RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No. 1301 of 2014

Javed Property Dealer & Housing Scheme,

A-34, Gali No.5, Main Pusta Road, Bhajan Pura,

Delhi-110053 through Sh. Alla Rakkha,

S/o Sh. Manwer Hussain, First Add.A-275/13,

Brijpuri, New Delhi-110053                              .….Appellant.

Versus

Niranjan Lal  s/o Sri Moti Lal, 67-A, DDA Flat,

Shastri Park, New Delhi-110053                    .….Respondent.

Present:-

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Govardhan Yadav, Member.

Sri S.P. Pandey and Sri Hemant Misra for the appellant.

Sri Abhishek Singh for the respondent.

Date 19.7.2018

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This appeal has been filed against the judgment and order dated 31.5.2014, passed by the District Forum-II, Ghaziabad in complaint case no.716 of 2012.

The facts leading to this appeal, in short, are that the respondent/complainant had applied for allotment of a plot of 100 sq. yards in  Rosy City Colony in Ghaziabad of the OP. The complainant had paid Rs.21,000.00 through bankers cheque to the OP. The cost of the plot was Rs.5 lacs and as per the receipt the sale-deed of the plot was to be executed in March, 2012. The complainant paid Rs.2,54,000.000 on various dates. The appellant/OP thereafter, asked him to make payments through cash for which he would get the receipts and hence, the complainant paid Rs.2,25,000.00 in cash on

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various dates to the appellant/OP. The appellant/OP had assured the complainant that the sale-deed would be executed in March on the scheduled time but the OP kept stalling the matter hence, the complainant reached the site and asked the OP about the sale-deed of the plot, then a person sitting there with the OP stated that the said plot belonged to him. Thereafter, the complainant made a complaint about the incident to the police. Besides, the area of the alleged plot was 89 sq. yards hence, the complainant did not want to take that plot and wanted the refund of his deposits with interest. The OP has, by committing cheating, deprived a number of persons of their crores of rupees. The complainant, thereafter, filed a complaint in the Forum wherein the OP filed their WS mentioning therein that they had offered the complainant to give the agreed plot subject to the payment of the balance amount. The OP had also prepared a document duly signed by the OP  which was in the possession of the complainant who had not signed the same. The complainant has suppressed the material facts and therefore, this complaint is liable to be dismissed. A  sale-purchase transaction was carried out between the parties but the complainant has failed to make full payment and hence, the physical possession of the agreed plot could not be handed over for which the OP was still ready subject to full and final payment. The complainant had made no payments after 14.8.2011 and as he failed to deposit due instalments hence, the OP kept reminding the complainant for the balance amount but the complainant has lodged the complaint with the police and has tried to put pressure through antisocial elements. It was not

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believable that a man keep making payments without taking receipt of the earlier payment. No cause of action has ever accrued therefore, this complaint is liable to be dismissed. The ld. Forum thereafter, passed the impugned order as under on 31.5.2014:-  

  "अंतिम आदेश/सहायता एवं व्‍यय:- उक्‍त संपूर्ण विवेचना के आधार पर यह परिवाद आंशिक रूप से स्‍वीकार करते हुए परिवादी के पक्ष में विपक्षी के विरूद्ध सी.पी.ए. 1986 की धारा-14(1)(डी) के अधीन यह आदेश दिया जाता है कि विपक्षी, परिवादी को परिवादी से प्राप्‍त पूर्व वर्णित कुल 5,00,000(पांच लाख) रूपये की धनराशि, परिवादी द्वारा अदा किये जाने के दिनांक से ताअदायगी दिनांक तक 12 प्रतिशत साधारण वार्षिक ब्‍याज की राशि जोड़कर, जितनी भी राशि होवे उतनी राशि, इस परिवाद के परिवाद व्‍यय दो हजार रूपये के साथ निर्णय दिनांक से एक माह के अंदर अदा करे। विपक्षी स्‍वयं का प्रतिवाद वहन करेगा।"

          Feeling aggrieved with the impugned order that the appellant has filed this appeal mainly on the grounds that the complainant himself had not made the entire payment of the instalments. The complainant did not make any payment in cash. The complainant did not submit the original receipt before the Forum below wherein it has been mentioned that in clause 2 of the terms and condition that in case of failure in making the payment on due time the appellant shall have the right to forfeit the deposited amount. Besides, the complaint was filed after expiry of more than 2 years hence, it was barred by limitation and the complaint should not have been entertained by the Forum below. Besides, the disputes relates to complex questions of facts and law and hence, this case was not maintainable in the Forum below. Even though the complainant had not made any payment after 14.8.2011 but

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the ld. Forum has passed the order against the facts and evidence, therefore, the impugned order is liable to be set aside and the appeal allowed.

