Chandigarh

DF-II

CC/217/2021

Timple Jain - Complainant(s)

Versus

Meters and Instruments Private Limited - Opp.Party(s)

Adv. Arun Kumar

18 Mar 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No

:

217 of 2021

Date  of  Institution 

:

30.03.2021

Date   of   Decision 

:

18.03.2024

 

 

 

 

Timple Jain w/o Sh. Mohit Jain, Resident of House No. 12C, Hira Nagar, Patiala, Punjab through Attorney Rajat Jain s/o Rakesh Kumar Jain.

.... Complainant

VERSUS

1] Meters and Instruments Private Limited through its Managing Director, Corporate Office at 143-A, Industrial Area, Phase-1, P.O. Box No.619, Chandigarh.

2]  Pankaj K. Sehgal, the Managing Director, Meters and Instruments Pvt. Limited, Registered Office at P-4/90 (SF) Connaught Circus, New Delhi-110001.

3]  Real Tech Constructions Private Limited, through its Director, 143-A. Industrial Area, Phase-1, Chandigarh.

4]  Pankaj Dayal, Director, Real Tech Constructions Private Limited, D22, Defence Colony, New Delhi-110024.

5]  HDFC Bank Limited, through its Branch Manager, SCO 153-155, Sector 8-C, Madhya Marg, Chandigarh.

.....Opposite Parties

 

BEFORE:      MR.AMRINDER SINGH SIDHU,  PRESIDENT

                            MR.B.M.SHARMA             MEMBER

 

Present:-       Sh.Varun Bhardwaj, Counsel for the complainant

None for OPs No.1 & 2

OPs No.3 & 4 exparte

Ms.Neetu Singh, Counsel for OP No.5.

 

ORDER BY AMRINDER SINGH SIDHU, M.A (Eng.), LLM, PRESIDENT

1]       The complainant has filed the present complaint pleading that the complainant applied for a shop in the Mall for the purpose of earning her livelihood by means of self-employment in Centrally Air Conditioned Shopping Mall-cum-Multiplex known as City Emporio Mall at Industrial Area, Phase-1, Chandigarh and after paying an amount of Rs.13 lacs to OPs No.1 to 4, Space Allotment Agreement was executed between complainant and OPs No.1 to 4 and she was allotted Shop No.GF-5, Ground Floor, having super area of 228 sq. ft. @Rs.20417/- per sq. ft. totaling to Rs.46,55,000/- on 4.4.2008. MOU was also executed on 4.4.2008 between the complainant and OPs No.1 to 4 in respect of said unit.  The complainant also availed a loan against said Unit from OP No.5, which sanctioned it to the tune of Rs.37,24,000/- and out of this, Rs.25 lacs was also paid/disbursed to OP No.1 to 4 on 10.9.2008. It is submitted that the Basic Sale Price of the said Unit was Rs.46,55,000/- excluding other charges like PLC, IFMS etc. against which the complainant had paid Rs.55,25,000/-. It is stated that as per schedule payment plan 5% amount is to be paid at the time of exterior finishing and last 5% at the time of handing over the actual physical possession of the shop in the above said Mall.  It is also stated that as per MOU the OPs No.1 to 4 was to pay a sum of Rs.51,300/- as monthly assured return to the complainant but they paid the said monthly assured amount @Rs.51,300/- only for some time and thereafter failed to pay the same despite repeated requests of the complainant, as such, the complainant filed a Consumer Complaint No.47/2016 before the Hon'ble State Consumer Disputes Redressal Commission, U.T. Chandigarh, which was dismissed on 19.08.2016. It is submitted that aggrieved against the orders of Hon'ble State Commission, Chandigarh, the complainant filed the First Appeal bearing No.1805 of 2017 before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi and the said appeal was Disposed off on 21.02.2018 by setting aside the order dated 19.08.2016 passed by the Hon'ble State Consumer Disputes Redressal Commission, U.T. Chandigarh with a liberty to the complainant to avail other remedy seeking assured returns.

