Punjab

Faridkot

CC/16/113

Smt Surinder Kaur - Complainant(s)

Versus

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

Atul Gupta

17 Jun 2016

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :       113

Date of Institution :  2.05.2016

Date of Decision :    17.06.2016

1. Surinder Kaur aged about 52 years, w/o Jatinder Pal Singh r/o B-XII-199/AB, Street No. 1, New Harindra Nagar, Faridkot.

2. Harinder Singh aged about 20 years s/o Jatinder Pal Singh r/o B-XII-199/AB, Street No. 1, New Harindra Nagar, Faridkot. Now at present r/o Mahawak College, Hamilton, Ontario, Canada.

   ...Complainant

   Versus

3. M/s Nature Height Infra Ltd, having its registered office at Street No. 9, Sunder Nagri, Hanumangarh Road, Abohar, through its Managing Director Neeraj Arora.

4. M/s Nature Height Infra Ltd, having its registered office at Street No. 9, Sunder Nagri, Hanumangarh Road, Abohar, through its authorized signatory.

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

6. Komal Grover, Agent/Advisor having ID No. 23174 having mobile no. 95171-00079 c/o M/s Nature Height Infra Ltd, having its registered 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.3,28,125/-with interest besides Rs.50,000/-as compensation for harassment and mental agony alongwith litigation expenses of Rs.22,000/-.

   2                                  Briefly stated the case of complainant is that Ops launched a project at village Bringali, Tehsil Mukerian, District Hoshiarpur representing and holding that it was developing the project and believing on assurance given by OP-4/authorized agent of OPs at Faridkot complainants applied to Ops for booking of plot measuring 2500 square feet for earning livelihood and paid an amount of Rs.1,09,395/-through cheque bearing no. 350156 of SBI Bank, where complainant no. 1 is having her bank account at Faridkot. Said cheque was duly received by Ops at Faridkot and they issued receipt from their Branch Office at Faridkot. Complainants agreed to purchase the said property to earn livelihood and as per agreement dt 15.10.2013 OPs were bound to obtain all kinds of NOC, permissions and income tax clearances before the time of registration of property. To show their readiness and willingness, complainant paid two more instalments of Rs 1,09,375/- each vide cheque no.079575 of Axis Bank ltd and another cheque was issued to OPs by complainant no. 1 from her account in SBI Faridkot. All the three instalments i.e a sum of total of Rs.3,28,125/-was credited in the account of OPs. After making payment of third instalment, complainants requested OPs to show the title deed, clearances and permissions received by OPs from various Departments regarding the project, but they were surprised to know that OPs were not in possession of any of these documents. Finding something fishy, complainant no. 1 personally visited the village Bringali, Tehsil Mukerian and found that the land pertaining to Khasra numbers mentioned in agreement is not at all owned by Ops and then, complainant no. 1 enquired from local authorities regarding clearance and sanctioning of project, but in void. Thereafter, complainant visited the office of OPs at Faridkot and requested them to return the principal amount obtained by them, but all in vain. Moreover, OPs also shifted their office from Faridkot to Abohar to escape liability. 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. Complainants 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.3,28,125/- 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 4.05.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.

   4                                  As per office report, notice issued to Ops stands served, but despite service of notice, nobody appeared on behalf of them either in person or through counsel, therefore, all  OP-1 to 4 were proceeded against Ex-parte vide order dt 13.06.2016.

   5                                  Ld Counsel for complainant tendered in exparte evidence, affidavit of complainant as Ex.C-1 and documents Ex C-2 to C-8 and then, closed the evidence on behalf of complainant.

