Punjab

Faridkot

CC/16/189

Nisha Preet - Complainant(s)

Versus

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

Ashu Mittal

20 Sep 2016

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :       189

Date of Institution :  8.07.2016

Date of Decision :    20.09.2016

Nisha Preet aged about 22 years d/o Sh Rajinder Singh s/o Sh Teja Singh r/o New Baba Farid Hospital, Muktsar Road, Red Cross Market, Kotkapura District Faridkot.                                                                                 

...Complainant

Versus

1. M/s Nature Height Infra Ltd, Near Bus Stand, Faridkot through its Manager, now, r/o Street No. 9, Sunder Nagri, Abohar, Punjab.

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 M.D.

                                              ........ OPs

    

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh. Ajit Aggarwal, President,

   Sh P Singla, Member.

    

   Present:       Sh Ashu Mittal, 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.3,88,890/-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 at village 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 no.134 measuring 1262 square feet for earning livelihood and paid an amount of Rs.3,88,890/-in cash on different dates through instalments. Amount was paid to Ops in cash at Faridkot. Complainant agreed to purchase the said property to earn livelihood. After agreement dt 23.10.2013, complainant was to make payment of Rs.9,81,558/- through instalments and he paid Rs.3,88,890/- till 23.10.2013 and at the time of making payments, Ops assured complainant that construction work would be completed within few months, but to the surprise of complainant, OPs stopped work at site and even on repeated requests of complainant, OPs did not start the work. Complainant came to know that Ops have not taken requisite permissions from concerned development authorities, which is a trade mal practice on the part of OPs. In December, 2015, complainant visited OP-1 and requested him to refund the entire amount paid by complainant to them, but OP-1 refused to pay any heed to his genuine request. Later on, complainant came to know that there is some dispute regarding land in question and in future there are no chances of starting any construction work at that place and even requisite permission from concerned authorities has also not been sought by OPs. 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.3,88,890/- 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 14.07.2016, 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 2 through registered cover. Acknowledgment received back and thus it is presumed that Op-1 and 2 have been duly served, but despite service of notice, nobody appeared on behalf of them either in person or through counsel, therefore, OP-1 & 2 were proceeded against Ex-parte vide order dt 6.09.2016.                                        

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

   6                                          We have heard the exparte arguments addressed by ld counsel for complainant.  

   7                                    As there is no rebuttal, therefore, Ld counsel for complainant vehementally contended that Ops launched a project at  village 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 1262 square feet for earning their livelihood and paid an amount of Rs.3,88,890/- in cash, which was duly received by OPs on different times vide Agreement of Sale Ex C-2. After agreement dt 23.10.2013, complainant was to make payment of Rs.9,81,558/- through instalments and he paid Rs.3,88,890/- till 23.10.2013 and at the time of making payments, Ops assured complainant that construction work would be completed within few months, but to the surprise of complainant, OPs stopped work at site and even on repeated requests of complainant, OPs did not start the work. Complainant came to know that Ops have not taken requisite permissions from concerned development authorities, which is a trade mal practice on the part of OPs. In December, 2015, complainant visited OP-1 and requested him to refund the entire amount paid by complainant to them, but OP-1 refused to pay any heed to his genuine request. Later on, complainant came to know that there is some dispute regarding land in question and in future there are no chances of starting any construction work at that place and even requisite permission from concerned authorities has also not been sought by OPs, which amounts to deficiency in service and trade mal practice on the part of OPs. 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 and 6.

   8                                As the agreement of sale  regarding plot in dispute is dated 23.10.2013 and the complainant made payment on the same date. In order to prove his case on the point of limitation, ld   counsel for complainant has placed reliance on judgment passed by Hon’ble National Commission New Delhi in case law 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 that Consumer Protection Act, 1986, Sec 2(1) (g), 2 (1) (o) and 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 24A- 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 begin to run- In that case the complaint has to be 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 Consurction-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 also, complainant has made payment of Rs.3,88,890/- and total price of land purchased by complainant was Rs.9,81,558/-.

   9                                    In the absence of any rebuttal, we have heard the exparte arguments addressed by ld counsel for complainant and have also carefully gone through the record available on the file.

   10                                              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.3,88,890/-from complainant in cash. On the face of it, this document proves that complainant made payment of huge amount 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 this amount 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 pleadings of complainant that he paid this amount to Ops. Documents Ex C-3 to 6 are 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.

   11                                   The main contention of complainant is that complainant paid Rs.3,88,890/-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 her of the interest on principal 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.

   12                                    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  to 6 and which are Agreement of sale and receipt 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.3,88,890/-depriving her 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.

   13                             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.3,88,890/- received from complainant. Hence, the present complaint is hereby allowed. The OPs are directed to refund the amount of Rs.3,88,890/-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 : 20.09.2016

                                                     Member                              President

                       (P Singla)                         (Ajit Aggarwal)