Punjab

Faridkot

CC/16/185

Gamdoor Singh - Complainant(s)

Versus

MGK Agriculture Holding Developers Ltd. - Opp.Party(s)

Jaswinder Singh Dhillon

20 Apr 2017

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

Complaint No. :         185

Date of Institution :    05.07.2016

Date of Decision :      20.04.2017

Gamdoor Singh aged 43 years s/o Rajinder Singh r/o village Dhiman Wali, Tehsil Kotkapura, District Faridkot.

...Complainant

Versus

1. MGK Agriculture Holding Developers (India) Ltd, Registered Office : Akalsar Chowk-Dosanjh Road, Moga-142001, Punjab, India through its M D Pipal Singh Sidhu Head Office Akalsar Chowk-Dosanjh Road, Moga District Moga.
2. MGK Agriculture Holding Developers (India) Ltd, Registered Office at 1^st Floor on HDFC Bank, Faridkot through its Branch Manager Sunny Sethi through its Head Office, Akalsar Chowk-Dosanjh Road, Moga District Moga.                                                                              ........ OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh. Ajit Aggarwal, President,

Sh P Singla, Member.

 

Present:       Sh J S Dhillon, Ld Counsel for Complainant,

                    OPs Exparte.

 (Ajit Aggarwal,  President)

                                                        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.2,50,00/-with interest besides Rs.50,000/-as compensation for harassment and mental agony alongwith litigation expenses of Rs.11,000/-.

2                                               Briefly stated the case of complainant is that OPs run the business of real estate in state of Punjab through Newspaper, Print Media etc and believing the representations and assurance given by officials of OPs at Faridkot complainant entered into an agreement with Ops on 17.05.2013 to purchase 1800 square yards  property comprising of khasra no.199/1-1800.00 ID no.38 at village Balpur Mal, Tehsil Dindori, District Dindori, at Madhya Pradesh. As per terms and conditions of agreement, complainant made payment of Rs.2,50,000/- from 17.05.2013 to 11.05.2015 in instalments of  Rs.10,000/- for  every  month.  All the  payment was paid by complainant at the Faridkot office of OPs through the agent of OPs. After making enquiry by visiting the site at Madhya Pradesh,  complainant  came  to  know  that  there                   was no  property  in  the name  of  Opposite Parties  and they  have   played fraud  with  complainant.  Complainant  met  the    officers    of    Ops Company both at Faridkot and Moga, who assured complainant that his property would be delivered to him in Faridkot or  whole  amount  would  be  refunded  to

complainant, but till date, they have not made any payment to complainant. It is further submitted that though complainant has made entire payment of agreement to Ops, but they have not even issued any allotment letter to complainant and have also not paid anything to him on expiry of agreement. Complainant made several requests to OPs to refund his entire amount but Ops, did not listen his requests and flatly refused to admit his genuine request, which amounts to deficiency in service. This act of OPs has caused financial loss, great harassment and mental tension to complainant, which amounts to deficiency in service and unfair trade practice. Complainant has prayed for directing OPs to pay Rs.2,50,000/-with interest and has also prayed for compensation of Rs.50,000/- besides cost of litigation. Hence, the complaint.

3                                    The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 13.07.2016, 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 of Postal Authorities as “addressee left’. Thereafter, notice was served through publication and it is presumed that OPs have sufficient knowledge of notice issued against them. Despite making several calls to OPs, no body appeared in the Forum on behalf of Ops on date fixed either in person or through counsel, therefore, after waiting for a long period till 4.00 O’ clock, Ops were proceeded against exparte vide order dt 7.03.2017.

5                                   Ld Counsel for complainant tendered in exparte evidence, affidavit of complainant as Ex.C-1 and document Ex C-2 and Ex C-3 and then, closed the evidence on behalf of complainant.

6                                    Ld Counsel for complainant vehementally argued that OPs run the business of real estate in state of Punjab through Newspaper, Print Media etc and believing the representations and assurance given by officials of OPs at Faridkot, complainant entered into an agreement with Ops on 17.05.2013 to purchase 1800 square yards property comprising of khasra no.199/1-1800.00 ID no.38 at village Balpur Mal, Tehsil Dindori, District Dindori, at Madhya Pradesh. As per terms and conditions of agreement, complainant made entire payment of Rs.2,50,000/- from 17.05.2013 to 11.05.2015 in instalments of Rs.10,000/- for every month. All the payment was paid by complainant at the Faridkot office of OPs through the agent of OPs. After making enquiry by visiting the site at Madhya Pradesh, complainant came to know that there was no property in the name of Opposite Parties and they have played fraud with complainant. Complainant met the officers of Opposite Parties Company both at Faridkot and Moga, who assured complainant that property of complainant would be delivered to him in Faridkot or whole amount would be refunded to

complainant, but till date, they have not made any payment to complainant. It is further submitted that though complainant has made entire payment of agreement to Ops, but they have not even issued any allotment letter to complainant and have also not paid anything to him on expiry of agreement. Complainant made several requests to OPs to refund his entire amount but Ops, did not listen his requests and flatly refused to admit his genuine request, which amounts to deficiency in service. This act of OPs has caused financial loss, great harassment and mental tension to complainant, which amounts to deficiency in service and unfair trade practice. Complainant has prayed for accepting the present complaint alongwith compensation and litigation expenses.

