DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT
Complaint No. : 136
Date of Institution: 24.04.2017
Date of Decision: 04.09.2017
- Prem Kumar Goel, aged about 62 years, S/o Chanan Ram R/o 3/125, Park View, Tehsil and District Faridkot
- Vandana Gupta aged about 34 years W/o Summet Goyal S/o Prem Kumar Goel, R/o 3/125, Park View, Tehsil and District Faridkot Now R/o 289a Bukit Batok Street 25, 16-216, Singapore-650289 through her Power of attorney Prem Kumar Goel. Party No.1
...Complainant
Versus
- M/s Nature Heights Infra Ltd, 9, Sunder Nagri, Hanumangarh Road, Abohar, District Fazilka, Punjab through its Directors.
- Neeraj Arora alias Neeraj Thathai,Director R/o Street No.9, Sunder Nagri, Abohar, District Fazilka, Punjab.
- Amit Kukkar, Director, R/o Sidhu Nagri, Street Nagar.6, Abohar152116, District Fazilka, Punjab.
- Gourav Chhabra, Director R/o H. No.B-IV-809, Old Suraj Nagri, Abohar-152116, District Fazilka, Punjab.
- M/s Nature Heights Infra Ltd., Cluster Office, at Circular Road, 1st Floor, Gandhi Tent House Building, Near Bus Stand, Faridkot through its Manager.
C/o Head Office at Street No. 9, Sunder Nagri, Hanumangarh Road, Abohar, District Fazilka, Punjab
Now at South Avenue, Street No.12/13, Near D.A.V. College, Abohar District Fazilka
- Miss. Arkin D/o Ashok Kumar, Gobind Nagri, Street No.03 Water Works, Malout, Distt. Sri Muktsar Sahib.
- The Punjab Urban Development Authority, PUDA Bhawan, Sector 62, Sahibzada Ajit Singh Nagar ( Mohali) through its A.G.M ( H.R)
........ OPs
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum: Sh. Ajit Aggarwal, President,
Sh. Purshotam Singla, Member.
Present: Sh. Amit Mittal, Ld Counsel for Complainant
OP-1 to 3 Exparte.
Sh. V.K. Monga, Advocate, Counsel for OP-4
(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.18,46,448/- with interest besides Rs.1,00,000/-as compensation for harassment and mental agony alongwith litigation expenses.
2 Briefly stated the case of complainant is that OPs launched a project to develop a colony at Village Sandhwan, Tehsil Kotkapura, District Faridkot after getting approval from OP-4 vide license no.2013/15, representing and holding that it was developing the project and believing on assurance given by officials of OPs at Faridkot complainant applied to Ops for booking of two plot measuring 1187 square feet each for earning livelihood and paid an amount of Rs.18,46,448/- in cash. Payment was paid by complainant at the Faridkot office of OPs. Complainant purchased the said property to earn livelihood as per receipt dated 03.12.2015, 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 assured that project is an approved project from the concerned Development Authority. After making payments, complainant requested OPs to show the title deed, clearances, permissions received by Ops from various Departments regarding the project, but OPs showed inability to produce any such permission. Complainant also enquired about the said project from Local Authorities regarding clearance and sanctioning of Project, but all in vain. Thereafter, complainant requested OPs to return his amount, but they did not pay any heed to his 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.18,46,448/- with interest and has also prayed for compensation of Rs.1,00,000/- 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 02.05.2017, complaint was admitted and notice was ordered to be issued to the opposite parties.
4 As per office report, notice issued to OP-1 to 3 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, OP-1 to 3 were proceeded against exparte vide order dt 28.07.2017.
5 OP-4 appeared in the Forum through counsel and filed reply taking preliminary objections that the present complaint against OP-4 is unnecessary, unwanted and liable to be dismissed. Complainant has got no cause of action to file the present complaint against answering OP-4 has no concern with the alleged purchase of plot by complaint from OP-1 & 2 and other terms and conditions. On merits, that the answering OP has no concern regarding deposit of money with the OP-1 & 2 or issuing any receipt of payment, execution of any agreement between the complainant and OP-1 & 2 regarding the plots in question. The answering OP has no concern for refund of the money regarding the plot. The complainant is not consumer of OP-4, there is no relation or service provider and consumer between OP-4 and complainant. The complainant has no cause of action to file the present complaint against OP-4. No payment is made by the complainant to OP-4 and OP-4 is not liable to return any amount. The complainant filed frivolous and unnecessary complaint against OP-4. That the answering OP cannot be held liable for the act done by OP-1 & 2 and answering OP has nothing to do in this matter. All the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with special costs.
