BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL COMMISSION, ROPAR
Consumer Complaint No. 90 of 23.07.2019
Date of decision : 07.03.2022
Gurpreet Kaur aged about 54 years wife of Bhupinder Singh, resident of House No.1360, Type 2, Nuhon Colony, GGSSTP, Village Ghanauli, Tehsil & District Rupnagar
......Complainant
Versus
M/s Nature Heights Infra Limited, Head Office, 9, Sunder Nagri, Opposite Children Park, Hanumangarh Road, Abohar, District Fazilka (Pb.) through Chief Manager Director Neeraj Thatai alias Neeraj Arora.
M/s Nature Heights Infra Limited, registered office J32, 1st floor, Najafgarh Road, Ramesh Nagar, New Delhi through Director Gaurav Chhabra
Jasvir Singh Branch Manager, M/s Nature Heights Infra Limited, Nuhon Colony, Village & PO Ghanauli, Tehsil & District Rupnagar.
....Opposite Parties
Complaint under Section 35 of the Consumer Protection Act, 2019
QUORUM
SH. RANJIT SINGH, PRESIDENT
MRS. RANVIR KAUR, MEMBER
ARGUED BY
Sh. Amandeep Saini, Adv. counsel for complainant
O.Ps. exparte
Order dictated by Sh. Ranjit Singh, President
ORDER
SH. RANJIT SINGH, PRESIDENT
1. Complainant has filed the present complaint seeking directions to the opposite parties to refund the amount of Rs.2,50,000/- along with interest @ 18% per annum; to pay Rs.1,35,000/- as rent; to pay Rs.20,000/- as compensation on account of unfair trade practice and deficiency in service; to pay Rs.20,000/- as litigation charges along with the interest @ 18% per annum from the date of agreement till its realization in the interest of justice.
2. Brief facts made out from the complaint are that the O.Ps. are running the business of Real Estate, constructing flats, developing colonies and selling the plots etc. on profit basis. In addition to that they are also running the deposit business like banks, financial institutions. The OP No.1 is the Chief Managing Director, O.P. No.2 is the Director and the OP No.3 is the Branch Manager of the M/s Nature Heights Infra Limited having its office at Nuhon Colony, VPO Ghanauli, Tehsil & District Rupnagar. The O.P. No.1 attracted the general public at large by giving advertisement on the cable network and News papers etc that they were going to present Nature Hotel and Resorts in Village Darbaan Khaas, Tehsil & District Pathankot in which they would provide world class resort and residential Hub including Residential Colony, Parks and Club etc. It is further stated that O.Ps. induced the general public to book the plots/share with them in the said Hotel and Resort. On the allurement of O.Ps, the complainant was purchased land measuring 1 Kanal and 16 Marlas for a total consideration of Rs.2,50,000/- in hotel/township. The expression of interest cum agreement was executed between the complainant and Ops on 16.01.2015. As per the terms and conditions of that agreement, the complainant had paid full and final payment of Rs.2,50,000/- at the time of agreement. It was also agreed that if the purchaser does not want to retain the land at the end of 3 years from the first payment received dated 27.09.2013, she can sell back the same to the seller at the price of purchasing amount or the price as mutually agreed between the parties. It is further stated that after the date of agreement no rent/theka has been received by the complainant from the Ops in any of year as per agreement. Thereafter, the complainant approached to the Ops to refund the amount deposited by him at the time of agreement, but the Ops have not met in their office. Hence, this complaint.
3. On being put to the notice, none appeared on behalf of O.Ps. No.1 to 3. Even publication proceedings were completed against the OPs No.1 to 3 but despite service by way of publication, neither the OPs nor any body else have appeared on their behalf. Accordingly, they were proceeded against ex-parte vide order dated 02.07.2021.
4. On being called upon to do so, the learned counsel for the complainant has tendered duly sworn affidavit of complainant Ex.CW1/A along with documents Ex.C1 to Ex.C3 and closed the evidence.
5. We have heard the learned counsel for the complainant and have gone through the record of the file, carefully.
6. The learned counsel for the complainant vehemently argued that being allured by the advertisements published and offer given by the opposite parties, the complainant purchased the land measuring 1 kanal 16 marla for a total sum of Rs.2,50,000/-, which was paid to the opposite parties. As per the terms and conditions agreed between the parties, the opposite parties was to pay farm rent Rs.45,000/- per year to the complainant. The complainant requested number of times to refund the amount of Rs.2,50,000/- along with interest and Rs.13,5000/- as rent of three years as per agreement. This act of the opposite parties amounts to deficiency in service and unfair trade practice and as such, they are liable to compensate the complainant or to refund the amount deposited with it along with interest.
