Branch Manager, Nature Height Infra Ltd, Near Bus Stand, Faridkot. Now, at South Avenue, Street No. 12/13, Near D A V College, Abohar.
........ OPs
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum: Sh. Ajit Aggarwal, President,
Sh. Purshotam Singla, Member.
Present: Sh. Raj Kumar, Ld Counsel for Complainant,
OPs 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.1,00,000/- with interest besides Rs.25,000/-as compensation for harassment and mental agony alongwith litigation expenses of Rs.15,000/-.
2 Briefly stated the case of complainant is that OPs launched a project to develop a residential colony at village Khedi Devnala, Tehsil Multai, District Betul, Madhya Pradesh, India representing and holding that it was developing the project and believing on assurance given by officials of OPs at Faridkot complainant entered into an agreement with Ops on 30.05.2013 to purchase 7200 square feet land situated at Madhya Pradesh for a sum of Rs. 1,00,000/- and as per terms and conditions of agreement, complainant made entire payment of Rs.1,00,000/- vide cheque no.975421/cash. All the payment by cheque and cash was paid by complainant at the Faridkot office of OPs through the agent of OPs. It was settled between complainant and OPs that if complainant does not want to retain the land at the end of six year, he can sell back the same to OPs at the price of purchasing amount and it was also settled that complainant would receive Rs.15,00/- per month as theka or lease rent for the said period from Ops. It is further contended that complainant received some cheques as lease rent from Ops, but last year they stopped making payment of lease rent to complainant. complainant made many requests to OPs to pay lease rent for further period but all in vain. As OPs have failed to make payment of lease rent to complainant, therefore, complainant does not want to retain the land and want to get refund of his cost price. Complainant made several requests to OPs to refund his entire amount but Ops, did not listen his requests. Thereafter, complainant issued legal notice dt 17.08.2016 to Ops requesting them to make due payment of lease rend and also to refund his Rs.1,00,000/- alongwith interest, but they flatly refused to admit his genuine request, which amounts to deficiency in service. 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.1,00,000/- with interest and has also prayed for compensation of Rs.25,000/- 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 20.09.2016, complaint was admitted and notice was ordered to be issued to the opposite parties.
4 As per office report, notice issued to Ops through registered cover received back with report of Postal Authorities as “addressee left’. Thereafter, notice was served through publication and it is presumed that OPs have sufficient knowledge of notice issued against them. Despite making several calls to OPs, no body appeared in the Forum on behalf of Ops on date fixed either in person or through counsel, therefore, after waiting for a long period till 4.00 O’ clock, Ops were proceeded against exparte vide order dt 9.01.2017.
5 Ld. Counsel for complainant tendered in exparte evidence, affidavit of complainant as Ex.C-1 and documents Ex C-2 to C-8 and then, closed the evidence on behalf of complainant.
6 Ld. Counsel for complainant vehementally argued that OPs launched a project to develop a residential colony at village Khedi Devnala, Tehsil Multai, District Betul, Madhya Pradesh, India representing and holding that it was developing the project and believing on assurance given by officials of OPs at Faridkot complainant entered into an agreement with Ops on 30.05.2013 to purchase 7200 square feet land situated at Madhya Pradesh for a sum of Rs. 1,00,000/- and as per terms and conditions of agreement, complainant made entire payment of Rs.1,00,000/- vide cheque no.975421/cash. All the payment by cheque and cash was paid by complainant at the Faridkot office of OPs through the agent of OPs. It was settled between parties that if complainant does not want to retain the land at the end of six year, he can sell back the same to OPs at the price of purchasing amount and it was also settled that complainant would receive Rs.15,00/- per month as theka or lease rent for the said period from Ops. It is further contended that complainant received some cheques as lease rent from Ops, but last year they stopped making payment of lease rent to complainant. Complainant made many requests to OPs to pay lease rent for further period but all in vain. As OPs have failed to make payment of lease rent to complainant, therefore, complainant does not want to retain the land and want to get refund of his cost price. Complainant made several requests to OPs to refund his entire amount but Ops, did not listen his requests. Thereafter, complainant issued legal notice dt 17.08.2016 to Ops requesting them to make due payment of lease rent and also to refund his Rs.10 lacs alongwith interest, but they flatly refused to do so and did not pay any heed to his requests. Complainant approached Ops many times with request to refund his amount with interest, but all in vain. 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 accepting the complaint. He has stressed on documents Ex C-1 to 8.