6 Ld Counsel for complainant tendered in exparte evidence, affidavit of complainant as Ex.C-1 and documents Ex C-2 to 5 and then, closed the evidence on behalf of complainant.
7 Ld Counsel for OP-4 tendered in evidence affidavit of Anil Garg as Ex OP-4/1 and closed the evidence on behalf of OP-4.
8 Ld Counsel for complainant vehementally argued that OPs launched a project at Village Sandhwan, Tehsil Kotkapura, District Faridkot representing and holding that it was developing the project and believing on assurance given by officials of OPs at Faridkot complainant applied to Ops for booking of two plot measuring 1187 square feet each for earning livelihood and paid an amount of Rs.18,46,448/- in cash and payment was made at the Faridkot office of OPs which is acknowledged by OPs vide receipt dated 03.12.2015. 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 also assured that project is an approved project from the Development Authority. After making payment, complainant requested OPs to show the title deed, clearances, permissions received by Ops from various Departments regarding the project, but OPs showed inability to produce any such permission. Complainant also enquired about the said project from Local Authorities regarding clearance and sanctioning of Project, but all in vain. Thereafter, complainant requested OPs to return his amount, but they did not pay any heed to his 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. 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.
9. Ld Counsel for OP-4 argued before the Forum that he has been falsely dragged in this Forum. Moreover, said agreement is not executed in the presence of OP-4 and he is totally ignorant of this fact. OP-4 has nothing to do in the present complaint. OP-4 is neither an executants nor witness to the agreement between the parties and he has been falsely dragged in litigation. It is further argued that OP-4 cannot be held liable for any such act done by OP-1 & 2 as he has no concern with alleged purchase or agreement between parties. It is further averred that OP-4 has been falsely dragged in litigation. OP-4 has prayed for dismissal of complaint against OP-4.
10 We have heard the arguments addressed by ld counsel for complainant and have also carefully gone through the record available on the file.
11 The case of the complainant is that OPs launched a project at Village Sandhwan, Tehsil Kotkapura, District Faridkot holding that they were developing the project and at the instance of OPs, complainant agreed to purchase the plot out of this land and for it he paid Rs. 18,46,448/- to OPs in cash at their Faridkot office. OPs have to obtain all permissions and NOC for developing the site and after development of land they have to give possession of the same to complainant, but OPs failed to fulfil their promise. They had not obtained any permission from any Government office and did not start the development work at site. Even it came to the notice of complainant that alleged land is not owned by OPs, which amounts to deficiency in service and trade mal practice on the part of Ops. In his support he has produced copy of receipt of payment as Ex C-5. From it, it is clear that complainant paid amount to OP-1 & 2 for purchase of land and OP-1 & 2 agreed to sell land after developing the same. As the land which was agreed to be sold is situated at Faridkot 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 the parties at Faridkot within the territorial jurisdiction of this Forum. So, this Forum has jurisdiction to try and decide this complaint.
11 As complainant has produce the receipt regarding payment dated 13.10.2015 and made all payments prior to it i.e more than two years ago from 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, Sections 2 (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.
12 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 OP-1 and 2 in receiving the payment of plot and not giving the possession of same after development within time amounts to deficiency in service and trade mal practice on their part. Hence, the present complaint is hereby allowed against OP-1 and 2 and is dismissed against OP-3 & 4. Complainant has produced cogent documentary evidence to prove that he has paid amount of Rs.18,46,448/- to OP-1 & 2 as alleged by him as he has produced on record copy of receipt Ex C-5, which show that amount given by complainant to OPs. Therefore, OP-1 and 2 are directed to refund the amount of Rs.18,46,448/- to complainant with interest at the rate of 12% per anum from the date of payment till realization. OP-1 and 2 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 2 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 : 04.09.2017
Member President (Purshotam Singla) (Ajit Aggarwal)
