Punjab

Faridkot

CC/16/156

Kuldeep Singh - Complainant(s)

Versus

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

Atul Gupta

29 Jul 2016

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :       156

Date of Institution :  1.06.2016

Date of Decision :     29.07.2016

Kuldeep Singh aged about 40 years s/o Sh Ajmer Singh r/o village Wander, Tehsil Bagha Purana, District Moga.                                                                                 

...Complainant

Versus

1. M/s Nature Height Infra Ltd, having its registered office at Street No. 9, Sunder Nagri, Hanumangarh Road, Abohar, Punjab through its M.D.Neeraj Arora.

2. Gaurav Chhabra c/o M/s Nature Height Infra Ltd, Head office at Street No. 9, Sunder Nagri, Hanumangarh Road, Abohar.

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

   All now at present c/o Head Office at Street No. 9, Sunder Nagri, Hanumangarh Road, Abohar,

                                              ........ OPs

    

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh. Ajit Aggarwal, President,

   Sh P Singla, Member.

    

   Present:       Sh Atul Gupta, Adv. 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.9,91,669/-with interest besides Rs.3,00,000/-as compensation for harassment and mental agony alongwith litigation expenses of Rs.25,000/-.

   2                                  Briefly stated the case of complainant is that Ops launched a project at Kotkapura Faridkot National Highway, Sandhwan, Kotkapura representing and holding out 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 their livelihood and paid an amount of Rs.9,91,669/-to OPs. Complainant paid this amount in cash on different dates vide instalments  through the official of Ops namely Gurbinder Singh and a consolidated receipt was issued by OPs at their Branch Office at Faridkot. As per agreement dt 22.05.2013, 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. OPs had also agreed to install the sewerage, water pipes, construct roads of cement and make boundary wall and get the colony approved from PUDA. Ops had allotted the plot no. 131 to complainant but after enquiry it was found that plot no.131 had already been sold to someone else and when complainants asked to OPs to hand over the requisite permission obtained by them from Government Authorities regarding project situated at village Sandhwan, 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.9,91,669/- with interest and has also prayed for compensation of Rs.3,00,000/- 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 6.06.2016, 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. It is presumed that same have been served to Ops. 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 15.07.2016.

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

   6                                                          Ld Counsel for complainant vehementally argued that Ops launched a project at Kotkapura Faridkot National Highway, Sandhwan, Kotkapura representing and holding out 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 their livelihood and paid an amount of Rs.9,91,669/-to OPs. Complainant paid this amount in cash vide instalments  through the official of Ops namely Gurbinder Singh and a consolidated receipt was issued by OPs at their Branch Office at Faridkot. It is contended that as per agreement dt 22.05.2013, 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. OPs had also agreed to install the sewerage, water pipes, construct roads of cement and make boundary wall and get the colony approved from PUDA. Ops had allotted the plot no. 131 to complainant but after enquiry it was found that plot no.131 had already been sold to someone else and when complainants asked to OPs to hand over the requisite permission obtained by them from Government Authorities regarding project situated at village Sandhwan, 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. 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 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 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.9,91,669/-to OPs vide different instalments at their Faridkot office and agreement regarding it was executed between the parties on 22.05.2013 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 consolidated receipt 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 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 and land in dispute is also situated within the territorial jurisdiction of this Forum. So, this Forum has jurisdiction to try and decide this complaint.

   9                                                       From the careful perusal of the agreement, it is revealed that total price of the plot in dispute was Rs.9,91,669/- and the complainant paid full amount towards the sale consideration of the plot, but OPs have not fulfilled their promise. As OPs themselves did not start the development work at site and did not obtain necessary permission from the concerned Departments and are in default and have not fulfilled their promise of agreement and this amounts to deficiency in service and trade mal practice on their part.

   10                                                       As complainant has made last payment to OPs on 16.04.2014 vide receipt Ex C-3 and agreement of sale was executed on 22.05.2013 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.

   11                                                           From the careful examination of document Ex C-2 and 3, it is clearly revealed  that Ops received amount of Rs.9,91,669/-from complainant in cash. On the face of it, this document proves that complainant made payment of huge amount of Rs.9,91,669/-to OPs, which was duly received by them. Ex C-2 is Agreement of sale executed in favour of complainant, which clears the point that in lieu of receiving payment of Rs.9,91,669/-from complainant, Ops entered into an agreement with complainant and both the complainant party as well as Ops are bound by the terms and conditions of same. This document gives strength to the pleading of complainant that he paid the huge amount of Rs.9,91,669/- to Ops. Documents Ex C-2 and C-3 are cogent evidence, authenticity of which cannot be ignored. Through Ex C-1 complainant has reiterated his pleadings and it explains the grievance of complainant.

   12                                                          The main contention of complainant is that complainant paid huge amount of Rs.9,91,669/-to Ops, but in turn Ops neither paid any interest to complainant nor gave possession of any plot as per their earlier promise, thereby depriving them of the interest on this amount, which is a trade mal practice on the part of Ops and amounts to clear cut deficiency in service. It is observed that agreement between complainant and Ops is executed in their office at Faridkot and payment is also made at Faridkot, which falls within the territorial jurisdiction of this Forum and therefore, this Forum is fully competent to settle the dispute arisen under its territorial jurisdiction. We fully agree with the arguments advanced by complainant counsel.

   13                                                            All these documents prove that Ops have been deficient in services and they did not come up to fulfil the terms of deed, which is evident from Ex C-2. All this proves that Ops have caused great harassment to complainant by retaining his large amount of Rs.9,91,669/-depriving him of the interest, which was to be accrued on it. All this has caused harassment and mental tension to complainant, which entitles him for compensation and litigation expenses.

   14                                                    From the careful perusal of the record and in view of documents placed on file, this Forum is fully convinced with the arguments advanced by ld counsel for complainant and is of considered opinion that OPs have been deficient in services and there is trade mal practice on the part of OPs in not handing over the possession of plot as per their promise and also failed to return the amount of Rs.9,91,669/- received from complainant. Hence, the present complaint is hereby allowed. The OPs are directed to refund the amount of Rs.9,91,669/-to complainant with interest at the rate of 12% per anum from the date of payment till 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. OPs 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 : 29.07.2016                          

                                            Member                          President

             (P Singla)                       (Ajit Aggarwal)