7 As there is no rebuttal from OPs side therefore we have heard the exparte arguments addressed by ld counsel for complainant and have also carefully gone through the record available on the file.
8 The case of the complainant is that OPs launched a project for development of a residential colony at village Khedi Devnala, Tehsil Multai, District Betul, Madhya Pradesh, India and on assurance of OPs, complainant entered into an agreement with Ops on 30.05.2013 to purchase 7200 square feet land situated at Madhya Pradesh for a sum of Rs. 1,00,000/- and as per terms and conditions of agreement, complainant made entire payment of Rs.1,00,000/- vide cheque no.975421/cash. All the payment by cheque and cash was made at the Faridkot office of OPs. It was settled between complainant and OPs that if complainant does not want to retain the land at the end of six year, he can sell back the same to OPs at the price of purchasing amount and it was also settled that complainant would receive Rs.15,00/- per month as theka or lease rent for the said period from Ops. OPs paid lease rent for some time, but thereafter, they stopped giving lease rent to complainant. Despite repeated requests by complainant, OPs did not pay the lease rent and as they have failed to make payment of lease rent to complainant, therefore, complainant does not want to retain the land and wants to get refund of his cost price. Complainant made several requests to OPs to refund his entire amount but Ops, did not listen his requests. Issuance of legal notice dt 17.08.2016 also bore no fruit as Ops flatly refused to admit his genuine request, which amounts to deficiency in service. Complainant has stressed on document Ex C-2, which is a copy of agreement between complainant and Ops and in it, Ops have admitted that they have received payment of Rs.1,00,000/- from complainant. Copy of bank account passbook of complainant Ex C-4 also reveals the debit entry of Rs.1,00,000/- from the account of complainant. Legal notice Ex C-5 reiterates the grievance of complainant.
9 As the land which was agreed to be sold is situated at Madhya Pradesh and this Forum has jurisdiction to try and decide this complaint. Ld counsel for complainant argued that all the transactions between the parties were made at Faridkot. The payment regarding plot was also made to OPs at their Faridkot office and agreement was also executed between parties at Faridkot within the territorial jurisdiction of this Forum. So, this Forum has jurisdiction to try and decide the complaint. He put reliance on citation 2005(3) Consumer Protection Judgements 581 titled as Divisional Railway Manager/Commercial, Southern Railway Vs Jasbir Singh decided by Union Territory Consumer Disputes Redressal Commission, Chandigarh wherein they held that plead of lack of territorial jurisdiction was arose on the ground that train originated from Ernakulam in the State of Kerala and the destination station was New Delhi and as such, District Forum, Chandigarh has territorial jurisdiction to adjudicate the complaint. The Hon’ble State Commission observed that so far as the booking of ticket from the website of the Indian Railways at Chandigarh is concerned, it has been admitted and once this fact is admitted then a part of cause of action arose at Chandigarh where the tickets were booked on website and the tickets were delivered at Chandigarh, u/s 11 (2) (c) of the Consumer Protection Act, 1986, which provides that complaint shall be instituted in a District Forum within the local limits of whose jurisdiction. In our considered opinion, the District Forum was right in holding that it had territorial jurisdiction to entertain and adjudicate the complaint cases and the arguments advanced by the ld counsel for the appellants to the contrary has no merit. In order to prove that this Forum has jurisdiction to decide the present complaint, ld counsel for complainants has placed reliance on citation in case law 2014 (2) Consumer Law Today titled as Ms Dilshad Gill Vs M/s EMAAR MGF Land Pvt Ltd & Ors, wherein Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U T Chandigarh has observed that Consumer Protection Act, 1986, Section 11-Territorial Jurisdiction-Flat at Chandigarh-Apart of Cause of action, accrued to the complainant at Chandigarh and as such, this Commission has the territorial jurisdiction to entertain and decide the complaint. In present case also, the payment is received by Ops from complainant at Faridkot as per Expression of Interest-cum-Agreement. It is further argued that Ops received payment at Faridkot and agreement in question is also executed between parties at Faridkot. He further put reliance on the citation 1997(10 Consumer Protection