DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

Complaint No. :       192

Date of Institution :  20.11.2018

Date of Decision :    16.10.2019

Gurmeet Kaur aged about 72 years W/o Sh. Gobinder Singh S/o Santa Singh R/o VPO Saidpur, District Kapurthala, through her authorized Signatory Smt. Kuljinder Kaur W/o Sukhwinder Singh R/o H.No.1099, Talwandi Road, Near B.D.P.O Office Opposite Dashmesh Public School Faridkot, tehsil and District Faridkot Mobile No.97810-50323

...Complainant

Versus

M/s Nature Height Infra Ltd, having its Registered Office at  Street No. 9, Sunder Nagri, Hanumangarh Road, Abohar, through its Managing Director Neeraj Arora.

                                                           ........ OP

            Complaint under Section 12 of the Consumer Protection Act, 1986.

                                                           *********

Quorum:     Sh. Ajit Aggarwal, President,

Smt. Param Pal Kaur, Member.

Present:       Sh. Atul Gupta, 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. 5,83,335/- with interest besides Rs.1,00,000/-as compensation for harassment and mental agony alongwith litigation expenses.

2                Briefly stated the case of complainant is that OPs launched a project to develop a colony at Kotkapura-Faridkot National Highway, Sandhwan, Kotkapura, District Faridkot representing and holding that it was developing the project and believing on assurance given by officials of OPs at Faridkot complainant applied to Ops for booking of plot measuring 1275 square feet for earning livelihood and paid an amount of Rs.5,83,335/- in cash. Payment was paid by complainant at the Faridkot office of OPs. Complainant purchased the said property to earn livelihood and as per agreement dt 12.12.2013, 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. OPs had also assured that project is an approved project from the concerned Development Authority. After making payments, complainant requested OPs to show the title deed, clearances, permissions received by Ops from various Departments regarding the project, but OPs showed inability to produce any such permission. Complainant also enquired about the said project from Local Authorities regarding clearance and sanctioning of Project, but all in vain. Thereafter, complainant requested OPs to return his amount, but they did not pay any heed to his 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.5,83,335/- with interest and has also prayed for compensation of Rs.1,00,000/- 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 27.11.2018, complaint was admitted and notice was ordered to be issued to the opposite parties.

4                    As per office report, notice issued to OP  through registered cover received back with report of Postal Authorities as “addressee left’. Thereafter, notice was served through publication and it is presumed that OP have sufficient knowledge of notice issued against them. Despite making several calls to OP, no body appeared in the Forum on behalf of OP on date fixed either in person or through counsel, therefore, after waiting for a long period till 4.00 O’ clock, OP was proceeded against exparte vide order dt 24.09.2019.                             

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

6               Ld Counsel for complainant vehementally argued that  OPs launched a project at Kotkapura-Faridkot National Highway, Sandhwan, Kotkapura, District Faridkot representing and holding that it was developing the project and believing on assurance given by officials of OPs at Faridkot complainant applied to Ops for booking of plot measuring 1275 square feet for earning livelihood and paid an amount of Rs.5,83,335/- in cash and payment was made at the Faridkot office of OPs. Complainant purchased the said property to earn livelihood and as per agreement dt 19.03.2013, 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. OPs also assured that project is an approved project from the Development Authority. After making payment, complainant requested OPs to show the title deed, clearances, permissions received by Ops from various Departments regarding the project, but OPs showed inability to produce any such permission. Complainant also enquired about the said project from Local Authorities regarding clearance and sanctioning of Project, but all in vain. Thereafter, complainant requested OPs to return his amount, but they did not pay any heed to his 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. 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 complaint.

7             We have heard the 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 OPs launched a project at Kotkapura-Faridkot National Highway, Sandhwan, Kotkapura, District Faridkot holding that they were developing the project and at the instance of OPs, complainant agreed to purchase the plot out of this land and for it he paid Rs.5,83,335/-to OPs in cash at their Faridkot office and agreement regarding it was executed between the parties on 19.03.2013 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. 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 Faridkot and this Forum has jurisdiction to try and 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 the parties at Faridkot within the territorial jurisdiction of this Forum. So, this Forum has jurisdiction to try and decide this complaint.

9                   As complainant has made last payment to OPs on 19.03.2013 and agreement of sale was executed on 19.03.2013 i.e more than two years ago from 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. It is further argued that the price of land in dispute is Rs.9,81,558/-and complainant has made payment of Rs.5,83,335/-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.

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 in 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. Hence, the present complaint is hereby allowed against OPs. Complainant has produced cogent documentary evidence to prove that he has paid amount of Rs.5,83,335/- to OPs as alleged by him as he has produced on record copy of agreement Ex C-2, which show that amount given by complainant to OPs amounts to Rs. 5,83,335/-. Therefore, OP is directed to refund the amount of Rs. 5,83,335/- to complainant with interest at the rate of 12% per anum from the date of payment till realization. OP  is 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 is 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 : 16.10.2019

                                                Member                                                 President

           (Param Pal Kaur)                               (Ajit Aggarwal)