter; which could not have been considered independently of the other evidence produced on the record. Once the complainant has transferred his membership/plot to Harjit Singh, his only remedy is against said Harjit Singh.
10.           In the result, this appeal is allowed, the order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed.
11.           The appellants had deposited a sum of Rs.25,000/- at the time of filing of the appeal. They deposited another sum of Rs.1,84,944/- on 28.01.2014 in compliance of the order dated 16.01.2014 passed by this Commission. Both these sums along with interest which has accrued thereon, if any, shall be remitted by the registry to appellant No.1 by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
12.           The arguments in this case were heard on 20.02.2015 and the order was reserved.  Now, the order be communicated to the parties.
13.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

 

 

                                                        (JUSTICE GURDEV SINGH)

                                                                       PRESIDENT  

                                                         

 

 

                                                        (BALDEV SINGH SEKHON)

                                                                         MEMBER

                                                         

 

 

                                                      (MRS. SURINDER PAL KAUR)

February 23, 2015                                       MEMBER

(Gurmeet S)