          Heard counsel for the parties and perused the entire records.

          In this case, it is not disputed that the complainant had applied for a plot to be allotted for a sum of Rs.5 lacs. The disputed point according the appellant is that the complainant did not make full payment of the cost of the plot therefore, they did not commit any deficiency in service in not giving the possession of the plot to the complainant whereas, according to the respondent/complainant had made the entire payment of the cost of the plot but still the OP did not handover the possession and executed the sale-deed and therefore, the OP committed deficiency in service. It is also disputed that the complainant is not a consumer under the Consumer Protection Act therefore, the complaint was not maintainable in the Forum below.    

          So, now it is to be seen as to whether the complainant was not a consumer under the Consumer Protection Act and therefore, the complaint was not maintainable in the Forum below. Thereafter, it is also to be seen as to whether the appellant/OP committed any deficiency in service in not handing over possession of the plot.

          We first take up the point as to whether this complaint is maintainable in the Forum below or not. In this regard, it is argued by the ld. Counsel for the appellant that the dispute related to allotment of a plot and therefore, it was not a consumer dispute as the complainant was not a consumer as

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defined under the provisions of the Consumer Protection Act. It is further argued by him that the plot was an immoveable property and therefore, the dispute which related to an immoveable property could not be raised under the provisions of the Consumer Protection Act. Ld. counsel for the appellant has cited the ruling III(1993) CPJ 7 (SC), Lucknow Development Authority vs. M.K. Gupta. In the aforesaid ruling, it has been held by the Hon'ble Supreme Court that the jurisdiction of Fora could not be ousted because service related to immovable property. So, from the ruling cited by the appellant himself  it is borne out that the jurisdiction of the Fora could not be ousted simply because immovable property i.e. plot was involved. Ld. counsel for the appellant cited another ruling of Civil Appeal no.331 of 2007, Ganeshlal s. Shyam,  wherein the Hon'ble Apex Court has held that failure to handover possession of the plot of land simplisitor can not come within the jurisdiction of the District Consumer Forum, State Commission and the National Commission and on the basis of this ruling, it is argued that the case involving possession of the plot could not be entertained in the Forum below but we find that the facts of the case were entirely different as the Hon’ble Apex Court had found that the sale-deed of the plot in question was already executed therefore, the facts are entirely different hence, this ruling is not applicable to the facts of the instant case. So from the facts of the case just because the dispute related to plot, it did not oust the jurisdiction of the Fora as was held by the Hon’ble Supreme Court in the aforesaid case of LDA vs. M.K. Gupta and therefore, this case was very well maintainable in the Forum below.

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          The appellant raised another issue that the complaint was filed after expiry of 2 years hence, it was barred by limitation, hence, the complaint was not maintainable in the Forum. In this regard, it is argued by the ld. Counsel for the appellant that the plot was booked on 4.3.2010 whereas the complaint was filed on 13.12.2012 i.e. after expiry of 2 years hence, it was not maintainable but we find that the OP has himself stated in his WS that the last payment was made on 14.8.2011, so as per their own admission the cause of action subsisted till 14.8.2011 and hence, the complaint appears to have been filed within 2 years of the cause of action arisen on 14.8.2011. Therefore, there is no substance in the arguments of the ld. Counsel for the appellant that the complaint was filed beyond time. Accordingly, it is held that the complaint was filed within time. 

Now, we come the main issue as to whether the appellant/OP committed any deficiency in service in not giving the possession of the plot despite payment of cost by the complainant. If so, its consequences.

In this regard, we find that the complainant has stated that the cost of the plot was Rs.5 lacs. The plot was measuring 100 sq. yards and it was sold @ Rs.5,000.00 per sq. yard and it is quite evident from the receipts filed by the complainant which are not denied by the appellant/OP. The complainant has taken the stand that Rs.21,000.00 was paid as booking amount vide cheque no.040326 date 4.3.2010 and thereafter, Rs.2,54,000.00 was paid on different dates till 14.8.2011. The appellant/OP has not challenged the aforesaid deposits made by the complainant. The complainant has

