DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION CAMP COURT AT LUDHIANA
RBT/Consumer Complaint No.466 of 2018
Date of institution: 30.07.2018
Date of Decision: 19.05.2022
Jagdev Lal son of Shri Pritam dass, resident of House No.11760, Mohalla Anand Puri, Street No.2, Rahon Road, Ludhiana, through attorney Vijay Kumar son of Pritam Dass
….Complainant
Versus
- M/s Nature Heights Infra Limited having its corporate office at 2367/2, Street No.4, Near Sher-e-Punjab School, New Kuldeep Nagar, Ludhiana, through its Chairman/Managing Director/Director
- Neeraj Arora
- Amit Kukkar
- Parmod Nagpal
All directors of M/s Nature Heights Infra Limited having its corporate office at 2367/2 Street No.4, Near Sher-e-Punjab School, New Kuldeep Nagar, Ludhiana ……..Opposite Parties
Complaint under Consumer Protection Act
Quorum: Shri Ranjit Singh, President.
Mrs. Ranvir Kaur, Member
Present: Sh. P.P.S. Chahal, Advocate, for complainant
Opposite Parties ex-parte
Order dictated by :- Shri Ranjit Singh, President
Order
The present order of ours will dispose of the above complaint filed under Consumer Protection Act, received by way of transfer from District Consumer Disputes Redressal Commission, Ludhiana by the complainant against the Opposite Parties on the ground the OP1, through Ops No.2 to 4 is engaged in business of real estate and setting up of residential sites, whereas OPS No.2 to 4 are the directors of OP No.1 and are thus, actively involved in day to day affairs of OP1, which has its corporate office at Ludhiana. The complainant was approached by the Ops through their officials/employee by giving out that they are developing a residential project at Village Bringali, Tehsil Mukerian, District Hoshiarpur and have already got land for this and they also assured that the roads will be laid down, lights shall be installed and green area has been demarked under this project and under all these assurances, the complainant entered into an agreement to sell with the OP on 14.5.2012 at the above given address for the purchase of 5000 Sq. Ft in the said project with specific plot reference Id No.10032513. As per the terms of the agreement dated 14.5.2012, total price of the property was fixed at Rs.8,75,000/- which was payable in four yearly installment of Rs.2,18,750/- each and it was agreed that in case the Ops do not execute and get registered the sale deed by the end of stipulated period of four years, then they shall be liable to refund the amount received along with 13% compounded growth. The complainant made the payment to the Ops through demand drafts of Rs.2,18,750/- each. It is further alleged that the payment by way of demand drafts were executed at Ludhiana and receipts were also executed at Ludhiana but after receiving the agreed payment, the Ops gave out that they are facing some difficulties in getting clearance from the government and their layout plan is not yet approved and sought time for about two years and promised that in case the project is not complete even after two years or they fail to bring the project at the spot, then the entire money of the complainant shall be refunded along with 13% interest compounded growth as promised. In the year, 2017, the complainant visited the spot where the land is situated and the project was to be developed in village Bringali but was shocked to see that there was no development at all and the land was lying barren and not even the plots were earmarked, much less development of any roads or installing lights or developing green area. On being inquired, the complainant was informed that even the colony has not been approved for the government and no layout plan was got approved and similarly requisite permissions/NOC were also not obtained by the Ops. Vide instant complaint, the complainant has sought the following reliefs:-
- To refund Rs.8,75,000/- along with interest @ 13% per annum from the date of receipt, till the realization of the said amount towards compounded growth promised by the Ops
- To pay Rs.5,00,000/- as opportunity cost as it is because of the willful negligent act of omission and commission, the complainant could not invest into any other property and have thus lost opportunity of investing into a right property which at this moment would be at least 2 lac of rupess more dearer.
- To pay Rs.5,00,000/- as compensation on account of torture, mental agony and harassment to the complainant
- To pay Rs.55,000/- as litigation expenses.
3. On being put to the notice, none appeared on behalf of O.Ps. Even publication proceedings were completed against the OPs 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 19.09.2019.
4. On being called upon to do so, the learned counsel for the complainant has tendered duly sworn affidavit of complainant Ex.CA along with documents Ex.C1 to Ex.C25 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 opposite parties, the complainant purchased 5000 Sq. ft land from the opposite parties for a total sum of Rs.8,75,000/-, which was paid to the opposite parties through demand drafts. An agreement for sale was executed between the parties. As per the terms and conditions agreed between the parties, total price of the property was fixed at Rs.8,75,000/- which was payable in four yearly installments of Rs.2,18,750/- each and it was agreed that in case the Ops do not execute and get registered the sale deed by the end of stipulated period of four years, then they shall be liable to refund the amount received along with 13% compounded growth. In the year 2017, the complainant visited the spot where the land is situated and the project was to be developed in village bringali but was shocked to see that there was no development at all in the said land and approached the Ops at their address at Ludhiana and also at Hoshiarpurbut they even avoided to meet the complainant and now a month back, when the complainant was able to meet the concerned officials of the Ops at Ludhiana, it was disclosed that the company has virtually stopped functioning and people are getting their money. The complainant also requested for getting his money refunded but the Ops have refused to refund any money to the complainant. 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 entire 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 14.5.2012, Ex.C-2 wherein both the parties agreed to sell and purchase 5000 Sq. Ft land for a consideration amount of Rs.8,75,000/-. The conditions of the agreement are mentioned below in verbatim:-
"That if the purchaser himself/herself does not want to get the sale deed registered willingly even that condition refund of amounts along with 13% interest per annum compounded growth will be payable by him/her”.
10. Complainant counsel referred the pleadings, receipt Ex.C1 to Ex.C4 agreement vide which complainant deposited Rs.8,75,000/- on different dates. Ex.C2 is the copy of agreement executed between the complainant and Ops.
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.8,75,000/- 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.8,75,000/-. 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 May 2012. O.Ps. did not appear despite notice and were proceeded against exparte. So complainant is able to prove deficiency on the part of O.Ps. regarding the payment of Rs.8,75,000/-. So, the complainant is held entitled to Rs.8,75,000/-. The Ops are liable to pay the said amount 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.8,75,000/- to the complainant along with interest @ 8% per annum from the date of deposits. The OPs are further directed to pay an amount of Rs.30,000/- to the complainant along with litigation expenses to the tune of Rs.15,000/-. 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. The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be sent back to the District Consumer Commission, Ludhiana, for consigning the same to the Record Room.
ANNOUNCED
Dated. 19.05.2022
(Mrs.RANVIR KAUR) (RANJIT SINGH)
MEMBER PRESIDENT
CC No.466 of 2018
Ops exparte
Arguments completed. Vide our separate detailed order of today, the complaint stands allowed. Free certified copies of this order be sent to the parties, as per rules. The files be sent back to the District Consumer Commission, Ludhiana, for consigning the same to the record room.
May,19 2022
(Ranjit Singh)
(Ranvir Kaur)
