Chandigarh

DF-II

CC/347/2020

Raj Dutt Singh - Complainant(s)

Versus

M/s Gupta Property Developers - Opp.Party(s)

Devinder Kumar

27 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	347/2020
Date of Institution	:	10.08.2020
Date of Decision	:	27.01.2023

 

                   

           

 

Raj Dutt Singh son of Sh.Sarju Singh, aged 43 years, H.No.33, Raipur Khurd, Chandigarh.

….Complainant

Versus

1.  Vikrant Sharma, Manager of M/s Gupta Property Developers, Ambala Chandigarh Road, Opposite Sethi Dhaba, Tehsil: Derabassi, District SAS Nagar, Mohali.

2. Dayal Singh son Bachna Ram, r/o House Gollu Majra, Tehsil: Derabassi, District: SAS Nagar, Mohali.

…. Opposite Parties

 

BEFORE:
		SHRI AMRINDER SINGH SIDHU,	PRESIDENT
		SMT.PRITI MALHOTRA,	MEMBER
		SHRI B.M.SHARMA	MEMBER
PRESENT:-
	Sh.Devinder Kumar, Counsel of complainant Ms.Astha Sharma, Adv. Proxy for Sh.V.K.Tripathi, Counsel of OPs.

 

   

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

1.     The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019, as amended up-to-date alleging therein that being allured by the publications and assurances, he entered an agreement to sell dated 23.07.2018 (Annexure C-1) to purchase a plot No.40, in the housing project known as “Shree Balaji Vihar-2”,  Bankarpur, Derabassi for total sale consideration of Rs.3,95,000/-, by paying Rs.95,000/- as token money  (Rs.40000/- paid through cheque No.007240 and Rs.55000/- in cash). Thereafter, the OPs informed the complainant that the loan was to be sanctioned in the name of the complainant’s wife and executed another agreement to sell dated 17.09.2018 (Annexure C-3) in the name of Sh.Rajinder Pal.  Earlier agreement to sell dated 23.07.2018 was executed in the name of Sh.Dayal Singh. Thereafter, the complainant enquired about the loan and also paid Rs.4000/- as file charges but OP No.1 lingered on the matter on one pretext or the other. Later on, he came to know that the Bank had refused to provide the loan.  Since, the OP No.1 has failed to provide the loan, therefore, he requested the OPs to refund the amount.  According to oral settlement, OP No.1 issued a cheque dated 11.07.2020 for Rs.40000/- and cancelled both the agreements and assured to return the remaining amount of Rs.55000/- in cash within a week.  However, on presentation the aforesaid cheque dishonored with the memo having “code No.55” and on enquiry from bank, it was informed that due to account block cheque has been dishonored.  It has been averred that the OPs have failed to refund the deposited amount of Rs.95000/- despite his requests.   Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint seeking directions to the OPs to refund Rs.95000/- along with interest, compensation for mental agony and physical harassment as well as litigation expenses.
2.     In his written version, OP No.1 has stated that the complaint filed by the complainant is false, frivolous, misconceived, groundless and abuse of the process of law and the same has been filed to blackmail him. It is stated that OP No.1 never employed with M/s Gupta Property Developers. It is stated that OP No.1 taken a friendly loan of Rs.40,000/- from the complainant for one month and for security, OP No.1 had issued one account payee cheque for Rs.40,000/-. Thereafter, OP No.1 returned the said amount and requested the complainant to return the said security cheque but he had stated that cheque was misplaced somewhere.  It has been denied that any agreement was executed with the complainant on his behalf or on behalf of M/s Gupta Property Developers. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, the OP prayed for dismissal of the complaint.
3.     In his separate written version, OP No.2 has stated that the complaint filed by the complainant is false, frivolous, misconceived, groundless and abuse of the process of law and the same has been filed to blackmail him. It is stated that OP No.2 never entered into any agreement to sell with the complainant and so the question of committing deficiency in service, adopting unfair trade practice does not arise. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on his part, the OP prayed for dismissal of the complaint.
4.     The parties filed their respective affidavits and documents in support of their case.
5.     We have heard the Counsel for the contesting parties and have gone through the documents on record.
6.     The main objection taken by OP No.3 is that the complainant is not consumer of OPs and hence the complaint is not maintainable in this Commission.

 

7.     In order to decide the issue in Controversy that as to whether complainant is a consumer or not? the following observations are relevant. 