7. The whole purpose of pleadings is to give fair notice to each party of what the opponent's case is and to ascertain with precision the point(s) on which the parties agree and those on which they differ. The purpose is to eradicate irrelevancy. The complaint is a concise statement of facts and if no reply is filed to the complaint, the averments made therein are deemed to have been admitted. No amount of evidence can be looked into upon a plea, which was never put forward in pleadings. A party cannot adduce evidence and set case inconsistent to the pleadings. No amount of proof can substitute pleadings, which are the foundation of the claim of the parties. When there is no pleading, the party is precluded from adducing evidence. In the present case, opposite parties have not appeared, despite service by way of registered notice as well as publication and were proceeded against ex-parte. As such, the evidence adduced by the complainant remains un-rebutted.
8. Before discussing the case on merits, the preliminary issue is to decide whether the complainant is a consumer as per the Act or not? The definition of 'consumer' as defined in the Consumer Protection Act, 2019, in Section 7 is mentioned below:
'consumer' means any person who,-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose];
[Explanation - For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning, his livelihood by means of self- employment;]"
9. In the instant case, the complainant and opposite parties executed an agreement for sale on 16.01.2015, Ex.C-1 wherein both the parties agreed to sell and purchase 1 Kanal 6 marlas land for a consideration amount of Rs.2,50,000/- only. The complainant/purchaser/vendee paid full amount of Rs.2,50,000/- to the vendor/seller/opposite parties. Further as per conditions in the agreement the purchased land was to be given on farm rent to the seller/opposite parties at the rate of Rs.45000 per year. The conditions of the agreement are mentioned below in verbatim:-
"That the purchaser would receive Rs.45,000/- per year as lease rent in respect of agriculture land.
10. Complainant counsel referred the pleadings, receipt Ex.C2 agreement vide which complainant deposited Rs.2,50,000/-. Ex.C3 is the copy of FIR. Then there is one agreement dated 16.01.2015, which is between the parties regarding confinement of deposit full and final payment was to be made at the time of agreement.
11. After referring the above said part of agreement, complainant counsel made prayer that the O.Ps. neither cleared the title nor refund the amount deposited by the complainant. After several requests made by the complainant to the OPs, neither fulfill the condition as per agreement nor refund the amount of Rs.2,50,000/- deposited by the complainant and prayed deficiency is made out and the complaint deserves to be allowed.
12. After appreciating the totality of the document and appreciating the arguments, complainant deposited Rs.2,50,000/-. In this way, the complainant is the consumer O.Ps did not make any improvement as per the agreement then complainant filed the complaint in the month of July 2019. O.Ps. did not appear despite notice and were proceeded against exparte. Qua the fraud committed some consumers got registered FIR No.59 dated 3.6.2016 against the O.Ps and its copy is Ex.C3. So complainant is able to prove deficiency on the part of O.Ps. regarding the payment of Rs.2,50,000/- only. So, the complainant is held entitled to Rs.2,50,000/-. The responsibilities of the O.Ps. is joint because OP No.3 acted though in the capacity of Manager on behalf of O.Ps. No.1 & 2. They are liable to pay jointly and severally.
13. We, have seen in a number of cases these business men extract more and more money from the genuine consumers in various shapes. The Consumer Protection Act, 2019 is a special Act, which is enacted to prevent the mal practice as well as the unfair trade practice prevailing among the business men.
14. In the light of discussion made above, the complaint stands allowed ex-parte with the directions to the O.Ps. to pay Rs.2,50,000/- to the complainant along with interest @ 7.5% per annum from the date of deposit. As per the agreement, the complainant is entitled the rent @ 45,000/- per month total amounting to Rs. 3,15,000/-. So, the OPs are also directed to pay rent for a sum of Rs.3,15,000/- to the complainant. The OPs are further directed to pay a compensation amount of Rs.15,000/- to the complainant along with Rs.5000/- as litigation expenses. The OPs be also directed to comply with the said order within the period of 30 days from the date of receipt of certified copy of this order.
15. The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.
ANNOUNCED (RANJIT SINGH)
Dated. 07.03.2022 PRESIDENT
(Mrs.RANVIR KAUR)
MEMBER
