BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No.608 of 2014
Date of Institution: 8.5.2014
Date of Decision: 27.6.2016
Simple Khanna D/o Sh. Satish Khanna r/o House No. 71, Street No.3, Netaji Lane,Tagore Avenue, Majitha Road, Amritsar
Complainant
Versus
- M/s. Impact Sare Magnum Township Private Limited, G.T. Road, By Pass, Amritsar through its Director/Managing Director/Partner/Any other principal officer or authorized signatory thereof.
- Ranjit Singh S/o not known R/o not known (The particulars regarding Ranjit Singh is to be disclosed by opposite party No.1)
- Sukhcharan Singh s/oi Gurcharan Singh R/o 169-A, Ranjit Avenue, Amritsar
Opposite Parties
Complaint under section 11 & 12 of Consumer Protection Act, 1986
Present: For the Complainant : Sh.Jaswinder Singh,Advocate
For the Opposite Party No.1: Sh. S.M.Vermani,Advocate
For the Opposite Party No.2: Sh.S.K.Dhawan,Advocate
For the Opposite party No.3 : In person
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Simple Khanna complainant has brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that complainant is permanent resident of abovesaid address and is peace loving and law abiding citizen of India . She is the consumer of the opposite party as per the definition of section 2(1)(d) of the Consumer Protection Act. One Mr.Sanjay Joshi, employee of opposite party met the complainant , who represented himself to be employee/representative of opposite party. Since the complainant was interested in investment of some amount in some beneficial scheme, the complainant talked to Mr. Sanjay Joshi in this respect and she asked about the procedure for investing the amount in purchasing plot to which Mr.Sanjay Joshi allured and assured and trapped the complainant in his sweet words that if the complainant invests their money in purchasing plot of opposite party this will give huge benefit to the complainant then complainant came into the sweet words of Mr. Sanjay Joshi and believed on his assurance. The complainant as per asking of Sanjay Joshi , invested her money in plot No. 29 of opposite party and accordingly complainant had paid Rs. 76000/- vide cheque bearing No. 762962 and Rs. 2,00,559/- vide cheque No. 762961 both dated 31.3.2012 both drawn on ICICI Bank Limited from her account No. 001301546546 which cheques were duly got encashed bgy the opposite party. It was the bounden duty of the opposite party to supply the copy of agreement of plot after getting down payment but the opposite party has failed to do so despite repeated requests made by the complainant. It may not be out of place to mention over here that said Mr.Sanjay Joshi on 31.3.2012 by alleging that the booking of plots have now been ended/completed, took signatures of the complainant on various blank papers. The complainant got surprised when she received letters from the opposite party vide which they had demanded balance payments of the alleged plots having No. 16 as well as plot No. 115 and when the complainant enquired the matter, she came to know that saidMr.Sanjay Joshi, unauthorizedly, without the knowledge and consent of the complainant invested her hard earned money in two separate plots i.e. Rs. 76000/- stood invested in plot No. 16 (allegedly agreed to be purchased with unknown person by the name of Sukhcharan Singh) while Rs. 2,00,559/- stood invested in plot No. 115 ( allegedly agreed to be purchased with unknown person by the name of Ranjit Singh)_. The complainant never agreed to purchase those plots. Moreover, opposite party has illegally, unauthorizedly and without the knowledge and consent of the complainant inserted the name of one Ranjit Singh in the agreement which was otherwise never agreed to be purchased by the complainant . Opposite party has committed a clear cut fraud with the complainant by investing her hard earned money in the alleged plots having No. 16 and 115 and by impleading two unknown person Sukhcharan Singh and Ranjit Singh as co-vendee . More over, complainant never met and known said Ranjit Singh nor his father name, nor his address ever made known to the complainant. The particulars regarding Ranjit Singh stood made known to the complainant through letters issued by opposite party No.1. Since the complainant agreed and wishes to purchase plot No. 29 and since the opposite party against the wishes, consent and knowledge of the complainant, invested her hard earned money in the alleged plots having No. 16 and 115 and as such the opposite party has committed a clear cut fraud with the complainant and committed breach of trust for which complainant also reserves her rights to initiate criminal proceedings against the opposite party. The complainant has sought for following reliefs vide instant complaint :-
(i) Opposite parties be directed to refund the amount of Rs. 2,76,559/- alongwith interest @ 12% p.a. from the date of entitlement till its realization to the complainant.
