BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.126 of 2015
Date of institution: 17.03.2015
Date of Decision: 05.01.2016
Gurdev Singh son of Sardara Singh resident of village Kanauran, Tehsil Kharar, District SAS Nagar (Mohali).
……..Complainant
Versus
1. Pioneer Flori Tech. Pvt. Ltd. H/o # 3154, Sector 71, District SAS Nagar Mohali through its Director Shri Ajaypal Singh Gill s/o Shri Gurbachan Singh, resident of House No.HJ 213, BRS Nagar, Ludhiana, Sh. Gurdev Singh Sidhu son of Shri Ajit Singh Sidhu, resident of # 3154, Sector 71, District SAS Nagar, Mohali, Sh. Gurtejinder Singh Sidhu son of Shri Gurdev Singh Sidhu, resident of # 3154, Sector 71, District SAS Nagar, Mohali.
2. Ajaypal Singh Gill s/o Shri Gurbachan Singh, resident of House No.HJ 213, BRS Nagar, Ludhiana, Director Pioneer, Flori Tech. Pvt. Ltd.
3. Gurdev Singh Sidhu son of Shri Ajit Singh Sidhu, resident of # 3154, Sector 71, District SAS Nagar, Mohali, Director Pioneer, Flori Tech. Pvt. Ltd.
4. Gurtejinder Singh Sidhu son of Shri Gurdev Singh Sidhu, resident of # 3154, Sector 71, District SAS Nagar, Mohali, Director Pioneer, Flori Tech. Pvt. Ltd.
5. M/s. City Garden Center and Nursery H/o Verka Milk Plant, SAS Nagar, Mohali through its owners Shri Ajaypal Singh Gill s/o Shri Gurbachan Singh, resident of House No.HJ 213, BRS Nagar, Ludhiana, Sh. Gurdev Singh Sidhu son of Shri Ajit Singh Sidhu, resident of # 3154, Sector 71, District SAS Nagar, Mohali.
6. Ajaypal Singh Gill s/o Shri Gurbachan Singh, resident of House No.HJ 213, BRS Nagar, Ludhiana, Co-owner of M/s. City Garden Center and Nursery H/o Verka Milk Plant, SAS Nagar, Mohali.
7. Gurdev Singh Sidhu son of Shri Ajit Singh Sidhu, resident of # 3154, Sector 71, District SAS Nagar, Mohali, Co-owner of M/s. City Garden Center and Nursery H/o Verka Milk Plant, SAS Nagar, Mohali.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri G.S. Khatra, counsel for the complainant.
Shri Jasjit Singh, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:
(a) refund him Rs.8,45,000/- alongwith interest @ 18% per annum from 07.08.2013 till realisation.
(b) pay him compensation of Rs.1,00,000/- for mental torture, harassment, agony and pain etc.
(c) pay him Rs.33,000/- towards litigation costs.
The complainant approached the OPs for constructing/preparing poly house in the area of 4000 sq. meters in his agriculture land at village Kanuran, Tehsil Kharar. An agreement dated 07.08.2013 was executed between the complainant and OP No.2 who signed it on behalf of OP No.3 and 4. An amount of Rs.8,40,000/- was received by OP No.4 on behalf of OP No.1 vide receipt dated 07.08.2013. The Poly house was to be constructed @ Rs.750/- per sq. meter according to NHM guidelines for a total consideration of Rs.30.00 lacs. The OPs had agreed to complete the work within 15 days from the receipt of first payment/installment, which the OPs received on 07.08.2013. The remaining payment of Rs.21,60,000/- was to be paid after completion of work. OP No.5 had agreed to provide complete project report for preparing poly house for taking bank loan within 15 days after receiving Rs.5,000/- from the complainant. OP No.6 and 7 received Rs.5,000/- from the complainant on 07.08.2013 through cheque. After receiving Rs.8,40,000/- and Rs.5,000/- from the complainant the OPs failed to perform their part of the contract and to obey the terms and conditions of the agreement dated 07.08.2013. Neither the OPs provided the services to the complainant nor returned the amount of Rs.8,45,000/- (i.e. Rs.8,40,000/- and Rs.5,000/-). The complainant sent legal notice dated 05.06.2014 through registered post which was replied vaguely by the OPs. With these allegations the complainant has filed the present complaint.
