BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                  Consumer Complaint No.285 of 2014

                                 Date of institution:          06.05.2014

                                                 Date of Decision:            03.06.2015

Suresh Pal, # 1575, Burail, U.T. Chandigarh.

    ……..Complainant

                                        Versus

1.     Harish Thapar, General Manager, JCT Electronics Ltd. A-32, Indl. Area, Phase-8, Mohali.

2.     Gopal Krishna, Company Secretary, JCT Electronics Ltd. Thapar House, 124, Janapath, New Delhi 110021.

3.     Rajive Chandak, Secretary to ASC, Asset Reconstruction Company (I) Limited, The Ruby, 10^th Floor, 29, Senapati Bapat Marg, Dadar West, Mumbai 400 028.

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh, Member

Mrs. R.K. Aulakh, Member.

Present:    Complainant in person.

Shri Raj Kaushik, counsel for OP Nos.1 and 2.

Shri Saurav Goyal, counsel for OP No.3.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Parties (for short ‘the OPs’):

(a)    to pay him interest on the amount deposited with the OPs.

(b)    to pay him Rs.10,00,000/- on account of harassment caused to him.

                The complainant’s case is that in pursuance to the auction notice dated 03.06.2013 Ex.C-1 he participated in the auction and was allotted MIG flat by the OPs.  An offer letter dated 18.07.2013 Ex.C-2 was issued by the OPs in which it was mentioned that 50% of the bid amount is to be paid by 01.09.2013 and the balance by 16.10.2013 and after full payment, possession and transfer of title would be done.  The complainant informed the OPs that he will be availing loan facility from the bank and for this purpose related documents have to be provided.  However, the complainant paid more than 50% of the amount on 12.08.2013 by taking personal loan and withdrawals from PF and for remaining 50% he applied for loan.  As demanded by the financial institution, the complainant applied on 23.08.2013 for NOC from GMADA by paying the required fee as per the documents provided by the OPs.  However, the OPs did not give proper authorization letter to GMADA to sell the property to the complainant. The complainant asked the OPs many a times to furnish all the required documents by GMADA but the OPs delayed the matter. The complainant received the NOC on 18.12.2013 but as per the bid condition the last date for payment was 16.10.2013. However, after receipt of full payment on 06.02.2014, the OPs have not given possession of the MIG flat to the complainant. The complainant is ready to pay the delay charges though it is not due to his fault.  The bank is asking the complainant for mortgaging the property.  Thus, with these allegations the complainant has filed the present complaint.

2.             OP Nos.1 and 2 in the joint written statement have pleaded in the preliminary objections that JCT Electronics who is owner of the flat in question has been declared sick industrial unit by Board for Industrial Financial Reconstruction (BIFR) on 12.12.2005 and after declaration as sick, all the assets of the OPs vests with the BIFR and the company cannot sell its assets without the written permission/order of BIFR.  BIFR has ordered constitution of Assets Sale Committee (ASC) to proceed with the finalization/selection of prospective bidders for sale of the entire land at Mohali together with the buildings, structures thereon etc.  The ASC in terms of BIFR directions advertised sale of flats through bidding process and the bid of the complainant was accepted. The complainant was duly intimated about the acceptance of bid vide letter dated 18.07.2013.  The OPs have nothing to do with the delay in issuance of NOC by GMADA and the OPs cannot be held liable for negligent in rendering deficient services to the complainant.  It was for the complainant to make arrangement of funds before and after making the bid. The OPs or the ASC has no authority to dilute or waive off any condition of bid document and only the BIFR has the authority/power in this regard.  Thus, the OP No.1 and 2 have sought dismissal of the complaint against them.

3.             OP No.3 in its written statement has pleaded in the preliminary objections that Mr. Rajiv Chandak was never ever holding the position of Secretary of the OP.  The OP Nos.1 and 2 had been declared sick industrial unit by BIFR on 12.12.2005.  It was specifically mentioned in the letter dated 18.07.2013 that in the event of failure to full the duties and obligations in terms of the bid document, the amount paid by the complainant shall stand forfeited.  The complainant was required to deposit 50% amount by 01.09.2013 and balance i.e. Rs.10,02,500/- by 16.10.2013. The complainant paid the balance amount of Rs.2,15,000/- on 06.02.2014 against the stipulated date of 16.10.2013.  OP No.3 has filed application No.316 of 2002 in BIFR requesting for waiver of interest for delayed payment and handing over the possession to the complainant which was dismissed by the BIFR vide order dated 20.05.2014.  The OP will again approach to BIFR for approval for handing over the possession with 15% interest per annum for extended period due to delayed payment.  This Forum does not have any jurisdiction as the case is pending before the BIFR.  Thus, denying any deficiency in service on its part, OP No.3 has also sought dismissal of the complaint.

