Punjab

Faridkot

CC/16/173

Nancy Nayyer - Complainant(s)

Versus

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

Atul Gupta

30 Aug 2016

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :       173

Date of Institution :  21.06.2016

Date of Decision :    30.08.2016

Nancy Nayer aged about 43 years w/o Sh Rajinder Kumar r/o Street No. 5, Aman Nagar, Moga Road, Kotkapura, Tehsil Kotkapura and 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 Managing Director Neeraj Arora.

2. Amit Kukkar, s/o Raj Kumar street no. 6, Sidhu Nagri, Abohar, Director M/s Nature Height Infra Ltd.

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,

                        Sh Kuldeep Singh Adv, Ld Counsel for OP-2,

   OPs-1 and 3 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.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 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 1122 square feet for earning livelihood and paid an amount of Rs.5,83,335/-in cash on different dates through instalments. Amount was paid to Ops in cash at Faridkot through their branch office and OPs issued consolidated receipt through their Branch Office at Faridkot. Complainant agreed to purchase the said property to earn livelihood and as per agreement dt 25.06.2013 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.108 to complainant but after enquiry it was found that plot no.108 had already been sold to someone else and when complainant asked 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.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 27.06.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

   4                                          As per office report, notice was issued to OP-1 and 3 through registered cover. Acknowledgment received back and thus it is presumed that Op-1 and 3 have been duly served, but despite service of notice, nobody appeared on behalf of them either in person or through counsel, therefore, OP-1 & 3 were proceeded against Ex-parte vide order dt 8.08.2016.                                        

    5                                        OP-2 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 has no link with the affairs of the Company. OP-2 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-2 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 3 and then, closed his evidence.

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

   8                                          We have heard the arguments addressed by ld counsel for complainant as well as Counsel for OP-2.  

   9                                    Ld counsel for complainant vehementally contended that Ops launched a project at Kotkapura Faridkot National Highway, Sandhwan, Kotkapura representing that it was developing the project and believing on assurance given by officials of OPs, complainant applied for booking of plot measuring 1122 square feet for earning their livelihood and paid an amount of Rs.5,83,335/- in cash, which was duly received by OPs on different times vide consolidated receipt. It is contended that as per agreement dt 25.06.2013, OPs were bound to obtain all kinds of NOC, permissions and income tax clearances before the time of registration of property, but Ops did not do so and despite being fully aware of the fact that complainants are ready to get the sale deed registered in their favour, OPs did not obtain requisite permission and NOC from PUDA and also but due to non completion of legal formalities, OPs 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. It is further contended that Ops had allotted the plot no.108 to complainant but after enquiry it was found that said plot no.108 had been sold to someone else by OPs and when complainant asked OPs to hand over the requisite permission obtained by them from Government Authorities regarding project situated at village Sandhwan, but 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 3.

   10                              As complainant has made last payment to OPs on 25.06.2013 and agreement of sale was executed on 25.06.2013 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. Ld counsel for complainant also produced 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 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 Nation Commission held that if OPs have failed to hand over the possession at time, then they can not demand further payment from complainant. In the present case, complainant has made payment of Rs.5,83,335/-  and total price of land purchased by complainant is Rs.8,72,669/-.

   11                                   Ld Counsel for OP-2 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 Ops 1 and 3 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-2 was given to Registrar of Companies. Moreover, said agreement is not executed in the presence of OP-2 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 3. Op-2 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-2 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 Ex Op-2/1 to 4 produced by him.

   12                                           We have heard the arguments addressed by ld counsel for complainant and OP-2 and have also carefully gone through the record available on the file.

   13                                              From the careful examination of document Ex C-2, which is a copy of Agreement of Sale, it is clear that Ops received amount of Rs.5,83,335/-from complainant in cash. On the face of it, this document proves that complainant made payment of huge amount of Rs.5,83,335/-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 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 this amount to Ops. Document Ex C-2 is the cogent evidence, authenticity of which cannot be ignored. Through Ex C-1 complainant has reiterated his pleadings and it explains the grievance of complainant. In reply OP-2 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 3 and his resignation has been duly accepted by them. Moreover, said agreement is not executed in the presence of OP-2 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 3. He has prayed for dismissal of complaint against him.

   14                                   The main contention of complainants is that complainant paid Rs.5,83,335/-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 principal amount of Rs.5,83,335/-, 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.

   15                                    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, which is receipt/Agreement of sale issued by Ops in lieu of payment received from complainant. All this proves that Ops have caused great harassment to complainant by retaining his large amount of Rs.5,83,335/-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. However, OP-2, 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.

   16                             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 OP-1 and 3 have been deficient in services and there is trade mal practice on the part of OP-1 and 3 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. The OP-1 and 3 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. 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. Complaint against OP-2 stands dismissed. 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)