2. The OPs in the preliminary objections of their joint written statement have pleaded that the agreement dated 07.08.2013 does not bear signature of any of the OP and the signature which figure on the agreement are forged. As such the same cannot be considered as potent evidence for establishment of relationship of consumer and service provider. This Forum does not have jurisdiction to entertain the present complaint. The complainant has also forged the two receipts of payments. The alleged agreement was written on 07.08.2013, however, it was got attested from Notary Public Mohali on 04.03.2015 which clearly shows that it was unregistered document. On merits, it is pleaded that OP No.4 is the only Proprietor of M/s. City Garden Centre and OP No.2 and 3 are nothing to do with OP No.4. The complainant never approached the OPs to install poly house. The OPs never entered into an agreement with the complainant on 07.08.2013 and they never signed any kind of receipt and never took Rs.8,40,000/- and Rs.5,000/- from the complainant. The legal notice dated 05.06.2014 sent by the complainant was appropriately replied by the OPs on 17.06.2014. Thus, denying any deficiency in service on their part, the OPs have sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1, affidavit of Taranjit Singh Ex.CW-2/1 and tendered in evidence documents Ex.C-1 to C-5.
4. Evidence of the OPs consists of affidavit of Ajay Pal Singh OP No.2 Ex.OP-1/2; affidavit of Gurtejinder Singh OP No.4 as Ex.OP-1/4 and affidavit of Gurdev Singh Sidhu OP No.3 as Ex.OP-1/3.
5. We have heard learned counsel for the parties and have also gone through the written arguments filed by them.
6. The case of the complainant is that he has paid Rs.8,40,000/- in cash by withdrawing the said sum from his saving account maintained with Chandigarh State Coop. Bank Ltd., Sector 61, Chandigarh on 07.08.2013 to the OPs as first installment against the agreed total consideration of Rs.30.00 lacs for preparing poly house in the area of 4000 sq. meters at village Kanauran @ Rs.750/- per sq. meter according to National Horticulture Mission guidelines, as per duly signed agreement dated 07.08.2013 between the parties Ex.C-2. Further as per the same agreement the complainant has paid Rs.5,000/- by way of cheque to OP No.5 through its Directors i.e. OP No.6 and 7 for preparation of project report. As per the complainant the OP No.1 to 4 were to complete the work within three months after receipt of first installment of Rs.8,40,000/- on 07.08.2013 and they have failed to do so and also refund the deposited amount. OP No.5 to 7 have failed to provide him the project report after receiving Rs.5,000/- by way of cheque and have not refunded the said amount to him. Therefore, all the OPs have violated the terms of duly signed agreement (Ex.C-2) in the presence of two witnesses and, therefore, have indulged into unfair trade practice and deficiency in service.
7. The OPs in their response to the complaint have denied the execution of the agreement and receipt of the payment from the complainant and, therefore, denied any deficiency in service and unfair trade practice.
8. The questions for determination in order to resolve the dispute between the parties are as under:
(a) Whether the agreement Ex.C-2 is duly executed between the parties?
(b) Whether the complainant has made payment of Rs.8,40,000/- by cash on 07.08.2013 against due receipt to OP No.1 to 4 and payment of Rs.5,000/- by way of cheque to OP No.5 to 7?
(c) Whether the OPs have violated the terms of agreement and indulged into unfair trade practice and deficiency in service causing mental agony and harassment to the complainant?
9. In order to answer the first question it will be appropriate to go through the contents of Ex.C-2. The agreement dated 07.08.2013 has been signed by Shri Ajaypal Singh Gill as first party and complainant Gurdev Singh as second party and the agreement is witnessed by two witnesses i.e. Shri Jasjit Singh and Shri Gurdeep Singh. The first party has also issued receipt of payment of Rs.8,40,000/- and receipt of cheque of Rs.5,000/-. Thus, the agreement prima facie appears to be legal and valid agreement. The OPs have denied the execution of the agreement on the ground that signatures of the first party on the agreement are forged one. Shri Ajaypal Singh Gill OP No.2 as Director of OP No.1 and further Shri Ajaypal Singh Gill as Director of OP No.5 have signed the agreement and accepted the payment. The perusal of signatures of Ajaypal Singh Gill as appended on the agreement when compared with the signatures appended by Shri Ajaypal Singh Gill on the duly notarized affidavit Ex.OP-1/2 tendered in the present proceedings on the face of it do not appear to differ in any manner. Therefore, the bald plea of the OPs i.e. the signatures have been forged on the agreement is of no help and benefit to them to disprove the execution of agreement Ex.C-2 dated 07.08.2013. Thus, the first question is answered in favour of the complainant that the agreement Ex.C-2 is duly executed agreement between the parties.