   6                             In exparte arguments, ld counsel for complainant contended that OPs launched a project at village Bringali, Tehsil Mukerian, District Hoshiarpur representing and holding that it was developing the project and believing on assurance given by OP-4/authorized agent of OPs at Faridkot complainants applied to Ops for booking of plot measuring 2500 square feet for earning livelihood and paid an amount of Rs.1,09,395/-through cheque bearing no. 350156 of SBI Bank, where complainant no. 1 is having her bank account at Faridkot. Said cheque was duly received by Ops at Faridkot and they issued receipt from their Branch Office at Faridkot. Complainants agreed to purchase the said property to earn livelihood and as per agreement dt 15.10.2013 OPs were bound to obtain all kinds of NOC, permissions and income tax clearances before the time of registration of property. It is further contended that complainants paid two more instalments of Rs 1,09,375/- each vide cheque no.079575 of Axis Bank ltd and another cheque was issued to OPs by complainant no. 1 from her account in SBI Faridkot. All the three instalments i.e a sum of total of Rs.3,28,125/-was credited in the account of OPs. After making payment of third instalment, complainants requested OPs to show the title deed, clearances and permissions received by OPs from various Departments regarding the project, but they were surprised to know that OPs were not in possession of any of these documents. Finding something wrong, complainant no. 1 personally visited the village Bringali, Tehsil Mukerian and found that the land pertaining to Khasra numbers mentioned in agreement is not at all owned by Ops and then, she enquired from local authorities regarding clearance and sanctioning of project, but in vain. Thereafter, complainant visited the office of OPs at Faridkot and requested them to return the principal amount obtained by them, but all in vain. Moreover, OPs also shifted their office from Faridkot to Abohar to escape liability. 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 they failed to do so. Complainants visited the office of OPs at Faridkot and made many requests to make payment of entire amount with interest as OPs have retained the amount of complainants for a long time, but they did not hear her 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 8. In order to prove that  this Forum has jurisdiction to decide the present complaint, ld counsel for complainants has placed reliance on citation in case law 2014 (2) Consumer Law Today titled as Ms Dilshad Gill Vs M/s EMAAR MGF Land Pvt Ltd & Ors, wherein Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U T Chandigarh has observed that Consumer Protection Act, 1986, Section 11-Territorial Jurisdiction-Flat at Chandigarh-Apart of Cause of action, accrued to the complainant at Chandigarh and as such, this Commission has the territorial jurisdiction to entertain and decide the complaint. In present case also, the payment is received by Ops from complainant at Faridkot as per Expression of Interest-cum-Agreement dated15.10.2013. It is further argued that Ops received payment at Faridkot and agreement in question is also executed between parties at Faridkot.

   7                                           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 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 also, complainant has made part payment of Rs.3,28,125/- though total price of land purchased by complainant was Rs.4,37,500/-.

   8                                   We have heard the exparte arguments addressed by ld counsel for complainant and have also carefully gone through the record available on the file.

   9                                        From the careful examination of document Ex C-2, which is Expression of Interest cum Agreement dt 15.10.2013, it is clear that Ops entered into an agreement with complainant for sale of land worth Rs4,37,500/- through easy instalments of Rs1,09,375/-payable on or before four years. Documents Ex C-3, C-4 and C-5 are the receipts issued by Ops for receiving the payment of Rs.1,09,375/-each through cheques from complainant. On the face of it, these documents prove the fact that complainant made payment of huge amount of Rs.3,28,125/-to OPs, which was duly received by them vide receipts Ex C-3 to 5. This Agreement of sale is 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. These documents Ex C-3, C-4 and C-5 give strength to the pleading of complainant that she had paid the amount of Rs.3,28,125/- through cheques to OPs. Documents Ex C-2 and C-3 to 5 are cogent evidence, authenticity of which cannot be ignored. Through Ex C-1 complainant has reiterated his pleadings and it explains the grievance of complainant.

   10                                 The main contention of complainant is that complainant paid Rs.3,28,135/-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.3,28,125/-, 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 the office of OPs 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. Moreover, payment is made on different dates at Faridkot in the office of Ops and thus, limitation of complainant for filing the present complaint can also not be denied. 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-2. All this proves that Ops have caused great harassment to complainant by retaining his large amount of Rs.3,28,125/-depriving them of the interest, which was to be accrued on it. All this has caused harassment and mental tension to complainant, which entitles them for compensation and litigation expenses.

   12                                          From the careful perusal of the record and keeping in view the citation placed by complainant titled as Ms Dilshad Gill Vs M/s EMAAR MGF Land Pvt Ltd & Ors (supra) and documents placed on file, this Forum is fully convinced with the arguments advanced by ld counsel for complainants and is of considered opinion that OPs have been deficient in providing 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.3,28,125/- received from complainants. Hence, the present complaint is hereby allowed. OPs are directed to refund the amount of Rs.3,28,125/-to complainants 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 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. Copy of order be supplied to the parties free of costs under the rules. File be consigned to record room.

   Announced in Open Forum

   Dated : 17.06.2016

                                            Member            Member                  President

             (P Singla)          (Parampal Kaur)     (Ajit Aggarwal)