ORDER

(Per: D.K. Tyagi, Member):

            This is an appeal under Section 15 of the Consumer Protection Act, 1986  against the order dated 05.04.2013 passed by the District Forum, Haridwar in consumer complaint No. 163 of 2012.  By the impugned order, the District Forum has dismissed the consumer complaint.  

2.       Briefly stated the facts of the case as mentioned in the consumer complaint, are that the opposite parties are builders and do business of sales of residential colonies under the firm named M/s Octagon Builders & Promoters Pvt. Ltd. and opposite party No. 2 is a branch office of M/s Octagon Builders & Promoters Pvt. Ltd.  On the basis of advertisement in the newspaper, the complainant contacted to the opposite parties for purchase of a plot.  The opposite parties told the complainant that their project is a devotional project and in the said project, plots will be available on a very cheap rates.  On believing offer of the opposite parties, the complainant became ready to purchase a plot of 80 sq.yards for a sum of      Rs. 3,50,000/- at opposite parties’ site in Sai Dham Colony near Sai Temple, Santour City near Patanjali Yogpeeth, Roorkee-Haridwar Highway, which is two-side open plot behind Honda Company’s plots. The opposite parties registered the complainant’s name against the said plot on 16.03.2009.  The complainant issued a cheque of Rs. 60,000/- vide receipt dated 29.04.2009 and Rs. 60,000/- &         Rs. 72,000/-vide receipt dated 12.05.2009 and Rs. 25,000/- paid in cash on 18.04.2010 to the employee of opposite parties named Sh. Arvind Kumar Bali, Marketing Manager.  Thus, the complainant has paid total sum of Rs. 2,17,000/- to the opposite parties and Rs. 1,33,000/- is remaining balance, which is to be paid at the time of registry of the said plot.  When the complainant asked the opposite parties for possession of the said plot in her favour, the opposite parties neither given possession of the said plot in her favour nor executed registry in her favour, although they have received the payment of Rs. 2,17,000/-.  According to the complainant, the opposite parties do not want to execute registry of the said plot in complainant’s favour, rather they want to give this plot to any other person.  The opposite parties are pressurizing the complainant to take another plot which is about 1.5 KM away from the said plot in the end of the project in a corner, which is of low value from the said plot booked in favour of the complainant. The complainant is aged 65 years old lady and remains ill, her husband is 75 years old person, who are not able to reach the plot where the opposite parties want to give another plot.  The opposite parties are harassing the complainant as well as her husband by not providing the said plot booked in her name.  The opposite parties promised that they will hand-over the said plot till the year 2010, even then they did not hand-over the said plot to the complainant.  No temple of Sai Baba has been constructed nearby said plot so far.  The complainant sent a legal notice to the opposite parties through her counsel, even then the opposite parties did not reply the same.  The family members of the complainant have also sent so many letters to the opposite parties, but they did not reply those letters.  By the conduct of the opposite parties, the complainant is facing mental harassment and, therefore, there is deficiency in service on the part of the opposite parties and due to this the complainant has filed a consumer complaint against the opposite parties before the District Forum, Haridwar.

3.       The District Forum, Haridwar issued a notice against the opposite parties, but the opposite parties neither appeared before the Forum, nor filed any written statement, therefore, an order was passed by the District Forum to proceed the case ex-parte against the opposite parties. 

4.       In the appeal also, notices were issued by this Commission against the respondents-M/s Octagon Builders & Promoters Pvt. Ltd.  An acknowledgment due pertaining to respondent No. 2 was received.  However, none appeared on behalf of the respondents.  Thereafter, on 27.07.2015 learned counsel for the appellant was present and none was present on behalf of the respondents, although an acknowledgement due pertaining to respondent No. 2 is available on record. On 27.07.2015, it is also mentioned in the order sheet that the judgment of the Forum below indicates that the respondents also did not appear before the District Forum during the proceedings of the consumer complaint and the case was adjourned in the interest of justice with a note that in case the respondents do not appear on the next date fixed, then the matter shall be proceeded ex-parte against the respondents. Again on 28.09.2015, the learned counsel for the appellant appeared and none appeared on behalf of the respondents, therefore, arguments of the learned counsel for the appellant were heard. 

5.       We have gone through the impugned judgment and order passed by the District Forum, Haridwar and also gone through the documents filed by the appellant before the District Forum. 

