Punjab

Faridkot

CC/15/154

Ramesh Kumar - Complainant(s)

Versus

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

Atul Gupta

25 May 2016

ORDER

     DISTRICT  CONSUMER   DISPUTES   REDRESSAL   FORUM,   FARIDKOT

 

Complaint No. :       154

Date of Institution :  4.11.2015

Date of Decision :    25.05.2016

1. Ramesh Kumar,

2. Vijay Kumar,

   Both  s/o Manohar Lal r/o Backside Calltax Petrol Pump, Mohalla Talab, District Faridkot.                                                                                 

   ...Complainants

   Versus

3. 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.

4. Amit Kakkar, s/o Raj Kumar street no. 6, Sidhu Nagri, Abohar, Director M/s Nature Height Infra Ltd.

5. M/s Nature Height Infra Ltd through its Branch Manager, Near Bus Stand, Faridkot.

                                              ........ 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,

                        Sh Kuldeep Singh Adv, Ld Counsel for OP-2,

   OPs-1 and 3 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.12,54,267/-with interest besides Rs.2,00,000/-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 at Kotkapura Faridkot National Highway, Sandhwan, Kotkapura representing it to be a development project and believing on assurance given by officials of OPs at Faridkot complainant applied to Ops for booking of plot measuring 903 square feet for earning their livelihood and paid an amount of Rs12,43,945/-through cheques as well as cash, which was duly encashed and received by OPs on different times vide consolidated receipt dt 25.11.2014. As per agreement dt 16.01.2015 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. 7 to complainants but after enquiry it was found that plot no. 7 had been sold to someone else and when complainants asked to 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 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 12,54,267/- with interest and has also prayed for compensation of Rs.2,00,000/- 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 5.11.2015, complaint was admitted and notice was ordered to be issued to the opposite parties.

   4                                                        Notice was issued to Ops and as per record, OP-1 and 3 appeared in the Forum through counsel but they did not file reply despite availing many opportunities and later on none appeared on behalf of  them either in person or through counsel, therefore, both OP-1 and 3 were proceeded against Ex-parte vide order dt 27.04.2016. Registered Cover containing copy of complaint issued to OP-2 not received back undelivered and when OP-2 did not appear in the Forum on date fixed till 4.00 O’clock, the same was proceeded against exparte. However, later on during the pendency of case, OP-2 appeared in the Forum through counsel and made request to set aside the exparte order passed against it and in the interest of justice, OP-2 was permitted to join the proceedings of case at the stage for which it was fixed.

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

   6                                       As OP-2 was allowed to join the proceedings in present case, therefore, OP-2 tendered documents as Annexure - 1 to 3 and then, closed the evidence on behalf of OPs.

   7                                         Ld Counsel for complainant vehementally argued that Ops launched a project at Kotkapura Faridkot National Highway, Sandhwan, Kotkapura representing it to be a development project and believing on assurance given by officials of OPs, complainant applied for booking of plot measuring 903 square feet for earning their livelihood and paid an amount of Rs12,43,945/-through cheques and in cash, which was duly encashed and received by OPs on different times vide consolidated receipt dt 25.11.2014. it is contended that as per agreement dt 16.01.2015 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. 7 to complainants but after enquiry it was found that said plot no. 7 had been sold to someone else by OPs and when complainants asked to 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 to 5.

   8                                   Ld Counsel for OP-2 argued before the Forum that he has been falsely dragged in this Forum as he has already resigned from the post of Director of company of Ops 1 and 3 on 20.03.2013 and since then, he has no link with the affairs of company and his resignation has been duly accepted by them and even intimation regarding resignation of OP-2 was given to Registrar of Companies. Moreover, said agreement is not executed in the presence of OP-2 and he is totally ignorant of this fact. He has nothing to do in the present complaint as he has left the Company of Op-1 and 3. Op-2 is neither an executant nor witness to the agreement between the parties and he has been falsely dragged in litigation. It is further argued that as per law and rules, no individual Director or Member of any Company can be made liable in his individual capacity for the act done by the company.  And as Op-2 has already resigned from the post of Director of Company of Ops then, he can not be held liable for any such act done by them as he has no concern with alleged purchase or agreement between parties. It is further averred that he has been falsely dragged in litigation. He has prayed for dismissal of complaint against him. In his support, he has relied upon annexures produced by him.

   9                                              We have heard the arguments addressed by ld counsel for complainant and OP-2 and have also carefully gone through the record available on the file.

   10                                         From the careful examination of document Ex C-2, which is a Full Payment Receipt dt 25.11.2014 clearly reveal the fact that Ops received amount of Rs.12,43,945/-from complainant both in cash as well as through cheques. On the face of it, this document proves that complainants made payment of huge amount of Rs.12,43,945/-to OPs, which was duly received by them. Ex C-3 is Agreement of sale executed in favour of complainant, which clears the point that in lieu of receiving payment of Rs12,43,945/- from complainants, 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 the amount of Rs12,43,945/- to Ops. Ex OP-4 and 5 are payment plan and jamabandi respectively giving strength to the pleadings of complainants. Documents Ex C-2 and C-3 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. In reply OP-2 argued before the Forum that he has been falsely dragged in this litigation as he has already resigned from the company of Ops 1 and 3 and his resignation has been duly accepted by them. Moreover, said agreement is not executed in the presence of OP-2 and he is totally ignorant of this fact. He has nothing to do in the present complaint as he has left the Company of Op-1 and 3. He has prayed for dismissal of complaint against him.

   11                             The main contention of complainants is that complainant paid Rs12,43,945/-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 Rs12,43,945/-, 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.

   12                                              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.12,43,945/-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. However, OP-2, who was Director and employee of OP-1 has already resigned from the directorship of said Company prior to filing of present complaint and as such, he is not personally responsible for the acts of company.

   13                                            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 OP-1 and 3 have been deficient in services and there is trade mal practice on the part of OP-1 and 3 in not handing over the possession of plot as per their promise and also failed to return the amount of Rs.12,43,945/- received from complainants. Hence, the present complaint is hereby allowed. The OP-1 and 3 are directed to refund the amount of Rs.12,43,945/-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-1 and 3 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. Complaint against OP-2 stands dismissed. 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 : 25.05.2016

                                            Member            Member                  President

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