DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No. 95 of 2018

                                                Date of institution:  17.01.2018                                             Date of decision   :  05.02.2019

1.     Ashok Kumar son of Shri Roop Lal,

2.     Ramla Jindal wife of Shri Ashok Kumar

residents of  House No.214, Pine Homes, Dhakoli, Zirakpur, Mohali, Punjab.

…….Complainants

Versus

1.     Punjab Empires Pvt. Ltd., Registered Office, 2022, Sector 64, Mohali, Punjab through its Director Shri Darshan Singh.

2.     Shri Randhir Sood, Director, Punjab Empires Pvt. Ltd., R/o Kothi No.1309, Sector 15-B, Chandigarh.

3.     Shri Randhir Sood, Director Punjab Empires Pvt. Ltd., r/o Kothi No.1, Near Atta Chakki Near Tobha, Village Kansal, District Mohali.

4.     Shri Darshan Singh, Director, Punjab Empires Pvt. Ltd., Registered Office, 2022, Sector 64, Mohali, Punjab.

5.     Shri Satinder Kumar Singh son of Shri B.N. Singh, c/o Booth No.2, Sector 47-C, Chandigarh authorised signatory of Punjab Empires Pvt. Ltd.

6.     Shri Vinod Kumar, Accountant of Punjab Empires Pvt. Ltd., C/o H.No.1309, Sector 15-B, Chandigarh.

7.     Smt. Sangeeta Sood wife of Shri Randhir Sood, r/o H.No.889, (First Kothi), Village Kansal, District Mohali.

                                                            ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:     Complainant No.1 in person with Counsel Shri Rajesh Gupta.

                OP No.1,2,4,5,6,7 Ex-parte.

                Claim against OP No.3 given up.

Order by :-  Shri G.K. Dhir, President.

Order

                 Rs.12,22,000/- was paid by complainants to OPs on 01.07.2013 for purchase of plot No.62 having area of 138.88 sq. yards situate in Gulmohar Valley, Lalru. Representations in individual capacity were made by OPs, despite the fact that project in which plot situate is not having requisite permissions/approvals. OPs got registered sale deed of the allotted plot executed on 01.07.2013 at office of Sub Registrar, Dera Bassi in connivance with certain officials of Revenue Department. In fact no plot No.62 ever existed in the alleged Gulmohar Valley, Lalru and as such OPs sold a non existing plot to complainants, for usurping the hard earned money. That act of OPs amounts to unfair trade practice and violation of various civil and criminal laws. When complainants confronted OPs with that situation, then OPs agreed to refund amount of Rs.12,22,000/- with interest @ 18%  and other expenses borne by complainants from time to time. However, on 11.05.2015 OPs prevailed upon complainants to sign an agreement of sale of above said plot back in favour of the company. Sale consideration of Rs.12,22,000/- was shown in the said sale agreement. OPs assured complainants of making other payments relating to registration expenses and interest. In fact proper way for entering into settlement was to cancel the earlier sale deed by undertaking to refund/reimburse the paid amount with interest. OPs did not abide by terms of agreement dated 11.05.2015, vide which they agreed for refund of full principal amount of Rs.12,22,000/- because cheque No.984109 dated 14.05.2015 of amount of Rs.1,00,000/- was issued and thereafter no other payment made untill 28.03.2016. On repeated requests made by complainants to OPs during period from 11.12.2015 to 29.03.2016, OPs gave another cheque of Rs.1.00 lakh dated 29.03.2016 by assuring that balance payment of Rs.10,22,000/- will be made within three months i.e. upto 29.06.2016. OPs got various receipts signed from complainants showing paid amounts as sale consideration, despite the fact that those payments were made towards refund. When complainants objected, then OPs promised to issue corrected receipts later. OPs kept on delaying refund payment. Refund payment amount was made only on 17.04.2017 as is obvious from perusal of sale deed dated 17.04.2017 and the various issued receipts. In that sale deed total sale consideration mentioned as Rs.2,22,500/- instead of actual sale consideration of Rs.12,22,000/-. Various reminders including letters dated 19.12.2016, 05.01.2017, 01.02.2017, 20.02.2017, 09.03.2017, 24.03.2017, 10.04.2017, 12.06.2017, 20.06.2017 and 07.07.2017 were sent to OPs which were received, but no reply was sent by OPs. Contents of some of letters are reproduced in the complaint. By claiming that plot No.62 does not exist it is claimed that OPs committed fraud with complainant. Through these letters, it is also claimed that after considering all the received payments untill 17.04.2017 still balance amount of registration expenditure of sale deed  dated 01.07.2013 and due interest on the entire amount of Rs.12,22,000/- is payable by OPs to complainant. Moreover, through these writings, it is sought to be projected as if on the receipts prepared by Accountant Shri Vinod Kumar, word “refund” of amount has not been mentioned. Despite sending of legal notice, OPs have not returned due amounts and as such by pleading deficiency in service, prayer made for directing OPs to pay balance amount of Rs.11.00 lakhs towards settlement of all issues including interest due on amounts paid to Ops for the repeated delay in refund/reimbursement. Litigation expenses of Rs.55,000/- more claimed.