10. Once the agreement has been held to be valid agreement, therefore, receipt of the payment appearing on the said agreement issued by Shri Ajaypal Singh OP No.2 and OP No.6 cannot be disputed. Therefore, the answer to the second question also goes in favour of the complainant who has proved the payment of Rs.8,40,000/- in cash by withdrawing the same from his saving account vide bank account statement Ex.C-5 and payment of Rs.5,000/- by way of cheque which has been duly accepted and acknowledged by OP No.2 and OP-6 i.e. Shri Ajaypal Singh, Director of OP No.1 and OP No.5.
11. As per the agreement Clause 1, the OP No.1 to 4 were to prepare poly house in 4000 sq. meter @ Rs.750/- per sq. meter according to NHM Guidelines for a total consideration of Rs.30.00 lacs. As per Clause-2 of the agreement, the work on the poly house was to be started within 15 days from the date of receipt of first installment of Rs.8,40,000/- and the complete work was to be executed by OP No.2 within 3 months from the date of starting of construction work after receiving the first installment of Rs.8,40,000/-. Since OP No.1 through OP No.2 has accepted Rs. 8,40,000/- from the complainant on 07.08.2013 it was obligatory on their part to complete the poly house within three months from 07.08.2013. The OP No.1 to 4 have failed to show on record any work undertaken by them in this regard except receiving the first installment of Rs.8,40,000/-. Further OP No.1 to 4 have failed to show the release of deposited amount in favour of the complainant despite having received the legal notice dated 05.06.2014 Ex.C-4. Thus, OP No.1 to 4 have violated the terms of agreement and have thus indulged into unfair trade practice and deficiency in service leading financial loss, mental agony to the complainant.
12. As per Clause 4 of the agreement the OP No.5 to 7 have taken an obligation upon themselves to prepare the project report for the complainant for the purpose of taking bank loan. The said project was to be prepared within 15 days after receiving agreed amount of Rs.5,000/-. OP No.6 Shri Ajaypal Singh Gill has accepted Rs.5,000/- by way of cheque from the complainant on 07.08.2013 and it was obligatory on his part to prepare the project report and handover the same to the complainant within 15 days from the receipt of payment of Rs.5,000/- from him. The OP No.5 to 7 have failed to show on record the preparation and delivery of project report within the agreed stipulated period and further have failed to refund the received amount despite having received the legal notice dated 05.06.2014 Ex.C-4. Therefore, by their acts of omissions the OP No.5 to 7 have indulged into unfair trade practice.
13. Therefore, all the questions raised above are answered in favour of the complainant and proved against the OPs by the complainant by way of documents Ex.C-1 to C-5. The deficiency in service and unfair trade practice is writ large on the part of the OPs as they have collected the agreed amount from the complainant but failed to discharge their obligation arising out of the contract. Thus, the complaint deserves to be allowed and the complainant deserves to be compensated.
14. The perusal of memo of parties of the complaint shows that the complainant has filed the present complaint against OP No.1 M/s. Pioneer Flori Tech. Pvt. Ltd. through its Directors and then further made individual Director as party from OP No.2 to 4. Further OP No.5 M/s. City Garden Center and Nursery H/o Verka Milk Plant through its director and then further made OP No.6 and 7 being the Directors of OP No.5 as separate OPs. Throughout the complaint, the complainant has alleged having signed the agreement Ex.C-2 by OP No.1 and 5 through its Director Shri Ajaypal Singh Gill OP No.2/OP No.6 and has also proved the payment of Rs.8,40,000/- and Rs.5,000/- to OP No.1 and 5 through OP No.2/OP No.6 who has issued the receipt of the said payment in favour of the complainant. Therefore, it will be appropriate to allow the complaint against OP No.1 and 5 through its Director Shri Ajaypal Singh Gill as other Directors impleaded in the array of OPs have neither signed the agreement nor issued any receipt in token of payment made by the complainant. OP No.1 and OP No.5 being the company are liable for acts of omission and commission of all its Directors. Hence the complaint against OP No.1 and 5 through its Director Shri Ajaypal Singh, OP No.2/OP No.6 is allowed and qua OP No.3, 4 and 7 is dismissed.
15. In view of above discussion, the complaint is hereby allowed against OP No.1 and 5 through its Director Shri Ajaypal Singh Gill OP No.2/OP No.6 with the following directions;
(a) to refund to the complainant the amount of Rs.8,45,000/- (Rs. Eight lacs forty five thousand only) alongwith interest @ 12% per annum from the date of receipt i.e. 07.08.2013 till actual payment.
(b) to pay to the complainant a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
January 05, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
