Punjab

Faridkot

CC/16/121

Manjit Singh - Complainant(s)

Versus

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

Atul Gupta

13 Jul 2016

ORDER

               DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :       121

Date of Institution :  2.05.2016

Date of Decision :    13.07.2016

Manjit Singh aged about 51 years s/o Sh Gurcharan Singh r/o village Ukand Wala, P.O. Seda Singh Wala, Tehsil Jaitu, District Faridkot.                                                                                 

...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 Director for M/s Nature Height Infra Ltd, having its registered 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, now at present all OPs 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,

   Smt Parampal Kaur, Member,

   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.5,83,335/-with interest besides Rs.2,00,000/-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 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 1275 square feet and paid an amount of Rs.5,83,335/-to OPs on different dates at their Faridkot office and OPs duly received the same through their agent namely Iqbal Singh having ID No. 4194 against receipts dt 21.12.2011, 22.05.2012 in December 2012. Total price of property purchased was 9,91,669/- and complainant paid Rs.5,83,335/-, but as per their promise, OPs did not start the development work. Complainant purchased the said property for earning his livelihood and 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. 130 to complainant but after enquiry it was found that plot no.130 had 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.5,83,335/- with interest and has also prayed for compensation of Rs.2,00,000/- 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 11.05.2016, 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 17.06.2016.

   5                                                  The complainant tendered in evidence, his affidavit Ex.C-1 and documents Ex C-2 to  Ex C-5 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 it to be a development project and believing on assurance given by officials of OPs, complainant applied for booking of plot measuring 1275 square feet and paid an amount of Rs.5,83,335/-to OPs on different dates at their Faridkot office and OPs duly received the same through their agent namely Iqbal Singh  having ID No. 4194 against receipts dt 21.12.2011, 22.05.2012 in December 2012. Total price of property purchased was 9,91,669/- and complainant paid Rs.5,83,335/-, but as per their promise, OPs did not start the development work. Complainant purchased the said property for earning his livelihood and 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. 130 to complainant but after enquiry it was found that plot no.130 had 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 made many requests to make payment of his entire amount, but they did not hear his 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 5.

   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, Kotkapura 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 on different dates 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 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 Sandhwan 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                                       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 only Rs.5,83,335/-towards the sale consideration of the plot and did not deposit the remaining with OPs. On it, ld counsel for complainant argued that 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. So, they can not demand the remaining amount for the plot in dispute. In his support he has placed reliance on citation 2015(3) Consumer Law Today, 48 titled as EMAAR MGF Land Ltd and anr. Vs Dillshad Gill, whereas Our Hon’ble National Commission, New Delhi observed “ Consumer Protection Act, 1986, Section 2 (i) 9 (g) Housing construction-Delay in possession by appellant/Builder-Complainant/respondent defaulted in payment-Held-Appellants themselves have violated the material conditions with regarding 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.

   10                                   As complainant has made last payment to OPs in December 2012 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 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.     

   12                                    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 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.5,83,335/- received from complainant. Hence, the present complaint is hereby allowed. OPs are 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. 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 : 13.07.2016

                                            Member             Member            President

             (P Singla)        (P Dhillon)       (Ajit Aggarwal)