(ii) Opposite parties be also directed to pay compensation of Rs. 50000/- for causing mental and physical harassment to the complainant.
(iii) A sum of Rs. 11000/- as litigation expenses be also paid to the complainant.
Hence, this complaint.
2. Upon notice opposite parties No.1 & 2 appeared and filed separate written statements contesting the claim of the complainant.
3. In the written version filed on behalf of opposite party No.1, certain preliminary objections taken inter alia that complainant is guilty of suppression of material facts from this Court , as such the complaint is liable to be dismissed on this ground alone. The real facts and actual state of affairs are that complainant and opposite party No.3 approached opposite party No.1 vide application dated 31.3.2012 for allotment of plot in Crescent Park C,G.T. Road Bye pass, Amritsar bearing plot No. 16 measuring 299.53 sq.yards and paid a sum of Rs. 3,00,888/- out of this a sum of Rs. 76000/- was paid by the complainant vide cheque No. 762962 dated 31.3.2012 drawn on ICICI Bank Limited and the remaining amount was paid by opposite party No.3 to opposite party No.1 as earnest money and similarly, the complainant and opposite party No.2 approached opposite party No.1 vide application dated 31.3.2012 for allotment of plot in Crescent Park C, G.T. Road Bye Pass, Amritsar bearing plot No. 115 measuring 187.81 sq.yds and paid a sum of Rs.2,00,559/- by complainant vide cheque No. 762961 dated 31.3.2012 drawn on ICICI Bank Limited to opposite party No.1 as earnest money. The opposite party No.1 with respect to plot No. 16 served upon the complainant and opposite party No.3, demand letter cum service invoice dated 7.3.2013, letter dated 15.3.2013, reminder for past dues dated 30.4.2013, demand letter cum service invoice dated 25.6.2013, notice dated 19.11.2013. Similarly opposite party No.1 with respect to plot No. 115 served upon the complainant and opposite party No.2 demand letter cum service invoice dated 7.3.2013, letter dated 15.3.2013, reminder for past dues dated 30.4.2013, demand letter cum service invoice dated 25.6.2013, notice dated 19.11.2013. As per averment made hereinabove , written reply and the allegations in the complaint particularly in para 2 of the complaint which reads as “That one Mr. Sanjay Joshi employee of opposite party met with the complainant and represented himself to be the employee/representative of the opposite party. Since complainant was interested in investment of some amount in some beneficial scheme, the complainant talked to Mr. Sanjay Joshi in this respect and asked about the procedure for investing the amount in purchasing plot to which Mr.Sanjay Joshi allured and assured and trapped the complainant that if the complainant invest their money in purchasing plot of the opposite party this will give huge benefit to the complainant”. It is clearly borne out that the complainant is not a consumer as defined in section 2(1)(d) of the Consumer Protection Act, 1986. The complaint is not maintainable in view of the fact that the dispute is solely for specific performance of contract of the sale of immovable property which does not come within the purview of “consumer” as per section 2(i)(d) of the Act. As per the allegations in the complaint itself, opposite party No.1 has not promised to render any service in respect of the subject plots to the complainant. No element of service in contract –relationship between the parties is of purchaser and seller of plots which would be governed by law of contract and not under the Consumer Protectin Act. The complainant is not a consumer qua the opposite party. The relationship between the complainant and the opposite party is purchaser and seller of plots which could be governed by law of contract and not under the Consumer Protection Act. There is no deficiency of service , any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service qua the opposite party. On merits, facts narrated in the complaint have been specifically denied.
