Punjab

Fatehgarh Sahib

CC/10/2016

Krishan dev patial - Complainant(s)

Versus

Nature heights infra ltd - Opp.Party(s)

Pardhuman garg

20 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                             Consumer Complaint No.10 of 2016

                                                          Date of institution:  15.01.2016                  

                                                          Date of decision   :  20.01.2017

Sh. Krishan Dev Patial aged 60 year S/o Sh. Suram Singh R/o H.No.186, Sector 19, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib, Punjab

……..Complainant

Versus

1. Nature Heights Infra Ltd., Branch Office Bassi Pathana, through its Branch Manager Rahul Sethi.
2. Nature Heights Infra Ltd., 9, Sunder Nagri, Abohar, Punjab, through its Directors Neeraj Thatai, Dolly Thatai & Gaurav Chabra.
3. Neeraj Thatai director of Nature Heights Infra Ltd., 9, Sunder Nagri, Abohar, Punjab, R/o Street No.9, Sunder Nagri, Abohar.
4. Dolly Thatai director of Nature Heights Infra Ltd., 9, Sunder Nagri, Abohar, Punjab, R/o 107, Patfi Nagar, Abohar.
5. Gaurav Chabra director of Nature Heights Infra Ltd., 9, Sunder Nagri, Abohar, Punjab R/o BIV-806, Old Suraj Nagri, Abohar.

…..Opposite parties     

Complaint Under Sections  12 of the Consumer Protection Act

 

 

Quorum

Sh. Ajit Pal Singh Rajput, President                                       Smt. Veena Chahal, Member                                                   Sh. Amar Bhushan Aggarwal, Member

         

Present :      Sh. Sunil Kumar Garg, Adv.Cl. for the complainant.                       None for OP No.1                                                                                  Opposite parties No. 2 to 5 exparte

ORDER

By Sh. Ajit Pal Singh Rajput, President.

                   Complainant, Krishan Dev Patial aged 60 year S/o Sh. Suram Singh R/o H.No.186, Sector 19, Mandi Gobindgarh, Tehsil Amloh, District Fatehgarh Sahib, Punjab, has filed this complaint against the Opposite parties (hereinafter referred to as “the OPs”) under Sections 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

2.                The complainant, on the request of OP No.1, agreed to purchase a plot for a sum of Rs.4,50,000/- from OPs. The OPs entered into an agreement to sell dated 17.09.2011 of land measuring 2000 Sq. feet situated at village Garhi Mansowa, Tehsil Garh Shankar, District Hoshiarpur. As per the said agreement the complainant would be at liberty to pay sale consideration of Rs.4,50,000/- in installments of Rs.75,000/- payable on or before yearly basis during the period of 6 years. The complainant paid four installments of Rs.75,000/- each totaling Rs.3,00,000/- to OP No.1 through cheques.  As per the said agreement the OPs would obtain all kinds of NOCs, permissions, Income Tax Clearances from the government. But OPs failed to obtain any kind of NOCs etc and failed to start any construction work over the land mentioned in the agreement till date.  The complainant was always ready and still ready to pay the balance sale consideration to the OPs to perform their part of contract, but OPs are not ready and willing to perform their part of contract and they have violated the terms and conditions of the said agreement. The complainant so many times approached and requested the OPs to perform their part of contract or to return the amount of earnest money paid by the complainant along with interest at the rate of 18% p.a but they have not paid any heed to the repeated requests of the complainant, which amounts to deficiency in service on their part. Hence, this complaint for giving directions to the OPs to refund the amount of earnest money to the complainant along with interest and also to pay a sum of Rs.1,00,000/- as compensation and damages on account of unnecessary harassment, mental agony and deficiency in service and further to pay Rs.50,000/- as litigation expenses.

3.                 Notice of the complaint was issued to the OPs. OP No.1 appeared in person and OPs No.2 to 5 appeared through counsel. But later on OPs No.2 to 5 failed to appear and also failed to file written version despite so many opportunities. Hence, OPs No.2 to 5 were proceeded against exparte.

