Punjab

Faridkot

CC/16/163

Rajinder singh - Complainant(s)

Versus

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

Ashu Mittal

17 Aug 2016

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :       163

Date of Institution :  13.06.2016

Date of Decision :     17.08.2016

Rajinder Singh aged about 50 years 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 at street No. 8, 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.

3  Gourav Chhabra  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, 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.9,81,558/-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 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 no. 135  measuring 1262 square feet and paid an amount of Rs.7,77,780/-till 26.10.2013 and remaining balance was paid in the year 2015. Complainant agreed to purchase the said property to for residential purpose and as per agreement dt 26.10.2013 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.135 to complainant but after enquiry it was found that OPs have not obtained requisite permission for developing the land 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.  OPs also promised to deliver 50,000 bricks to complainant at the time of construction, but as per agreement, OPs have not developed the site yet. Complainant 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.9,81,558/- 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 17.06.2016, 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 to 3 through registered cover. Acknowledgment received back and thus it is presumed that OPs have been duly served, but despite service of notice, nobody appeared on behalf of them either in person or through counsel, therefore, all OP-1 to  3 were proceeded against Ex-parte vide order dt 25.07.2016.                                        

 5                                      The complainant tendered in evidence, his affidavit Ex.C-1 and documents Ex C-2 to C-7 and then, closed his evidence.

6                                          As there is no rebuttal, therefore, ld counsel for complainant advanced arguments.

7                                    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 1262 square feet for resident6ial purpose and paid an amount of Rs9,81,558/- in cash, which was duly received by OPs on different times vide consolidated receipt/certificate dt 10.04.2015. It is contended that as per agreement dt 26.10.2013, 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.135 to complainant but after enquiry it was found that OPs have not obtained requisite permission from concerned authorities for developing the site 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 and 7.

8                               As per Ex C-3, complainant made last payment to OPs vide receipt dated 10.04.2015 and agreement of sale was executed on 26.10.2013 i.e more than two years ago from filing the present complaint. Therefore, 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 propostion 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.9,81,558/- and total price of land purchased by complainant was Rs.9,81,558/-.

9                          We have heard the arguments addressed by ld counsel for complainant and have also carefully gone through the record available on the file. From the careful examination of document Ex C-3, which is a copy of certificate/receipt dt 10.04.2015given by Ops, it is clear that Ops received amount of Rs.9,81,558/-from complainant in cash. On the face of it, this document proves that complainant made payment of huge amount of Rs.9,81,558/-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 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 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. Ex C-4 to C-7 are photographs produced by complainant, which show that there is no development at the site in question.

10                                 The main contention of complainants is that complainant paid huge amount of  Rs.9,81,558/-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.9,81,558/-, 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.

11                                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-3, which is receipt/certificate of 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.9,81,558/-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.

12                        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.9,81,558/- received from complainant. Hence, the present complaint is hereby allowed. The OP-1 to 3 are directed to refund the amount of Rs.9,81,558/-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 : 17.08.2016

                                                  Member                              President

                    (P Singla)                         (Ajit Aggarwal)