Punjab

Faridkot

CC/16/168

Tripta Rani - Complainant(s)

Versus

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

Atul Gupta

05 Aug 2016

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :       168

Date of Institution :  14.06.2016

Date of Decision :     5.08.2016

Tripta Rani aged abut 48 years w/o Sh Baljinder Kumar alias Baljinder Singh, r/o Village Bikhiwind, Tehsil Patti, District Tarn Taran.

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

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, 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.58,500/-with interest besides Rs.50,000/-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 to develop a colony at village Darban Khaas, Tehsil and District Pathankot 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 5000 square feet for earning livelihood and paid an amount of Rs.58,5000/- vide different instalments and last instalment was paid on 23.05.2013. All the instalments were paid by complainant at the Faridkot office of OPs. Complainant purchased the said property to earn livelihood and as per agreement dt 27.06.2013, 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 assured that project is an approved project from the Development  Authority. After making payments, complainant requested OPs to show the title deed, clearances, permissions received by Ops from various Departments regarding the project, but OPs showed inability to produce any such permission. Complainant also enquired about the said project from Local Authorities regarding clearance and sanctioning of Project, but all in vain. Thereafter, complainant requested OPs to return his amount, but they did not pay any heed to his 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.58,500/- 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 22.06.2016, 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 not received back. Acknowledgment must have been mis-laid in transit. 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 29.07.2016.

   5                                                         Ld Counsel for complainant tendered in exparte evidence, affidavit of complainant as Ex.C-1 and documents Ex C-2 to C-27 and then, closed the evidence on behalf of complainant.

   6                                         Ld Counsel for complainant vehementally argued that  OPs launched a project at village Darban Khaas, Tehsil and District Pathankot 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 5000 square feet for earning livelihood and paid an amount of Rs.58,500/- vide different instalments and last instalment was paid on 23.05.2013. All the instalments were paid at the Faridkot office of OPs. Complainant purchased the said property to earn livelihood and as per agreement dt 27.06.2013, 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 also assured that project is an approved project from the Development  Authority. After making payments, complainant requested OPs to show the title deed, clearances, permissions received by Ops from various Departments regarding the project, but OPs showed inability to produce any such permission. Complainant also enquired about the said project from Local Authorities regarding clearance and sanctioning of Project, but all in vain. Thereafter, complainant requested OPs to return his amount, but they did not pay any heed to his 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. 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 accepting the complaint.

   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 village Darban Khaas, Tehsil and District Pathankot 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.58,500/-to OPs vide different instalments at their Faridkot office and agreement regarding it was executed between the parties on 27.06.2013 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 on the part of Ops. In his support he has produced copy of agreement as Ex C-3, registration letter Ex C-2 and receipts of payment as Ex C-4 to 27. 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 Pathankot 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 parties at Faridkot within the territorial jurisdiction of this Forum. So, this Forum has jurisdiction to try and decide the complaint. He put reliance on citation 2005(3) Consumer Protection Judgements581 titled as Divisional Railway Manager/Commercial, Southern Railway Vs Jasbir Singh decided by Union Territory Consumer Disputes Redressal Commission, Chandigarh wherein they held that plead of lack of territorial jurisdiction was arose on the ground that train originated from Ernakulam in the State of Kerala and the destination station was New          Delhi and as such, District Forum, Chandigarh has territorial jurisdiction to adjudicate the complaint. The Hon’ble State Commission observed that so far as the booking of ticket from the website of the Indian Railways at Chandigarh is concerned, it has been admitted and once this fact is admitted then a part of cause of action arose at Chandigarh where the tickets were booked on website and the tickets were delivered at Chandigarh, u/s 11 (2) (c) of the Consumer Protection Act, 1986, which provides that complaint shall be instituted in a District Forum within the local limits of whose jurisdiction. In our considered opinion, the District Forum was right in holding that it had territorial jurisdiction to entertain and adjudicate the complaint cases and the arguments advanced by the ld counsel for the appellants to the contrary has no merit. 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. He further put reliance on the citation 1997(10 Consumer Protection Judgments 144. Titled as Kanshi Ram Vs Maruti Udyog Ltd and Ors decided by Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla wherein they held that what is cause of action. The cause of action constitutes bundle of facts which are taken with the law applicable to them gives the plaintiff the right to relief against the defendant. It goes without saying that the aforementioned circumstances that the complainant is a resident of Bilaspur and that he got the bank draft prepared at Bilaspur, confirmed the proposal of respondent no. 2 at Bilaspur and got the vehicle after the receipt of the same bank draft, are in fact the vital facts in the formation of the contract of purchase/sale of Maruti Car. Having regard to all these circumstances, we have no hesitation to hold that part of cause of action has arisen in Bilaspur and the District Forum has jurisdiction to try the complaint. They further discussed in Lucknow Development Authority Vs M K Gupta III (1993) CPJ (SC) AIR1994 Supreme Court 787. The Supreme Court has held that the provisions of the Act have to be construed in favour of consumer to achieve the purpose of enactment as it is social benefit oriented legislation. Having regard to the above observations of the Supreme Court, if it is found that the District Forum, Bilaspur in the facts and circumstances of the case has jurisdiction otherwise under Section 11 of the Consumer Protection Act, 1986 to decide the complaint, Courts should not so readily infer about the exclusion of the jurisdiction of the District Forum. If two interpretations are which go in favour of consumer, should normally be adopted by the Courts.

   9                                                   As complainant has made last payment to OPs on 23.05.2013 and agreement of sale was executed on 27.06.2013 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. It is further argued that the price of land in dispute is Rs.2,50,000/-and complainant has made payment of Rs.58,500/-and thus, complainant has not made the entire payment of land, therefore, ld counsel for complainant has relied upon 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 has 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 National Commission decided that if OPs have failed to hand over the possession in time, then, they can not demand further payment from the complainant.

   10                                                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.     

   11                                    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 received from complainant. Hence, the present complaint is hereby allowed. However, complainant has failed to produce any documentary evidence to prove that he has paid amount of Rs58,500/- to OPs as alleged by him as he has produced on record 25 receipts from Ex C-4 to C-27, which show that amount given by complainant to OPs amounts to Rs.56,250/-. Therefore, OPs are directed to refund the amount of Rs.56,250/-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 : 5.08.2016

    

                                           Member                                  President

              (P Singla)                                (Ajit Aggarwal)