7                                     As there is no rebuttal from OPs side therefore 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 believing the assurances and representations of Ops, the complainant purchased property of 1800 square yards situated at Madhya Pradesh from Ops and paid Rs.2,50,000/-for this in 25 instalments from 17.05.2013 to 11.05.2015, but later on he came to know that there is no property in the name of Ops at Madhya Pradesh. He approached officials of Ops at Faridkot and Moga, who assured that his property would be delivered to him or his entire amount alongwith interest would be refunded to him, but Ops did not come upto their promises and did not pay anything to complainant. Complainant made several requests to Ops to refund his entire amount but all in vain, which amounts to deficiency in service and trade mal practice on their part. However, from the perusal of document Ex C-2 the copy of agreement between complainant and Ops, ExC-3 is receipt dt 11.05.2015 and from this, it is clear that complainant deposited Rs.2,50,000/- with Ops and estimated value on expiry of agreement comes to be Rs.8,40,000/- for which complainant has prayed for directions to Ops to make refund. Ex C-3 reveals the date 11.05.2015 and receipt itself shows that it was 25^th receipt issued by Ops in lieu of payment of Rs.2,50,000/-received from complainant and it also proves the pleadings of complainant that he made payment of Rs.2,50,000/-to complainant from 17.05.2013 to 11.05.2015 in instalments of Rs.10,000/-each for 25 months. Thus, it is illegality on the part of Ops to retain the huge amount of complainant for long time without any reason and they are liable to make refund of this amount to complainant. As the land which was agreed to be sold is situated at Madhya Pradesh and this Forum has jurisdiction to decide this complaint. Ld counsel for complainant argued that all the transactions between the parties were made at Faridkot. The payment regarding plot was also made to OPs at their Faridkot office and agreement was also executed between parties at Faridkot within the territorial jurisdiction of this Forum. So, this Forum has jurisdiction to try and decide the complaint. He put reliance on citation 2005(3) Consumer Protection Judgements 581 titled as Divisional Railway Manager/Commercial, Southern Railway Vs Jasbir Singh decided by Union Territory Consumer Disputes Redressal Commission, Chandigarh wherein they held that plead of lack of territorial jurisdiction was arose on the ground that train originated from Ernakulam in the State of Kerala and the destination station was New Delhi and as such, District Forum, Chandigarh has territorial jurisdiction to adjudicate the complaint. The Hon’ble State Commission observed that so far as the booking of ticket from the website of the Indian Railways at Chandigarh is concerned, it has been admitted and once this fact is admitted then a part of cause of action arose at Chandigarh where the tickets were booked on website and the tickets were delivered at Chandigarh, u/s 11 (2) (c) of the Consumer Protection Act, 1986, which provides that complaint shall be instituted in a District Forum within the local limits of whose jurisdiction. In our considered opinion, the District Forum was right in holding that it had territorial jurisdiction to entertain and adjudicate the complaint cases and the arguments advanced by the ld counsel for the appellants to the contrary has no merit. In order to prove that  this Forum has jurisdiction to decide the present complaint, ld counsel for complainants has placed reliance on citation in case law 2014 (2) Consumer Law Today titled as Ms Dilshad Gill Vs M/s EMAAR MGF Land Pvt Ltd & Ors, wherein Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U T Chandigarh has observed that Consumer Protection Act, 1986, Section 11-Territorial Jurisdiction-Flat at Chandigarh-Apart of Cause of action, accrued to the complainant at Chandigarh and as such, this Commission has the territorial jurisdiction to entertain and decide the complaint. In present case also, the payment is received by Ops from complainant at Faridkot as per Expression of Interest-cum-Agreement. It is further argued that Ops received payment at Faridkot as their Branch Office is situated at Faridkot.

9                          Complainant has made last payment to OPs on 11.05.2015 and agreement of sale was executed on 17.5.2013 i.e more than two years ago from the date of filing the complaint 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, Sections2 (1) (g), 2 (1) (o) & 24 A 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                                    It is further argued that the whole agreed price of land in dispute is Rs.6,00,000/-and complainant has made payment of Rs.2,50,000/-and thus, complainant has not made the entire payment of land, therefore, ld counsel for complainant has relied upon case law cited as 2015 (3) Consumer Law Today, 48 titled as EMAAR MGF Land Ltd and anr Vs Dilshad Gill, wherein our Hon’ble National Commission, New Delhi has observed that “ Consumer Protection Act, 1986, Section 2 (i) (g)- Housing Construction–Delay in possession by appellant/Builder- Complainant/respondent defaulted in payment- Held- Appellants themselves have violated the material conditions with regard to handing over of the possession, now, it does not lie in their mouth to demand further payment from the respondent-The respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period. Hon’ble National Commission decided that if OPs have failed to hand over the possession in time, then, they can not demand further payment from the complainant.

11                                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. Complainant has succeeded in proving his case. The act of OPs for receiving the payment of land and not giving the refund of same as agreed between parties amounts to deficiency in service and trade mal practice on their part.     

12                             From the careful perusal of the record and keeping in view the case law produced by complainant, this Forum is of considered opinion that OPs have been deficient in services and there is trade mal practice on the part of OPs in not making refund of amount deposited by him with them despite several requests and also failed to return the amount received from complainant. Hence, the present complaint is hereby allowed. Therefore, OPs are directed to refund the amount of Rs.2,50,000/- to complainant with interest at the rate of 12% per anum from the date of payment i.e 11.05.2015 till final realization. Ops are further directed to pay Rs.5,000/-as compensation for harassment and mental agony suffered by him besides Rs 3000/-as litigation expenses to complainant. Opposite Parties 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 this order be supplied to the complainant as well as Opposite parties free of costs under the rules. File  be  consigned  to  record  room.

Announced in Open Forum

Dated : 20.04.2017

                                                 Member                         President

                    (P Singla)                       (Ajit Aggarwal)