4.             Evidence of the complainant consists of his affidavit Ex.CW-1/1; copies of documents Ex.C-1 to C-6.

5.             Evidence of OP Nos.1 and 2 consists of affidavit of Harish Thapar their GM Ex.OP-1/1 and affidavit of Gopal Krishnan, Company Secretary Ex.OP-1/2 and document Ex.OP-1.

6.             Evidence of OP No.3 consist of affidavit of Anil Dalmia, its authorized representative Ex.OP-3/1 and copies of documents Ex.OP-2 to OP-8.l

7.             We have heard the complainant in person and learned counsel for the OPs and have gone through the written arguments filed by the OPs.

8.             Admittedly the OP Nos. 1 and 2 i.e. JCT Electronics Ltd. are under liquidation and proceedings are pending before BIFR New Delhi. Admittedly the BIFR has appointed OP No.3 to deal with the assets of OP No.1 and 2. Admittedly OP No.3 has floated a tender for sale of MIG flats of the OP Nos.1 and 2. Admittedly the complainant alongwith others three are successful bidders. Admittedly as per terms of tender the successful bidder was to pay the following amount as per schedule:

9.             Admittedly the complainant has paid 50% of the bid on 01.09.2013 and the balance was to be paid on 16.10.2013 and thereafter the possession and transfer of the title was to be done in favour of the complainant as per Ex.C-2. Admittedly the complainant has paid first installment of 50% by the due date and has not paid the balance amount by the cut off dated i.e. 16.10.2013. The reasons for non deposit of the balance amount, as stated by the complainant, that he could not arrange bank loan due to non availability of necessary documents relating to the property which were to be provided by the OP Nos.1 and 2. Therefore, due to acts of omission and commission of OP Nos.1 and 2 could not raise loan and defaulted in making payment of the balance amount on due date. The complainant moved an application to the OPs giving him extension in making the balance payment alongwith interest. The Ops have accepted the balance payment from the complainant on 06.02.2014 and the issue of payment of interest on the delayed payment has been referred by OP No.3 to the BIFR and the subject matter regarding interest on delayed payment is still pending with the BIFR. The grievance of the complainant is that since all the successful bidders are on the same footing as they have paid the principal amount of the bid, though after delay of the cutoff date and shown their willingness to pay the interest on the delayed amount, at the instance of the OP No.3, OP No.1 and 2 have given the possession to one of the successful bidder i.e. Mr. Anish Sharma, discriminating the complainant against the another successful bidder. The acts of handing over the possession to one successful bidder and depriving the possession to the complaiannt during the pendency of matter before BIFR, is an act of deficiency in service and unfair trade practice on the part of the OPs for which the complainant has sought compensation on account of arbitrary act of the OPs causing financial loss and mental agony to the complainant.

10.           In order to prove his case the complainant has proved on record the notice for sale Ex.C-1 and acceptance of his bid for MIG flat located at Phase-XI Mohali dated 18.07.2013 Ex.C-2 .  The date for payment of remaining amount was 16.10.2013 as per terms of the bid. The complainant has admittedly not made the said payment in time, and vide Ex.C-4 sought time to make the payment by raising loan from some financial institution and finally made the balance payment on 06.02.2014. Thus, there was delay on his part in making the balance payment.  Though the OPs have received full and final payment, however, after delay of about four months for which the complainant was willing and ready to pay the interest and the ASC (OP No.3) has referred the matter to the BIFR which is still pending for adjudication.  As per the complainant during the pendency of issue before BIFR the complainant has been discriminated against by the acts of the OPs as the OPs have given the possession of the flat to another successful bidder Shri Anish Sharma who is similarly situated as that of the complainant i.e. Anish Sharma was also defaulter in making full payment and his issue of interest on the delayed payment is pending before the BIFR in the same application as that of the complainant in application No.316 of 2002 and application No.2 of 2015.  The issue for determination is whether OP No.3 has exceeded in his jurisdiction of terms and conditions of the notice of bid Ex.C-1 and whether the act of OPs is an arbitrary act discriminating complainant against another successful bidder Shri Anish Sharma resulting deficiency in service and unfair trade practice.