 

8.     The complainant alleged that the OPs through various publications, publicity and assurances floated a proposed scheme for the sale of plot in the Project known as "Shree Balaji Vihar-2 (Project) at Derabassi, Dist. SAS Nagar, Mohali.  The complainant, being allured by the OPs, agreed to purchase a plot and believing the OPs, he entered into an agreement to sell dated 23.07.2018 executed between the complainant and the OPs and paid a sum of Rs.95,000/- as token money. The total consideration amount of the plot No.40, “Shree Balaji Vihar-2”,  Bankarpur, Derabassi was Rs.3,95,000/-. The complainant paid  sum of Rs.40,000/- though cheque No.007240 in the name of Vikram Sharma (OP No.1) and Rs.55,000/- received by cash by him from the complainant. In order to prove the payment of Rs.40,000/-, the complainant has placed on record a copy of the passbook of the bank statement as Annexure C-2. At the time of booking of the plot, the OPs assured the complainant to help him to provide the loan facility for the purpose of the plot as they have link with the bank and thus, the complainant handed over the required documents as demanded by OP No.1. OP No.1 prepared first agreement dated 23.07.2018 in the name of Sh.Dayal Singh, OP No.1  and the complainant and second agreement dated 17.09.2018 in the name of one Sh.Rajinder Pal.
9.     The OPs failed to get the requirement loan amount sanctioned from the bank and thus, the complainant requested to refund the amount from the OPs. According to verbal settlement with OP No.1, OP No.1 issued cheque No.015473 dated 11.07.2020, amounting to Rs.40,000/- payable at Axis Bank, Derabassi in favour of the complainant and written “cancelled on both the agreements. OP No.1 also assured to pay the remaining amount of Rs.55,000/- in cash to the complainant within a week.
10.     The complainant has duly proved the payment of Rs.40,000/- to OP No.1 by placing on record a copy of the statement of his bank saving accounts as Annexure C-2.
11.     Even otherwise, OP No.1 admitted the payment of Rs.40,000/- from the complainant but as a friendly loan amount. He also admitted that he had issued cheque No.015473 dated 11.07.2020, amounting to Rs.40,000/- payable at Axis Bank, Derabassi in favour of the complainant but OP No.1 admitted it as a security cheque.
12.     However, the fact remained on record that the complainant paid Rs.40,000/- to OP No.1 through cheque NO.007240 in the name of Vikram Sharma i.e. OP No.1 and proved the same by placing on record the copy of statement of his bank as Annexure C-2, which shows deduction of amount of Rs.40,000/- on 26.07.2018. Further, the complainant proved that he entered into an agreement to sell dated 23.07.2018 by placing on record Annexure C-1 which was later substituted by another agreement to sell dated 17.09.2018 (Annexure C-3) in the name of Sh.Rajinder Pal on the pretext of getting the loan sanctioned in the name of wife of the complainant as loan amount could not be sanctioned in the name of the complainant. Later on 11.07.2020, OP No.1 issued a cheque No.015473 amounting to Rs.40000/- and cancelled both the agreements to sell dated 23.07.2018 and 17.09.2018 respectively on the assurance of refund the amount of the complainant to him within a week.
13.     So taking into consideration of the fact the complainant paid Rs.40,000/- to OP No.1 vide cheque No.007240 and placed on record a copy of his bank statement showing deduction of amount of Rs.40,000/- from his account on 16.07.2018 establish the relation of consumer and service provider as OP No.1 issued cheque No.015473 dated 11.07.2020, amounting to Rs.40,000/-. In the cancelled agreement, the contents of sale of plot by OP No.2 to the complainant are duly placed on record by placing it as Annexure C-3.  However, OP No.1 also signed in the column of witness to that agreement to sell. Further OP No.1 owns responsibility by issuing the cheque of same amount, which was received by him vide cheque No.007240 in pursuant to the agreement to sell dated 23.07.2019. Later on No.1 concocted a story of taking a friendly loan and issuing a security cheque to the complainant. The datewise event of facts proves the pleadings of the complainant. 
14.     However, the complainant is  able to prove only payment of Rs.40,000/- to the OPs but could not prove payment of Rs.55,000/- which he alleged to be paid in cash. Similarly, OP No.1 has alleged that he returned Rs.40,000/- to the complainant in cash but he also failed to prove it on file.  Hence, OPs are held of indulging in unfair trade practice as well as deficient in rendering services to the complainant.

 

15.     In view of the above discussion, the present complaint deserves to be partly allowed and the same is accordingly partly allowed. The opposite parties are directed to :-

i)      refund Rs.40,000/- to the complainant along with interest @ 9% p.a. from the date of its receipt till its actual realization.

ii)    pay Rs.7,000/- as compensation to the complainant on account of mental tension and harassment.

iii)   pay Rs.7,000/- as litigation expenses.

16.      This order be complied with by the OPs jointly and severally, within 60 days from the date of receipt of its certified copy, failing which the complainants shall be at liberty to get the order enforced through the indulgence of this Commission.
17.     The pending application(s) if any, stands disposed of accordingly.
18.     Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

	Sd/-	Sd/-	Sd/-
Announced	(B.M.SHARMA)	[AMRINDER SINGH SIDHU]	(PRITI MALHOTRA)
27/01/2023	MEMBER	PRESIDENT	MEMBER