4. In written reply on behalf of opposite party No.2, it is admitted to the extent that the complainant is permanent resident of abovesaid address and is peace loving and law abiding citizen of India. It is submitted that in the first week of March, 2012, opposite party No.2 went to the site known as “Crescent Parc “Vallah, Bye pass for purchasing the plots. At that time a lady known as Simple Khanna was also present there. It appears that she had also come at the site for purchasing the plot. The complainant herself introduced to opposite party No.2 that she is head of Punjab Kesri of Amritsar branch and she used to invest some money in some beneficial scheme and she felt that if she invest some amount in purchasing plot, she would earn huge profit by selling the same after some time. The opposite party No.2 also told the complainant that he is proprietor of Sidh Shree Bedi Property Consultants G.T. Road, Amritsar and deals in business of sale and purchase of plots. The opposite party No.2 told the complainant that he is also interested in purchasing plot but since he has already purchased number of plots and as such now he is not in a position to purchase the plot. The complainant asked the opposite party No.2 that at present she is also not in a position to purchase the plot because she has already made up her mind to purchase one plot with her known person who also deals in the same business. The complainant gave address of her office to opposite party No.2. After some time opposite party No.2 went to the office of the complainant. The complainant as well as opposite party No.2 made up their mind for purchasing one plot jointly from opposite party No.1 in equal share. Thereafter they went to opposite party No.1. A person known as Sanjay Joshi was present in the office. He explained the terms and conditions of the scheme known as Crescent Parc launched by Impact Sare. After considering the complainant and opposite party No.2 applied for a plot measuring 187.81 sq.yds and fulfilled the application form for allotment of plot by affixing their snaps on the front page of the application. The opposite party No.2 was not having any cheque book at that time and as such he paid a sum of Rs. 1,00,280/- in cash to the complainant as half share of the earnest money so that the amount of Rs. 2,00,559/- by way of cheque be attached with the application form. They also signed the application form as first applicant and second applicant. The earnest money was jointly paid by way of cheque for a sum of Rs. 2,00,559/- to opposite party No.1. Since the cheque was issued by the complainant and as such the complainant became first applicant and opposite party No.2 became second applicant in the application for allotment of plots. As per terms and conditions of the application for allotment of plot, first instalment was to be paid on or before the date fixed and it was agreed that at that time first instalment would be paid by opposite party No.2 by way of cheque and the complainant would pay half share of the amount in cash to opposite party No.2 by making the payment of first instalment to opposite party No.1. Before making the payment of first instalment to the opposite party No.1, dispute arose between the complainant and opposite party No.1, as such first instalment could not be deposited by opposite party No.2 in time. It is denied that complainant never invested money in plot No. 29 of opposite party No.1. However, it is admitted that complainant as well as replying respondent had paid a sum of Rs. 2,00,559/- by way of cheque No. 702961 dated 31.3.2012 in equal share at the time of applying for the allotment of plot in the abovesaid scheme by both of them. Remaining facts stated in the complaint have been specifically denied. It is stated that relief may kindly be awarded by directing the opposite party No.1 to refund an amount of Rs. 2,00,559/- to the complainant as well as to opposite party No.2 alongwith interest @ 12% p.a. and Rs. 11000/- as litigation expenses.
5. Opposite party No.3 has appeared in person but did not opt to file any written version to contest the claim of the complainant.
6. In her bid to prove the case, Sh.Damanpreet Singh,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.CW1/A, copy of letter dated 15.3.2013 Ex.C-1, copy of letter dated 15.3.2013 Ex.C-2, copy of demand letter cum service invoice Ex.C-3, copy of demand letter cum service invoice Ex.C-4, copy of reminder for past dues Ex.C-5, copy of reminder for past dues Ex.C-6, copy of account statement Ex.C-7, copy for the application for registration for allotment Ex.C-8 and closed the evidence on behalf of the complainant.
