Punjab

Faridkot

CC/16/34

Amar Singh - Complainant(s)

Versus

M/S Nature Height Infra Limited - Opp.Party(s)

Sandeep Sharma

24 Jun 2016

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :       34

Date of Institution :  01.02.2016

Date of Decision :    24.06.2016

Amar Singh aged about 75 years s/o Maghar Singh  r/o # 417 Village Dhiman Wali, Tehsil Kotkapura, District Faridkot.                                  ...Complainant

Versus

1. M/s Nature Height Infra Ltd, through its Managing Director Neeraj Arora, # 9, Sunder Nagri, Hanumangarh Road, Abohar.

2. M/s Nature Height Infra Ltd through its Branch Manager Rajinder Aggarwal, Near Bus Stand, Faridkot.

3. Neeraj Arora, Managing Director, M/s Nature Height Infra Ltd, # 9, Sunder Nagri, Hanumangarh Road Abohar.

                                              ........ OPs

    

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh. Ajit Aggarwal, President,

   Smt Parampal Kaur, Member,

   Sh P Singla, Member.

    

   Present:       Sh Sandeep Sharma, 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.1,20,000/-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 launched a project at village Kheri, Dev Nala, Tehsil Multani, District Betul, Madya Pradesh representing and holding out and it was developing the project in village Khedi, Dev Nala and believing on assurance given by officials of OPs at Faridkot complainant applied to Ops for booking of plot measuring 8645 square feet and paid an amount of Rs.1,20,000/- on 31.03.2013. As per agreement dt 4.05.2013, OPs were bound to obtain all kinds of NOC, permissions and income tax clearances before the time of registration of property, but despite the fact that complainant had always ready and willing to get the sale deed executed and registered in their favour, but due to non completion of legal formalities, OPs failed to do same and also failed to deliver the possession of plot to them. It was stipulated in the agreement to sale that purchaser would receive Rs.1800/-per month, which OPs failed to give and when complainants asked to OPs to hand over the requisite permission obtained by them from Government Authorities regarding project, OPs showed inability to produce any such permission, whereas as  per latest pronouncement of Hon’ble Apex Commission, it has been held that at the time of floating such like schemes, OPs should have requisite permission and infrastructure, but till date Ops have not obtained any such permission from Government Authorities. As per agreement, OPs have not developed the site yet. Complainants visited the office of OPs at Faridkot and requested them to show requisite permission and necessary certificates, but all in vain and apprehending wrong, when complainants requested OPs to return their principal amount, they did not pay any heed to their requests. Complainant approached Ops many times with request to refund his amount with interest, but every time they kept putting off the matter on one pretext or the other. Ops kept the complainant in dark as they have not taken any permission for floating such scheme. 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.1,20,000/- with interest and has also prayed for compensation of Rs.50,000/-besides Rs.11,000/-as cost of litigation. Hence, the complaint.

   3                        The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 11.02.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

   4                                  Notice was issued to Ops and as per record, OP-1 and 3 appeared in the Forum through counsel but they did not file reply despite availing many opportunities and later on none appeared on behalf of  them either in person or through counsel, therefore, both OP-1 and 3 were proceeded against Ex-parte vide order dt 30.05.2016. Though summons issued to OP-2 stand served, but nobody appeared in the Forum either in person or through counsel on behalf of OP-2 and therefore, after long waiting till 4.00 pm, OP-2 was also proceeded against exparte on 30.05.2016.

   5                                    The complainant tendered in evidence, his affidavit Ex.C-1 and documents Ex C-2  and  Ex C-3 and then, closed his evidence.

   6                                         Ld Counsel for complainant vehementally argued that Ops launched a project at village Kheri, Dev Nala, Tehsil Multani, District Betul, Madya Pradesh representing and holding out and it was developing the project in village Kheri, Dev Nala and believing on assurance given by officials of OPs at Faridkot complainant applied to Ops for booking of plot measuring 8645 square feet and paid an amount of Rs.1,20,000/- on 31.03.2013. As per agreement dt 4.05.2013, OPs were bound to obtain all kinds of NOC, permissions and income tax clearances before the time of registration of property, but despite the fact that complainant had always ready and willing to get the sale deed executed and registered in their favour, but due to non completion of legal formalities, OPs failed to do same and also failed to deliver the possession of plot to them. It was stipulated in the agreement to sale that purchaser would receive Rs.1800/-per month as rent, which OPs failed to give and when complainants asked to OPs to hand over the requisite permission obtained by them from Government Authorities regarding the project, OPs showed inability to produce any such permission, whereas as  per latest pronouncement of Hon’ble Apex Commission, it has been held that at the time of floating such like schemes, OPs should have requisite permission and infrastructure, but till date Ops have not obtained any such permission from Government Authorities. As per agreement, OPs have not developed the site yet. Complainants visited the office of OPs at Faridkot and made many requests to make payment of his entire amount, but  all in vain. Ops have caused huge monitory loss to complainants besides causing harassment and mental tension. Counsel for complainant has prayed for accepting the complaint and also to pay compensation and litigation expenses. Complainant has stressed on documents  Ex C-1 to 3.

