Punjab

Faridkot

CC/16/133

Kusam Lata - Complainant(s)

Versus

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

Ashu Mittal

30 Aug 2016

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :        133

Date of Institution :   12.05.2016

Date of Decision :      30.08.2016

Kusam Lata w/o Naresh Kumar  r/o House No. 2, Opposite Dr.Ravinder Mittal’s Clinic, Main Bazar, Jaitu, Tehsil Jaitu, District Faridkot.                                                   

                                                                                                    ...Complainant

Versus

1. M/s Nature Height Infra Ltd.Near Bus Stand, Faridkot through its Manager. Now, at street No.9, Sunder Nagri, Abohar.

2. M/s Nature Height Infra Ltd Town Aka, Nature Farms and Real Estates Pvt Ltd. Street No.9, Sunder Nagri, Abohar, Punjab through its MD.

3. Amit Kukkar s/o Raj Kumar r/o Street No. 6, Sidhu Nagri, Abohar, Director, M/s Nature Height Infra Ltd.

                                              ........ OPs

    

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh. Ajit Aggarwal, President,

   Sh P Singla, Member.

    

   Present:       Sh Ashu Mittal, Ld Counsel for Complainant,

                       Sh Kuldeep Singh, Ld Counsel for OP-3,

                        OPs-1 & 2 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.3,37,500/-with interest besides Rs.50,000/-as compensation for harassment and mental agony alongwith litigation expenses.

   2                                  Briefly stated the case of complainant is that Ops launched a project at village Bringali, Tehsil Mukerian, District Hoshiarpur, representing and holding out and 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 1500 square feet and paid an amount of Rs.3,37,500/- vide agreement dt 5.02.2013, 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. When complainants asked to OPs to hand over the requisite permission obtained by them from Government Authorities regarding project situated at village Bringali, 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.3,37,500/- with interest and has also prayed for compensation of Rs.50,000/-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 18.05.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

   4                                 As per office record, notice issued to OP-1 and 2 through RC not received back. It is presumed that they have been served, but no one appeared on behalf of  them either in person or through counsel, therefore, both OP-1 and 2 were proceeded against Ex-parte vide order dt 24.06.2016.

   5                               OP-3 appeared in the Forum through counsel and filed reply taking preliminary objections that he has resigned from the post of Director of the Company M/s Nature Height Infra Ltd on 20.03.2013 and after that he has no link with the affairs of the Company. OP-3 is neither an executant nor witness to the agreement between the parties and he is totally ignorant of this agreement between the parties and he has been falsely dragged in litigation. He is not liable in his individual capacity for the act done by the party as before execution of agreement between the parties, he had already left the Company by sending resignation which was duly accepted by Ops. On merits, it is reiterated that there is no deficiency in service on the part of Op-3 as answering OP can not be held liable for the act done by company and he has nothing to do in this matter. All the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with special costs.                  

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

   7                                           Ld Counsel for OP-2 tendered in evidence affidavit of Amit Kukkar as Ex OP-3/1 and documents Ex OP-3/2 to 4 and then, closed the evidence on behalf of OP-2.

   8                                         Ld Counsel for complainant vehementally argued that Ops launched a project at village Bringali, Tehsil Mukerian, District Hoshiarpur,   representing  and  holding  out  and   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 1500 square feet and paid an amount of Rs.3,37,500/- on 5.02.2013. As per agreement dt 5.02.2013, 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 and when complainant 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. Complainant 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 complainant 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 5.

   9                                Ld Counsel for OP-3 argued before the Forum that he has been falsely dragged in this Forum as he has already resigned from the post of Director of company of OP-1 and 2 on 20.03.2013 and since then, he has no link with the affairs of company and his resignation has been duly accepted by them and even intimation regarding resignation of OP-3 was given to Registrar of Companies. Moreover, said agreement is not executed in the presence of OP-3 and he is totally ignorant of this fact. He has nothing to do in the present complaint as he has left the Company of OP-1 and 2. OP-3 is neither an executant nor witness to the agreement between the parties and he has been falsely dragged in litigation. It is further argued that as per law and rules, no individual Director or Member of any Company can be made liable in his individual capacity for the act done by the company.  And as Op-3 has already resigned from the post of Director of Company of Ops then, he can not be held liable for any such act done by them as he has no concern with alleged purchase or agreement between parties. It is further averred that he has been falsely dragged in litigation. He has prayed for dismissal of complaint against him. In his support, he has relied upon documents adduced by him.

   10                                                     We have heard the arguments addressed by ld counsel for complainant and OP-3 and have also carefully gone through the record available on the file.

   11                                       The case of the complainant is that OPs advertised that they are developing land at village Bringali, Tehsil Mukerian, District Hoshiarpur.  On their advertisement,  complainant  agreed to purchase the plot out of this land and for it he paid Rs.3,37,500/- to  OPs on 5.02.2013  at       their Faridkot office and agreement regarding it was executed between the parties on 5.02.2013 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 receipts of payment as Ex C-3 to 5. 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 District Hoshiarpur and whether 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. 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.

   12                                   As complainant has made last payment to OPs on 27.01.2015 and agreement of sale was executed on 5.02.2013 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. In reply to contentions of complainant, OP-3 argued before the Forum that he has been falsely dragged in this litigation as he has already resigned from the company of Ops 1 and 2 and his resignation has been duly accepted by them. Moreover, said agreement is not executed in the presence of OP-3 and he is totally ignorant of this fact. He has nothing to do in the present complaint as he has left the Company of Op-1 and 2. He has prayed for dismissal of complaint against him.

   13                                                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. However, OP-3, who was Director and employee of OP-1 has already resigned from the directorship of said Company prior to filing of present complaint and as such, he is not personally responsible for the acts of company. The act of OP-1 and 2 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.     

   14                                    From the careful perusal of the record and keeping in view the case law produced by complainant, this Forum is fully convinced with the arguments advanced by ld counsel for complainant and is of considered opinion that OP-1 and 2 have been deficient in services and there is trade mal practice on their part in not handing over the possession of plot as per their promise and also failed to return the amount of Rs.3,37,500/- received from complainant. Hence, the present complaint is hereby allowed against OP-1 and 2 and stands dismissed against OP-3. OP-1 and 2 are directed to refund the amount of Rs.3,37,500/-to complainant with interest at the rate of 12% per anum from the date of payment till realization. They 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 2 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 : 30.08.2016

                                           Member                             President

             (P Singla)                                    (Ajit Aggarwal)