Chandigarh

StateCommission

A/71/2019

M/s Chandigarh Royale City Promoters Pvt. Ltd. - Complainant(s)

Versus

Naresh Bhayana - Opp.Party(s)

Amarbir Dhaliwal & Gurtej Partap Singh Sandhu Adv.

08 Jul 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	71 of 2019
Date of Institution	:	11.04.2019
Date of Decision	:	08.07.2024

M/s Chandigarh Royale City Promoters Pvt. Ltd., Office : Village Karala, Tehsil Derabassi, District Mohali, through its Director/Authorised Representative, Sh.Daljit Singh.

   …Appellant/opposite party

V e r s u s

Naresh Bhayana correspondence address : House No.332, Sector 2-A, Chandigarh through its G.P.A. Holder namely Sh.Sanjay Bhayana s/o Sh. Ram Dhan Bhayana r/o House No.332, Sector 2-A, Chandigarh

•  

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                    MR.PREETINDER SINGH, MEMBER.

 

Present:-    Ms. Tania Mahajan, Advocate for the appellant.

                  Ms.Shivani Chopra, Authorized Representative of the respondent alongwith Sh.Sanjay Bhayana, brother of the respondent. 

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   This case has a chequered history. Consumer complaint bearing no.621 of 2016 under  the provisions of Consumer Protection Act, 1986 (in short the CPA 1986) was filed by the complainant-Naresh Bhayana before the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the District Forum), which was partly allowed vide order dated 12.09.2018 as under:-

“….In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. OPs 1 & 2 are directed as under:-

1. To immediately refund the total amount deposited i.e. Rs.12,00,000/- to the complainant alongwith interest @ 9% per annum from the date(s) of deposit till realisation.
2. To pay Rs.1,00,000/- to the complainant as compensation for deficiency in service and mental agony and harassment caused to him;
3. To pay to the complainant Rs.15,000/- as costs of litigation.

This order be complied with by OPs 1 & 2 within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above...…”

2.           The said order dated 12.09.2018  was challenged by way of filing First Appeal No.71 of 2019 before this Commission, which was dismissed being barred by limitation, vide order dated 22.04.2019. The said dismissal order dated 22.04.2019 was challenged before the Hon’ble National Commission in Revision Petition No.1494 of 2019, which was allowed and the matter was remanded to this Commission for disposal of the case on merits, after hearing both the parties.
3.           Before the District Forum (now District Commission), it was the case of the complainant-respondent that in the year 2012, on being advertised in newspapers, qua launching of a residential project under the name and style of Chandigarh Royale City on Zirakpur-Patiala Highway, Village Karala, District Mohali, Punjab, the complainant contacted opposite party no.3/agent of opposite parties no.1 and 2. It was apprised to the complainant that a plot measuring 200 sq. yards in the project of opposite parties would be sold at the cost of Rs.19.00 lakhs.  On being convinced, total sum of Rs.12.00 lakhs was deposited in the year 2012 vide proper receipts.  Remaining amount was to be deposited in installments, but, the amount was not deposited as a perception was developed, that permission to raise construction was not granted in favour of the opposite parties, therefore, there is no likelihood of plot being coming up as per promise.  On being asked, neither possession of the plot was offered nor any amount was refunded to the complainant.  Hence complaint was filed before the District Forum, seeking refund of Rs.12 lacs alongwith interest, compensation and litigation expenses. Hence consumer complaint was filed before the District Commission.
4.           Opposite parties no.1 and 3 initially filed joint reply and raised objections that the District Forum did not vest with territorial jurisdiction as the property in question is located within Mohali jurisdiction; investment was made by the complainant for commercial purpose, therefore, he is not a consumer; the complainant remained silent for a period of about five years and the remaining agreed installments were not paid by him.
5.           Despite service, none put in appearance  on behalf of opposite party no.2 as a result whereof, it was proceeded against exparte vide order dated 10.10.2016.
6.           On 04.07.2017 neither any evidence was filed nor anybody put in appearance on behalf of opposite party no.3, therefore, it was proceeded ex-parte by the District  Forum.
7.           In the rejoinder filed, the complainant reiterated all the averments contained in his complaint and controverted those, contained in the written version of opposite parties no.1 and 3.
8.           The contesting parties led evidence before the District Forum.
9.           The District Forum after hearing the contesting parties and on going through the material available on record, partly allowed the consumer complaint, in the manner stated above. 
10.           Hence this appeal.
11.           We have heard the contesting parties and gone through the material available on the record; including the written submissions, very carefully.
12.           Counsel for the appellant submitted that the respondent/complainant has failed to establish that he had paid an amount of Rs.12 lacs in respect of the plot in question. She further submitted that the receipts, Annexure C-3 and C-4 placed on record does not bear the stamp of the appellant nor the same are signed by authorized representative of the appellant. However, the receipt of Rs.1 lac has been admitted by the appellant. She further submitted that the District Forum was not vested with pecuniary jurisdiction to entertain and decide the main consumer complaint but it fell into a grave error in deciding the same.
13.           On the other hand, counsel for the respondent submitted that out of the total amount of Rs.19 lacs, an amount of Rs.12 lacs (Rs.4 lacs and Rs.8 lacs) vide respective receipts dated 31.08.2012, Annexure C-3 and C-4, was paid by the respondent  and this fact has been acknowledged by the appellant in the document, Annexure C-5. Apart from it, the fact of receipt of Rs.12 aforesaid has not been specifically denied by the appellant in the written statement filed before the District Forum. She further submitted that the appellant has failed to place on record any material like books of accounts, ledger etc. to substantiate its contention regarding non receipt of Rs.12 lacs. She further submitted that since the respondent had restricted its claim of refund alongwith interest @9% p.a., at the time of arguments,  the District Forum  was having pecuniary jurisdiction to decide the main consumer complaint out of which this appeal has arisen.
14.           First coming to the objection taken with regard to pecuniary jurisdiction of the District Forum to decide the main consumer complaint. It may be stated here that we have gone through the findings of the order passed by the Hon’ble National Commission in Revision Petition No.1494 of 2019 and found that the huge delay of 157 days in filing the appeal before this Commission,  stood condoned by it holding that the issues qua payment of amount of Rs.12 lacs need to be decided by this Commission, on merits, after detailed appreciation of evidence of the parties. In this case, the District Commission has awarded interest @9% p.a. on the amount of Rs.12 lacs to be refunded to the respondent. Thus, if we count the total value of the claim by adding @9% p.a. interest, it falls below Rs.20 lacs, which is squarely covered by the pecuniary jurisdiction of the District Forum, under CPA, 1986. Apart from it, no cross appeal has been filed by the respondent before this Commission for enhancement of the said interest and on the other hand, counsel for the respondent has vehemently contended before this Commission that the respondent is restricting his claim of refund of the amount of Rs.12 lacs, alongwith interest @9% p.a. only, as already awarded by the District Forum and has waived of the remaining interest sought for by him. Thus, keeping in view the peculiar facts and circumstances of this case, objection taken by the appellant qua pecuniary jurisdiction stands rejected.
15.           Now coming to the payment of Rs.12 lacs made by the respondent. It has been specifically asserted by the respondent in para no.7 of his complaint that he has paid an amount of Rs.12 lacs (Rs.4 lacs and Rs.8 lacs) vide respective receipts Annexure C-3 and C-4 both dated 31.08.2012,. This fact has not been specifically denied by the appellant in its reply. Rather, following reply to para no.7 has been given:-