   7                                              We have heard the exparte arguments advanced by ld counsel for complainant and have also carefully gone through the record available on file.

    8                                             The case of the complainant is that OPs advertised that they are developing land at village Kheri, Dev Nala, Tehsil Multani, District Betul, Madya Pradesh. On their advertisement, complainant agreed to purchase the plot out of this land and for it he paid Rs.1,20,000/-to OPs on 31.03.2013 at their Faridkot office and agreement regarding it was executed between the parties on 4.05.2013 at Faridkot. As per agreement, OPs have to obtain all permissions and NOC for developing the site and after development of land they have to give possession of the same to complainant, but OPs failed to fulfil their promise. They had not obtained any permission from any Government office and did not start the development work at site. Even it came to the notice of complainant that alleged land is not owned by OPs, which amounts to deficiency in service and trade mal practice on the part of Ops. In his support he has produced copy of agreement as Ex C-2 and receipt of payment as Ex C-3. From it, it is clear that complainant paid amount to OPs for purchase of land and OPs agreed to sell land after developing the same.As the land which was agreed to be sold is situated at Madhya Pradesh and whether this Forum has jurisdiction to try and decide this complaint. Ld counsel for complainant argued that all transactions between parties were made at Faridkot. The payment regarding plot was also made to OPs at their Faridkot office and agreement was also executed between the parties at Faridkot within the territorial jurisdiction of this Forum. So, this Forum has jurisdiction to try and decide this 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 the 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. He further put reliance on the citation 1997(10 Consumer Protection Judgments 144. Titled as Kanshi Ram Vs Maruti Udyog Ltd and Ors decided by Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla wherein they held that what is cause of action. The cause of action constitutes bundle of facts which are taken with the law applicable to them gives the plaintiff the right to relief against the defendant. it goes without saying that the aforementioned circumstances that the complainant is a resident of Bilaspur and that he got the bank draft prepared at Bilaspur, confirmed the proposal of respondent no. 2 at Bilaspur and got the vehicle after the receipt of the same bank draft, are in fact the vital facts in the formation of the contract of purchase/sale of Maruti Car. Having regard to all these circumstances, we have no hesitation to hold that part of cause of action has arisen in Bilaspur and the District Forum has jurisdiction to try the complaint. They further discussed in Lucknow Development Authority Vs M K Gupta III (1993) CPJ (SC) AIR1994 Supreme Court 787. The Supreme Court has held that the provisions of the Act have to be construed in favour of consumer to achieve the purpose of enactment as it is social benefit oriented legislation. Having regard to the above observations of the Supreme Court, if it is found that the District Forum, Bilaspur in the facts and circumstances of the case has jurisdiction otherwise under Section 11 of the Consumer Protection Act, 1986 to decide the complaint, Courts should not so readily infer about the exclusion of the jurisdiction of the District Forum. If two interpretations are which go in favour of consumer, should normally be adopted by the Courts.

    9                                                As complainant has made payment to OPs on 31.03.2013 and agreement of sale was executed on 4.05.2013 i.e more than two years ago within the filing of 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, Sections 2(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                                         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 plot and not giving the possession of same after development within time amounts to deficiency in service and trade mal practice on their part. The present complaint is hereby allowed. The OPs are ordered to pay Rs.1,20,000/-to complainant, which they received from complainant as price of land alongwith interest at the rate of 9% per anum from the date of payment 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. OP-1 and 3 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 order be supplied to the parties free of costs under the rules. File be consigned to record room.

   Announced in Open Forum

   Dated : 24.06.2016

                                            Member            Member                  President

             (P Singla)          (Parampal Kaur)     (Ajit Aggarwal)