Judgments 144. Titled as Kanshi Ram Vs Maruti Udyog Ltd and Ors decided by Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla wherein they held that what is cause of action. The cause of action constitutes bundle of facts which are taken with the law applicable to them gives the plaintiff the right to relief against the defendant. It goes without saying that the aforementioned circumstances that the complainant is a resident of Bilaspur and that he got the bank draft prepared at Bilaspur, confirmed the proposal of respondent no. 2 at Bilaspur and got the vehicle after the receipt of the same bank draft, are in fact the vital facts in the formation of the contract of purchase/sale of Maruti Car. Having regard to all these circumstances, we have no hesitation to hold that part of cause of action has arisen in Bilaspur and the District Forum has jurisdiction to try the complaint. They further discussed in Lucknow Development Authority Vs M K Gupta III (1993) CPJ (SC) AIR1994 Supreme Court 787. The Supreme Court has held that the provisions of the Act have to be construed in favour of consumer to achieve the purpose of enactment as it is social benefit oriented legislation. Having regard to the above observations of the Supreme Court, if it is found that the District Forum, Bilaspur in the facts and circumstances of the case has jurisdiction otherwise under Section 11 of the Consumer Protection Act, 1986 to decide the complaint, Courts should not so readily infer about the exclusion of the jurisdiction of the District Forum. If two interpretations are which go in favour of consumer, should normally be adopted by the Courts.
10 As complainant has made last payment to OPs on 30.04.2013 and agreement of sale was executed on 30.05.2013 i.e more than two years ago within the filing of complaint and thus, on the point of limitation, ld counsel for complainant has placed reliance on citation 2015 (3) Consumer Law Today, 16 titled as Satish Kumar Pandey & anr Vs M/s Unitech Ltd wherein our Hon’ble National Commission, New Delhi observed as Consumer Protection Act, 1986, Sections2 (1) (g), 2 (1) (o) & 24 A Housing Construction - Limitation - Delay in construction and possession by the builder-Plea of OP that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24-A-Held-it is by now settled legal proposition that failure to deliver possession being a continuous wrong, it constitutes a recurrent cause of action and therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum-it is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24-A of the Consumer Protection Act would began to run-In that case the complaint has be to filed within two years from the date on which the seller refuses to deliver possession to the buyer. It is further argued that the price of land in dispute is Rs.1,00,000/- and complainant has made entire payment of Rs.1,00,000/- and thus, complainant has made the entire payment of land, therefore, Ops have no right to retain the amount of complainant and are liable to refund the entire payment received from complainant. Ld Counsel for complainant argued that complainant has received lease rent worth Rs.1500/-per month from Ops till April, 2015, but thereafter, Ops stopped making payment of lease rent to complainant as agreed between them.
11 From the above discussion and case law produced by the ld counsel for complainant, we are fully convinced with the arguments advanced by ld counsel for complainant. Complainant has succeeded in proving his case. The act of OPs for receiving the payment of land and not giving the payment of lease rent as agreed between parties within time amounts to deficiency in service and trade mal practice on their part.
12 From the careful perusal of the record and keeping in view the case law produced by complainant, this Forum is fully convinced with the arguments advanced by ld counsel for complainant and is of considered opinion that OPs have been deficient in services and there is trade mal practice on the part of OPs in not making payment of lease rent as per their agreement/ promise and also failed to return the amount received from complainant. Hence, the present complaint is hereby allowed. Therefore, OPs are directed to refund the amount of Rs.10 lacs to complainant with interest at the rate of 12% per anum alongwith payment of lease rent for the remaining period from 01.05.2015 till final realization as complainant has himself admitted that he has received lease rent till April, 2015. 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. OPs 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. 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 : 16.01.2017
Member President
(P Singla) (Ajit Aggarwal)