“….The contents of para no.7 are admitted to the extent that the complainant approach to the OP for purchasing a plot and he submitted the registration form. The remaining contents of the para are wrong and denied….”

 

16.           Apart from above, there is a document, Annexure C-5 dated 18.10.2013 issued by the appellant, wherein it has been mentioned as under:-

 

“………Your payment was fallen due as per payment schedule in registration form/Expression of interest.

 

That outstanding amount (including EDC/PLC if any) 41.44% is due towards the plot and Delayed interest thereon 21.00% amounting to Rs.215293.00 on account of delay in making payment of installment as agreed by you in Expression of interest/Registration form. This has already been conveyed to you through telephone calls and letters.

 

We request you to remit the above amount by NOVEMBER 07, 2013 to avoid further interest/penalty etc.………”

 

17.           Issuance of the document, Annexure C-5 has not been disputed by the parties. Perusal of contents of the document, Annexure C-5 reveals that it has been clearly admitted that outstanding dues towards the plot in question is only to the extent of 41.44% of Rs.19 lacs, including EDC/PLC. Thus, if we calculate 41.44% of total sale consideration of Rs.19 lacs, it comes to Rs.7,87,360/- meaning thereby that the only outstanding amount pending to be paid by the respondent in respect of the plot in question was Rs.7,87,360/-  (41.44% of Rs.19 lacs). As far as receipt no.1860 dated 31.08.2012, Annexure E-1 for an amount of Rs.1 lac is concerned, the complainant has specifically denied payment of the said amount of Rs.1 lac to the appellant. Thus, from the document, Annexure C-5 whereby the appellant had demanded the outstanding amount equal to 41.44% of sale consideration of Rs.19 lacs, it is sufficient to hold that it stood admitted by the appellant that it has already received the remaining amount to the extent of 58.56% which comes to Rs.11,12,640/- against which it had received Rs.12 lacs in the year 2012 itself, vide respective receipts dated 31.08.2012, Annexure C-3 and C-4.
18.           It is not out of place to mention here the appellant has failed to place on record any cogent evidence such as account books, ledger, income tax returns etc. to prove that no such amount of Rs.12 lacs has ever been received and accounted by it in its record. Under these circumstances, the respondent has proved his case that he had paid an amount of Rs.12 lacs to the appellant in respect of the plot in question.
19.           Now the question which arises for consideration is, as to whether, the District Forum was right in ordering refund of the amount of Rs.12 lacs paid by the respondent to the appellant in respect of the plot in question or not. It may be stated here that we have gone through the entire reply of the appellant filed before the District Forum and found that no plausible reason has been given by it, as to why it failed to  complete the  development work at the project site and deliver possession of the plot in question to him, within a reasonable period of two to three years from the date of making payment in the year August 2012 in the manner stated above. The plot in question was booked as far as in 2012 and till the date of filing of the consumer complaint in the year 2016 or till its disposal thereof in the year 2018, possession was not delivered to the respondent. Under these circumstances, the District Forum was right in ordering refund of the amount paid by the respondent alongwith interest, compensation and litigation expenses, which in our considered opinion is reasonable, fair and adequate.
20.           Keeping in view the above discussion, we are of the considered view that the impugned order passed by the District Forum, partly allowing the consumer complaint, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, and did not need interference of this Commission. 
21.           Resultantly, this appeal stands dismissed with no order as to cost.
22.           Pending application(s) if any stands disposed of, accordingly.
23.           Certified copies of this order be sent to the parties, free of charge, forthwith.
24.           The concerned file be consigned to Record Room, after completion and the record of the District Commission-I, U.T, Chandigarh, after annexing the additional documents, if any, submitted before this Commission in this appeal, be sent back immediately.

Pronounced

08.07.2024

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (PREETINDER SINGH)

 MEMBER

Rg.