2.             Claim against OP No.3 was given up by counsel for complainant by suffering statement on 19.03.2018. Remaining OPs are ex-parte in this case.

3.       Counsel for complainant tendered in evidence affidavit Ex.CW-1/1 of complainant Ashok Kumar alongwith documents Ex.C-1 to Ex.C-20 and then closed evidence. 

4.             Written arguments not submitted. Oral arguments heard and records gone through.

5.             It is vehemently contended by counsel for complainants that fraud has been committed with complainants by OPs by knowing fully well that plot No.62 referred above do not exist, but despite that sale deed Ex.C-1 was executed in favour of complainants on 01.07.2013. However, after going through Ex.C-1 it is made out that this sale deed is registered one in office of Sub Registrar, Dera Bassi. This sale deed was executed by OP No.1 through its authorised representative i.e. OP No.5 in favour of both the complainants. Sale consideration amount of this plot No.62 is mentioned as Rs.4,17,750/- in this sale deed. So this sale deed Ex.C-1 does not reflect as if amount of Rs.12,22,000/- paid by complainants to OPs uptill the date of execution or registration of this sale deed on 01.07.2013. Authorization for execution of this sale deed in favour of complainants given to OP No.5 through authorization letter Ex.C-2. Sh. Darshan Singh, Director i.e. OP No.4 through extract of resolution, copy of which is produced on record as Ex.C-3 was authorised to execute documents/applications. It was after sale of this plot in favour of complainants that subsequent agreement of sale Ex.C-4 was executed by present complainants in favour of OP No.2, Director of OP No.1. In this agreement of sale, it is mentioned as if plot No.62 of size of 25’x 50’ in Gulmohar Valley, Lalru will be sold by present complainants in favour of OP No.1 through OP No.3 for consideration of Rs.12,22,000/-. Payment of Rs.1.00 lakh through cheque No.981409 dated 14.05.2015 is specifically mentioned in this agreement of sale Ex.C-4.  This agreement of sale is signed by complainants as well as by OP No.3 as Director of OP No.1. It is contended that as OPs agreed to get plot No.62 re-transferred in their name by executing an agreement of sale Ex.C-4, and as such it is established through contents of Ex.C-4 itself as if amount of Rs.12,22,000/- actually was paid by complainants to OPs at the time of execution and registration of sale deed Ex.C-1.  This submission of counsel for complainant has some force because if OPs earlier received Rs.12,22,000/- from complainants before or at the time of execution of sale deed Ex.C-1, only then they would have agreed for refund of Rs.12,22,000/- through agreement of sale Ex.C-4. Even if contents of Ex.C-4 establishes that OPs agreed to re-purchase Plot No.62 for Rs.12,22,000/-, despite that sale deed Ex.C-9 executed on 17.04.2017 do not at all establish that plot No.62  was sold by complainants in favour of OP No.1 through OP No.7 Sangeeta Sood for amount of Rs.12,22,000/- only. This Sangeeta Sood, OP No.7 is wife of OP No.3 Randhir Sood, who earlier executed agreement of sale Ex.C-4 on behalf of OPs in favour of complainants. So certainly there is a time gap of about one year and 11 months in execution of agreement of sale Ex.C-4 and the subsequent sale deed Ex.C-9 dated 17.04.2017, where through present complainants sold same plot No.62 in favour of OP No.1.