6.       Learned counsel for the appellant-complainant has filed copy of letter dated 16.03.2009 of Octagon Builders & Promoters (P) Ltd. alongwith layout map of Sai Dham, Santour City (Haridwar) Complex (paper Nos. 17 & 18), copy of receipt dated 18.04.2010 of payment of Rs. 25,000/- by cash received by Sh. Arvind K. Bali, General Manager Marketing, Octagon Builders & Promoters (P) Ltd. (paper No. 19), copy of letter dated 01.05.2009 of Octagon Builders & Promoters (P) Ltd. (paper No. 20), copy of receipt dated 29.04.2009 of payment of Rs. 60,000/- (paper No. 21), copy of receipts dated 12.05.2009 of payment of Rs. 60,000/- & Rs. 72,000/- (paper Nos. 22 & 23), copy of location map (paper No. 24), copy of invitation letter dated 24.03.2010 (paper No. 25), copy of legal notice dated 21.12.2011 (paper Nos. 28 to 29), copy of letter dated 13.07.2010 (paper No. 30), copy of letter dated 03.11.2011 (paper No. 31), copy of letter dated 07.04.2011 (paper No. 32) and several cuttings of newspapers (paper Nos. 36 to 38).

7.       Photocopy of layout map of Sai Dham, Santour City (Haridwar) Complex (paper No. 18) reveals that Sh. Arvind K. Bali, General Manager Marketing has mentioned that the corner plot is booked for Smt. Parvati Pandey-appellant. The respondents have also received Rs. 25,000/- through Sh. Arvind K. Bali, General Manager (Marketing), Octagon Builders & Promoters (P) Ltd. from Smt. Parvati Pandey-appellant on 18.04.2010 and a receipt of payment has been issued in favour of Smt. Parvati Pandey (paper No. 19).  A letter of Sh. Arvind K. Bali, General Manager (Commercial and Administration) dated 01.05.2009 (paper    No. 20) also indicates that a plot of 80 sq. yds has been booked in the name of Smt. Parvati Pandey, which lies in front of Sai Dham Temple and is the corner plot as highlighted in the brochure. Several receipts of payment filed by the appellant also indicate that she has already paid a total sum of Rs. 2,17,000/- to the respondents in the year 2009-10.  A legal notice dated 21.12.2011 was also sent by the appellant through her counsel Sh. Ravi Chopra, Advocate vide registered post, in which it was advised to the respondents to hand over the physical possession of the plot offered to her and execute the sale deed in respect of the same within a period of 15 days from the date of issue of this letter.  The respondents did not reply the same and have neither gave possession nor executed the sale deed of plot in question.

8.       The appellant has filed documents regarding registration of the plot as well as documents regarding payment of Rs. 2,17,000/- in total to the respondents.  The appellant has also filed several letters which were sent by her husband and her son to the respondents which were never replied by the respondents.  The documents filed by the appellant have not been controverted at any stage by the respondents. Contents of affidavit, filed by the appellant, has also not controverted by the respondents.  In these conditions, the consumer complaint of the complainant-appellant ought to be allowed by the District Forum, but the Forum below has dismissed the consumer complaint of the complainant-appellant only on the basis that there is a letter filed on record of District Forum that the respondents-opposite parties are ready and willing to give the possession of the plot in question and execute the sale deed of plot in favour of the appellant-complainant.  We have gone through the letter of Octagon Builders & Promoters (P) Ltd. in favour of the appellant (paper No. 20) in which there is only mentioned that it is confirmed that the plot of the complainant has been booked, which is in front of Sai Dham Temple and is the corner plot, but there is no mention in the letter that the opposite parties are willing to give the possession of the plot to the complainant and to execute the sale deed of the plot in favour of the complainant-Smt. Parvati Pandey.  No time and date about giving the possession and execution of the sale deed is mentioned in this letter.  It is noteworthy that the complainant has already paid an amount of Rs. 2,17,000/- in the year 2009-10 and after about three years, the respondents neither given possession nor executed the sale deed of the plot in favour of the complainant-appellant.

9.       The District Forum has not properly considered the facts and circumstances of the case and has erred in dismissing the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside and the consumer complaint is liable to be allowed.  Consequently, the appeal is fit to be allowed.

10.     For the reasons aforesaid, the appeal is allowed. Impugned judgment and order dated 05.04.2013 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 163 of 2012 is allowed.  Respondents are directed to provide possession of the plot in question to the appellant and if the same is not possible then returned the amount of Rs. 2,17,000/- alongwith interest @ 12% per annum to the appellant within two months from the date of the order. No order as to costs.

(MRS. VEENA SHARMA)                                                               (D.K. TYAGI)