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further submitted that Rs.2,25,000.00 was given by him to the appellant/OP in cash for which no receipts were given and it was assured by the OP that the receipt would be handed over subsequently. So, according to the complainant he had made payment of Rs.2,75,000.00 plus Rs.2,25,000.00 and thus, made the entire payment of the cost of the plot but the OP did not give the possession of the plot nor executed the sale-deed. The appellant/OP has challenged the stand of the complainant that Rs.2,25,000.00 was paid by him in cash to the OP. In this regard, it is argued by the ld. Counsel for the appellant/OP that no person would keep on making payments without getting any receipt as from the averments made by the complainant in his complaint, it transpires that Rs.50,000.00 was given on 10.9.2011, again Rs.50,000.00 on 9.10.2011, against Rs.50,000.00 on 8.1.2012 and Rs.75,000.00 on 7.2.2012. So here counsel for the appellant questions the aforesaid deposits by the complainant without getting any receipts for payments may by them earlier. It is argued by the ld. Counsel for the complainant that with regard to the amount of Rs.2,25,000.00 an agreement was entered into on 16.10.2012 between the parties whereby the OP had agreed to make payment of Rs.2,45,000.00 on 15.4.2013. So, it is the stand of the complainant that this agreement was with regard to the amount paid by the complainant in cash of Rs.2,25,000.00 for which no receipts were given but subsequently an agreement, as aforesaid, was executed but in this regard, it is argued by the ld. Counsel for the appellant that this agreement was with regard to the amount infact deposited by the complainant of Rs.2,75,000.00 for which

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receipts were given and for which the complainant was pestering to refund the amount and accordingly this agreement was written by the appellant/OP but he complainant was required to return the receipts but they were not returned by him, as is evident from a complaint made by the appellant/OP to the police on 26.3.2013 wherein the agreement for refunding the amount of Rs.2,45,000.00 till 15.4.2013 has been specifically mentioned. In this regard, we find that the arguments advanced by the ld. Counsel for the complainant that this agreement was in fact in lieu of the receipts for the amount paid in cash by the complainant but interestingly, there is no mention of this agreement by the complainant in his complaint. Had there been any agreement entered into between the parties with regard to the refund of the amount of Rs.2,25,000.00 paid in cash then the complainant would have certainly made mention of that fact in his complaint but no mention of that agreement in the complaint gives credibility to the arguments of the ld. Counsel for the appellant/OP that the agreement was executed for refunding the amount which was received by the appellant/OP from the complainant and for which receipts were issued. If the fact of no mention of this agreement in the complaint is considered in  the backdrop of the fact that the complainant was duly given the receipts by the appellant/OP for the amount deposited by him till 14.8.2011 then a question naturally arises as to why the complainant kept on paying amounts in cash to the tune of Rs.2,25,000.00 on different dates without getting any receipts. So there is obviously no justification for the complainant for not taking

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the receipts and it appears that the complainant tried to utilize the agreement for the amount paid by him in cash which under the circumstances of the case, can not be sustained. Therefore, the complainant fails to prove the point that he paid Rs.2,25,000.00 in cash to the OP in addition to Rs.2,75,000.00 paid by him. Here now the counsel for the appellant argues that as the amount of Rs.5 lacs was not paid fully therefore, the OP could not be hauled up for deficiency in service with regard to giving possession of the plot and execution of sale-deed, but from the records, it is clear that the complainant was promised a plot of 100 sq. yards but he was offered a plot of 89 sq. yards which the complainant was not ready to take. Secondly, the appellant/OP should have refunded the amount of Rs.2,75,000.00 with interest to the respondent/complainant when the complainant did not make payment of the entire cost of the plot but they did not do so and therefore, on this score, there is deficiency in service on the part of the appellant/OP. Therefore, the appellant/OP to that extent committed deficiency in service, hence the ld. Forum has rightly concluded about the deficiency in service of the OP, albeit on different ground but has passed the impugned order for refunding of Rs.5 lacs with 12% interest which was not correct as the respondent/complainant appears to have paid only Rs.2,75,000.00 and therefore, the complainant was entitled to get refund of Rs.2,75,000.00. Accordingly, the impugned order deserves to be modified and the appeal party allowed.            

ORDER

The appeal is partly allowed. The impugned judgment and order dated 31.5.2014 is modified to the extent that the

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appellant/OP will pay only Rs.2,75,000.00 with 12% interest. The rest of the order shall remain as it is.

  Certified copy of the judgment be provided to the parties in accordance with rules.

         (Vijai Varma)                       (Govardhan Yadav)

    Presiding Member                             Member

Jafri PA-II

Court No.5