6.             Complainants have produced on record receipts Ex.C-5 to Ex.C-8 for establishing as if OP No.1 through OP No.3 paid Rs.1.00 lakh to complainant Ashok Kumar on 29.03.2016, Rs.50,000/- on 02.09.2016, Rs.50,000/- on 30.09.2016, and Rs.5.00 lakhs on 14.11.2016. However, mention of these receipts not at all incorporated in the sale deed Ex.C-9, despite the fact that above referred payment of Rs.7.00 lakhs received by complainant No.1 from representative/director of OP No.1 during period from 29.03.2016 to 14.11.2016. What transpired between 14.11.2016 and date of execution of sale deed dated 17.04.2017 (Ex.C-9), qua that contents of the complaint are silent, despite the fact that in Para No.10 of the complaint, it is mentioned that complete refund of amount took place on 17.04.2017 i.e. when this sale deed Ex.C-9 executed by complainants in favour of OP No.1 for re-sale of plot No.62, which is alleged to be non existing. Dates of refund of balance amount not at all mentioned in the complaint or in the submitted affidavit of complainant No.1. If Rs.7.00 lakhs were received through receipts Ex.C-5 to C-8, but Rs.1.00 lakh more was received by complainants through agreement Ex.C-4, then it is made out as if Rs.8.00 lakhs out of alleged refund amount of Rs.12,22,000/- alone paid by OPs to complainants before execution of sale deed Ex.C-9. Through sale deed Ex.C-9, it is claimed as if sale deed executed for sale consideration of Rs.2,22,500/-. Where the amount of Rs.99,500/- has gone, qua that contents of complaint or of the submitted affidavit or of sale deed Ex.C-9 absolutely are silent. In view of missing of this link, it has to be held that complainants not able to establish by convincing evidence that actual refund of entire amount of Rs.12,22,000/- had taken place after issue of notices Ex.C-10 to Ex.C-19. Even in the legal notice Ex.C-20 sent by complainants to OPs, mention of dates of refund with the amounts refunded not specifically made and as such just on the strength of the produced documents alone, it cannot be held in these summary proceedings that entire amount of Rs.12,22,000/- has been refunded by OPs to complainants. Question of refund of this amount of Rs.12,22,000/- by OPs to complainants does not arise, more so when sale deed Ex.C-1 makes mention of sale consideration of Rs.4,17,750/- only. Even if really complainants paid Rs.12,22,000/- to OPs at the time of getting sale deed Ex.C-1 executed and registered, then why they kept mum for claiming that the sale consideration amount recorded in Ex.C-1 is not correct. As sale deed Ex.C-9 even does not disclose about re-sale of plot No.62 by complainants in favour of OPs for consideration of Rs.12,22,000/- and as such virtually intricate questions of law and facts are involved as to whether recitals contained in Ex.C-9 should prevail or not.

7.             As sale deed Ex.C-9 is contract for sale of plot No.62 by complainants in favour of OP No.1 through OP No.7, and as such terms of it to prevail. In Ex.C-9 itself it has been specifically mentioned that no amount remains due from buyer to the seller after execution and registration of sale deed. Further it is specified in this sale deed Ex.C-9 itself that contents of sale deed are correct and nothing has been kept concealed. When such are the recitals of sale deed Ex.C-9, that it has to be taken as if contents of this sale deed are correct, when all sorts of disputes between complainants and OPs have been settled on execution of this sale deed Ex.C-9.        

8.             Section 48 of Registration Act, 1908 provides that the documents like sale deeds duly registered under the Registration Act relating to any property movable or immovable, to take effect from the date of registration of sale deed. So virtually on execution of sale deed Ex.C-9 regarding re-sale of plot No.62, it became effective w.e.f. 17.04.2017 itself.

9.             Section 91 of Indian Evidence Act, 1872 provides that when the terms of a contract or of a grant or of any other disposition of property, have been reduced to the form of a document, then no evidence in variance to the terms of documents can be permitted to be led except in the circumstances mentioned in Section 92 of Indian Evidence Act. Those circumstances mentioned in Section 92 of Indian Evidence Act relate to proof of the facts rendering the executed document as invalid on account of fraud, intimidation, illegality or want of due execution or want of capacity of any of the contracting parties. Even existence of separate oral agreement may be proved provided the document is silent with respect to that oral agreement. As contents of documents Ex.C-9, being registered sale deed, has to be taken on its face value and as such in case complainants want to prove recitals regarding sale consideration amount mentioned in Ex.C-9 as fraud or result of intimidation etc., then remedy available with them is to approach civil court. As complainants seeking refund through this complaint by alleging commission of fraud on the part of OPs and as such they are required to lead elaborate evidence to prove this allegation of fraud or of misrepresentation or like that. Proceedings before Consumer Fora are summary in nature in which intricate questions of law and facts cannot be decided and as such complainants, if advised, may approach civil court for availing due remedy. As and when allegations of fraud, forgery or of misrepresentation leveled, then complainant should be directed to approach civil court is the crux of law laid down in P.N. Khanna Vs. Bank of India, II (2015) CPJ 54 (NC);  Bright Transport Company Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC): Oriental Insurance Co. Ltd. Vs. Munnimaesh Patel IV (2006) CPJ 1 (SC); Reliance Industries Ltd. Vs. United India Insurance Co. Ltd., I (1998) CPJ 13 (NC); M/s. Singhal Swaroop Ispat Ltd. Vs. United Commercial Bank, III (1992) CPJ 50 (NC); Sagli Ram Vs. General Manager United India Insurance Co. Ltd. II (1994) CPJ 444;  Harbans & Co. Vs. State Bank of India, II (1994) CPJ 456; Jayantilal Keshavlal Chauhan Vs. The National Insurance Co. Ltd. 1994(1) CPR 396 and Ranju Devi Vs. Branch Manager, State Bank of India 2015(4) CLT 131 (JHK). Ratio of these cases fully applicable to the facts of the present case and as such complaint merits dismissal and is hereby dismissed.

10.            As a sequel of above discussion, complaint dismissed with observations that the complainant, if advised may avail remedy before the appropriate Court.  Certified copies of the order be supplied to the complainant as per rules.  File be indexed and consigned to record room.

Announced

February 05, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member