11.           In order to appreciate the first issue i.e. whether OP No.3 has exceeded in his jurisdiction of terms and conditions of the notice of bid Ex.C-1. Admittedly all the four successful bidders of the bid have defaulted in making payment of the second installment. As per terms of bid document Ex.C-1 and intimation letter Ex.C-2 wherein it has been clearly mentioned that in the event of failure to fulfill the duties and obligations by the successful bidder, in terms of bid document, the money paid by the bidder shall stand forfeited.  To illustrate it further we have perused Ex.OP-6 dated 12.10.2010 i.e. procedure and guidelines to be followed by ASC appointed by BIFR for sale of assets of six companies.  The relevant paras regarding delay in payment are para- 9 to 13. As per guidelines the time frame for making payment has been fixed i.e. purchase consideration in two installments of 50% and balance amount of total selling price minus EMD amount respectively before the end of 45 days and 90 days respectively from the date on which intimation regarding the final acceptance of the bid is dispatched by him by registered post/speed post at his notified address of the successful bidder. In case default in making payment, the ASC to accept the delayed payment alongwith interest @ 15% per annum with the prior approval of the Board.

12.           Admittedly the complainant has received intimation regarding acceptance of bid Ex.C-2 dated 18.07.2013. Admittedly the complainant has made the remaining payment after a delay of four months on 06.02.2014 Ex.C-6. The said delayed payment without interest has been accepted by OP No.3 without the proper prior approval of the Board as the OPs have failed to produce any prior approval from the Board on record in this regard. After accepting the payment, the OP No.3 has moved the application for acceptance of the interest on delayed payment and the same is pending before BIFR. Thus, the acceptance of delayed payment without interest and without the prior approval of the Board by OP No.3 is an act of exceeding its jurisdiction.

13.           The next question whether the complainant is discriminated against by the act of OPs i.e. giving the physical possession of the property to one Shri Anish Sharma another successful bidder and similarly situated as that of the complainant, during the pendency of the case of all the successful bidder including the complainant and one Shri Anish Sharma pending before the BIFR. In this regard all through the proceedings the OPs have denied commission of any such act. However, when the record was summoned and one officer from the ASC appeared before us has admitted that their office has issued the instructions to OP Nos.1 and 2 to release the physical possession of the property to one Shri Anish Sharma during the pendency of the issue before BIFR. In this regard he has produced the e-mail dated 02.01.2014 Mark-X wherein the OP No.3 has admitted having received all the payment from Shri Anish Sharma towards his bid for flat No.1334/4 Phase-XI, Mohali and give the possession of the flat to Anish Sharma. The said e-mail is duly received by OP Nos.1 and 2 and accordingly OP Nos.1 and 2 have put Anish Sharma into physical possession of the flat. Besides giving him the possession, OP No.3 has taken on himself to waive the interest through circular resolution and seek and agreed to seek post approval from the BIFR. All the three acts mentioned in the said e-mail i.e. putting Anish Kumar into possession of property, intention to waive the interest through circular resolution and seeking post approval from BIFR particularly when the BIFR is already seized of the matter in MA No.316 of 2002 and No.2 of 2015 is an arbitrary act which is writ large on the part of OP No.3. Further acting upon the e-mail by OP Nos.1 and 2 during the lis pending before BIFR is an act of haste and arbitrary conduct on their part leading to the conclusion that there is collusion between all the OPs to discriminate the complainant against one Shri Anish Sharma for the reasons best known to them.  Definitely the act of the OPs in this regard, being an arbitrary act, is an act of deficiency in service and unfair trade practice writ large on their part.

14.           Since negative equality is not permissible under law, therefore, we may not be able to direct the OPs to give the same treatment to the complainant as they have done in favour of one Shri Anish Kumar, however, it will be appropriate for the OPs to take necessary steps and expedite the matter pending before the BIFR.

15.           As narrated above for the acts of omission and commission on account of deficiency in service and unfair trade practice committed by the OPs, the complaint deserves to be allowed and the complainant deserves to be compensated.

16.           In view of above discussion, the complaint is allowed with the following direction to the OPs:

(a)    to pay him compensation of Rs.50,000/- (Rs. Fifty thousand only) for harassment, mental agony and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

June 03, 2015.    

                                                                     (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member