         It is pleaded that the allotment of the complainant was cancelled by the OPs Nos.1 to 4 on 19.05.2014 due to non-payment of remaining dues whereas, the remaining amount was to be paid by the OP No.5 Bank as it had already sanctioned the loan in favour of the complainant but the said amount was not paid by them to the OPs No. 1 to 4 despite requests, as a result, the OPs No.1 to 4 cancelled the allotment of the complainant. It is also pleaded that the OP No.5 in order to fill up their lacunas filed a civil suit for recovery against the complainant on 15.02.2017, which is pending before civil courts at Chandigarh and the complainant appeared in the said case on 14.02.2019. It is further pleaded that the complainant contacted the OPs No.1 to 4 after the disposal of appeal before the Hon'ble National Consumer Disputes Redressal Commission, New Delhi seeking refund of the amount of Rs.55,25,000/- already deposited by the her so that the loan be repaid to OP NO.5 and account be settled with them but they kept on delaying the matter on one pretext or the other but did not refund the money.  Hence, this complaint has been filed by the complainant against the OPs seeking directions to the OP No.1 to 4 to refund an amount of Rs.55,25,000/- minus 10% of earnest money with interest as well as compensation for mental agony, harassment and litigation expenses.

 

2]       After service of the notice, the OPs No.1 & 2 initially appeared through counsel but did not turn up thereafter nor file written version within stipulated period, hence the defence of OPs No.1 & 2 was stuck off vide order dated 07.07.2022.

3]       The OPs No.3 & 4 did not turn up despite service of notice through publication, hence they were proceeded exparte vide order dated 09.03.2022.

4]       The OP No.5/HDFC Bank has put in appearance and filed written version stating that it was the complainant who approached the answering OP No.5/HDFC to avail the Non-Residential Premises (NRP) Loan through the loan application form and on the basis of repayment capacity & willingness to repay the loan shown by the complainant, a Loan Agreement was executed between the complainant and OP No.5 i.e ., HDFC Ltd.  It is stated that as the loan was taken by the complainant in her individual capacity, it is her liability to repay the same. It is also stated that till date the answering OP has disbursed an amount of Rs.25,00,000/- only (Ann.OP-5/2 & OP-5/3). It is submitted that the OP No.5/HDFC Limited has filed a civil suit bearing No.CSCJ-238-2017 for recovery of disbursed loan amount amounting to Rs.27,11,347/- as on 10.02.2017 along with interest @ 18 % p.a. against the complainant and OPs No.1 & 3 which is pending adjudication before the Hon'ble Civil Court, Senior Judge, Chandigarh (Ann.OP-5/1).  It is submitted that it is the complainant who has defaulted in making timely installments as per terms & conditions of the Loan Agreement. Denying other allegations, the OP No.5 lastly prayed for dismissal of the complaint qua it.

 

5]       Parties led evidence in support of their contentions.

6]       We have heard the ld.Counsel for the contesting parties and have gone through the documents on record including written submissions.

7]       From the documents on record as well as the pleadings, it is observed that the consumer complaint earlier filed by the complainant bearing CC No.47/2016 before the Hon’ble State Consumer Disputes Redressal Commission, U.T., Chandigarh qua the controversy & issue in hand in respect of the Shop/Unit in question, has admittedly been dismissed on 19.8.2016 (Annexure C-11).  Further the appeal preferred by the complainant against the said order of the Hon’ble State Consumer Disputes Redressal Commission, U.T., Chandigarh, before the Hon’ble National Consumer Disputes Redressal Commission, U.T., Chandigarh i.e. First Appeal No.1805 of 2017 was dismissed as withdrawn with liberty to the complainant/appellant to avail such a remedy other than a consumer complaint as may be open to her in law (Ann.C-12) vide order dated 21.2.2018, which is also reproduced as under:-  

        “The learned counsel for the appellant submits that he would be satisfied if the complaint is allowed to be withdrawn with liberty to the complainant to approach the Court or Forum other than the Consumer Forum for the redressal of her grievances.

        In view of the said request the impugned orders are set aside and the complaint is dismissed as withdrawn with liberty to the complainant / appellant to avail such a remedy other than a consume complaint as may be open to her in law.”

8]       From the above, it is clear that the complainant was at liberty to avail any other remedy other than the consumer complaint, as provided by the order of Hon’ble National Commission, referred above. However, she again preferred to file the present consumer complaint. Thus the complainant is estopped from her own act & conduct and therefore, the present consumer complaint is not maintainable. Hence, it is dismissed with a liberty to file fresh before any Competent Authority/Civil Court other than Consumer Commissions. Though this complaint deserves to be dismissed with cost yet taking a lenient view cost is not imposed upon the Complainant.

9]       Taking into consideration the above findings, the present consumer complaint stands dismissed. No order as to costs.

 

10]      The pending application(s) if any, stands disposed of accordingly.

        The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.

Announced

18.03.2024                                                                    

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER

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