4.                The complaint is contested by OP No.1 by filing written version. OP No.1 stated in the written version that no agreement has been executed between him and complainant. He further stated that he is only a caretaker and OPs No.3 to 5 were incharge and responsible persons. He has neither received any consideration amount from complainant nor issued any receipt of amount to the complainant.  It is further stated that OP No.1 had resigned from his job on 14.01.2015 and now he has no relation with the said company.  It is further stated that OP No.1 has no concern with the agreement. There is no deficiency in service on his part. After denying the other averments made in the complaint, he prayed for dismissal of the complaint.

5.                In order to prove his case the complainant tendered in evidence true copy of agreement for sale Ex. C-1, copy of application form Ex. C-2, copy of receipts Ex. C-3 to C-7, his affidavit Ex. C-8 and closed the evidence.  OP No.1 failed to turn up after filing reply and also failed to tender any evidence despite so many opportunities. Hence, his evidence was closed by order.

6.                Learned counsel for the complainant has stated that it is established from the receipts Ex. C-3 to C-7 that the complainant had paid a sum of Rs.3,00,000/- to OPs through OP No.1. He pleaded that the Ops failed to honor the agreement Ex.C-1 and further failed to obtain any requisite permissions from the concerned Government Departments. Learned counsel pleaded that the Ops were suppose to hand over the possession within a period of 6 years but till date no construction work over the land has been started. He argued that there is gross negligence on the act and conduct of the Ops and it clearly establishes that Ops have indulged in unfair trade practice.

7.                On the other hand, the learned counsel for OP No.1 submitted that the OP was only an employee of OP No.2 to 5 thus he cannot be held liable for the act and conduct of  OP No. 2 to 5. He pleaded that OP No.1 had resigned from his job on 14.01.2015 and he has no relation with the said company-OP No. 2 to OP No.5. Learned counsel argued that the present complaint deserves to be dismissed qua OP No.1.

8.                After hearing the learned counsel for the parties and going through the pleadings, evidence, written submissions as well as oral submissions, we are of the opinion that it is established from the material placed on record i.e agreement for sale Ex. C-1, application form Ex. C-2, payment receipts Ex. C-3 to C-7 and affidavit sworn by the complainant that the OP no. 2 to 5 grossly violated the terms and conditions of the agreement of sale and further failed to obtain the requisite permissions to start the project even after receiving a sum of Rs.3,00,000/- from the complainant. With regard to OP No.1 it is established that he was only working in the capacity of Branch Manager and being an employee had no concern with the liabilities undertaken by OPs No. 2 to 5.

9.                It has come to our notice that Hon’ble State Commission in case titled as Vinay Baranwal Versus Royal Apartments & Anr,IV(2016)CPj 105(Punj.) has observed in para no. 9 & 10 that “Allotment of flat, no construction work carried out,non-delivery of possession, deficiency of service.Complainant did not commit breach of agreement by not paying all the installments as per payment plan as development work had been totally stopped and there was no possibility of delivery of possession of flat to him by OPs within agreed period. Non-development of plot itself amount to deficiency in service. Complainant is entitled to refund alongwith interest.”

10.              Accordingly, in view of our aforesaid discussion and judgment of Hon’ble State Commission in case titled as Vinay Baranwal Versus Royal Apartments & Anr, IV(2016)CPj 105(Punj.)(Supra), we find  that OPs No. 2 to 5 has committed deficiency in service. Hence we direct OPs No.2 to 5 to refund to the complainant his deposited amount of Rs.300000/- (Rs.Three Lac only) alongwith interest @ 12% per annum from the respective dates of deposit till actual refund. We also find that the complainant is entitled to a compensation of Rs.25,000/-  (Rs. Twenty five thousand only) on account of mental agony, harassment  and also Rs.10,000/- (Rs. Ten thousand only) towards litigation costs. The present complaint is hereby dismissed qua OP no.1 and stands accepted against OP no. 2 to 5. 

11.   OPs No. 2 to 5 are further directed to comply with the order of this Forum within 45 days from the date of receipt of certified of this order. In case OPs No. 2 to 5 fail to comply with this order within the given stipulated time period, they shall be further liable to pay 9% interest p.a on the awarded amount till its realization.

12.              Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated:20.01.2017

(A.P.S.Rajput)                         President

 

(Veena Chahal)                        Member

 

(A.B. Aggarwal)                      Member