7. To rebut the aforesaid evidence, Sh.Vivek Vermani, Adv.counsel for opposite party No.1 tendered affidavit of sh.Rajesh Sethi Ex.OP1/1, copy of application dated 31.3.2012 Ex.OP1/3, copy of demand letter cum service invoice dated 25.6.2013 Ex.OP1/4, copy of letter dated 15.3.2013 Ex.OP1/5, copy of reminder for post dues dated 30.4.2013 Ex.OP1/6, copy of demand letter cum service invoice dated 25.6.2013 Ex.OP1/7, copy of notice dated 19.11.2013 Ex.OP1/8, copy of demand letter cum service invoice dated 7.3.2013 Ex.OP1/9, copy of letter dated 15.3.2013 Ex.OP1/10, copy of reminder for post dues dated 30.4.2013 Ex.OP1/11, copy of demand letter cum service invoice dated 25.6.2013 Ex.OP1/12 ,notice dated 19.11.2013 Ex.OP1/13 , affidavit of Sh.Ajay Singh Cheema,Director Ex.OP1/14 and closed the evidence on behalf of opposite party No.1.
8. On the other hand opposite party No.2 tendered into affidavit of Sh.Ranjeet Singh Ex.OP2/1 and closed the evidence on behalf of opposite party No.2.
9. We have heard the ld.counsel for the parties as well as gone through the evidence on record as well as written synopsis of arguments submitted on behalf of complainant as well as all the opposite parties.
10. It has vehemently been contended by the ld.counsel for the complainant that complainant had invested money in plot No. 29 as according to the site plan, it was at prime location. Complainant on the asking of Sanjay Joshi has given two cheques one of Rs. 2,76,559/- whereas according to their own terms and conditions minimum sale consideration is Rs. 5,00,000/- for plot less than 240 sq.yds and Rs. 7,00,000/- in plot more than 240 sq.yds in area. Opposite parties have played fraud with the complainant by violating their own terms & conditions. Sanjay Joshi, Ranjit Singh & Sukhcharan Singh all were agents of opposite party No.1 and all requisite forms are in the custody of these persons and opposite party No.1 and they have manipulated the forms and same have been tampered with those documents. Ranjit Singh has admitted in reply in para 2 that he is proprietor of Sidh Shree Properties and the application form bears the stamp of Sidh Shree properties. It is clear cut fraud by the agents and the company, respectively i.e. opposite parties No.1,2 & 3. Complainant does not know these persons and has never met as per written reply of Ranjit Singh, opposite party No.2, he mentioned that he met complainant just only once and how an unknown person can transact such a valuable property with some unknown person . Complainant in additional evidence has produced the form which was in her custody which bears plot No. 29. Opposite party No.1 never produced the original forms/documents, which was in their custody as there was manipulation in the original forms. Ranjit Singh & opposite party No.1 have mentioned in their respective replies that they have orally paid money but have not produced any evidence in this regard. There is no documentary evidence to substantiate their claim. Sanjay Joshi had obtained signatures on form by the complainant alone and later on manipulated the form. Signatures of other person Ranjit Singh and all other persons are dealers of opposite party No.1 and Ranjit Singh, who is dealer & he himself has attested the form. It is,therefore , requested that following relief may be awarded in favour of the complainant :-
- Opposite party No.1 be directed to refund the amount of Rs. 2,76,559/- alongwith interest @ 12% p.a. from the date of entitlement till its realization.
- Opposite party No.1 be directed to pay Rs. 50000/- as compensation and Rs. 11000/- as litigation expenses.
Hence, this complaint.
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13. From the aforesaid discussion, it transpires that instant complaint is not triable by this Forum and the matter in controversy require a detailed thorough probe and number of witnesses as well as documents were required for scrutiny in the civil Court. Consequently, instant complaint fails and the same is ordered to be dismissed. However, the parties shall be at liberty to approach appropriate forum/court for deciding the controversy in dispute. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated : 27.6.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
