1.      Heard Mr. Shail Kr. Dwivedi, Advocate, for the appellant and Mr. Jayant Kumar, Advocate and R.K. Gupta, the respondent, (In person). 

2.      The opposite party has filed above appeal from the order State Consumer Disputes Redressal Commission, Uttar Pradesh dated 06.10.2022 passed in CC/25/2019 & 06.09.2022 passed in Misc. Case No.280 of 2022, allowing the complaint with 2/3^rd majority and directing the appellant to refund Rs.45000/- with interest @9% per annum from the date of deposit till the date of refund and pay Rs.one crore, as compensation for mental agony and harassment, Rs.one lac for unfair trade practice and Rs.one lac as litigation costs within one month to the respondent; failing which, interest @12% per annum was payable on entire amount.

3.      R.K. Gupta (the respondent) filed CC/25/2019 for directing the appellant to (i) handover possession of plot booked by him and pay Rs.200000/- as delay compensation; or in alternative (ii) pay Rs.4500000/-, with prevalent rate of interest in the year 2015; (iii) pay Rs.20000/- as litigation costs; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

4.      The complainant stated that GC Construction & Development Industries Private Limited (the OP) was a company, registered under the Companies Act, 1956. The OP launched a project of township of residential plot in the name of ‘Sanjay Nagar’ at village Alinagar Khurd, near P.G.I., Lucknow, in the year 1990 and made wide publicity of it. The complainant booked a plot and paid Rs.14000/- in the year 1990 and again Rs.14000/- on 19.11.1990 and deposited Rs.50000/- towards necessary expenses of stamp duty and registration charges on 22.12.1990. The OP executed registered sale deed of the said plot thereafter and assured that the plot would be demarcated on the spot soon and possession be handed over. However, the OP failed to demarcate the plot and handover possession on the spot. After waiting for much time, the complainant gave a registered letter dated 30.06.2008 to the OP for handing over possession of the plot transferred to him. The complainant visited the office of the OP several times but the OP, gave some false assurances again and again and adopted unfair trade practice. The complainant again gave a letter dated 14.08.2012, requesting the OP to handover possession of the plot. The complainant was a bank employee and after his superannuation from service, he was committed towards getting possession of the plot for construction of his house. The complainant made a complaint to “Consumer Core Centre” against the delaying attitude of the OP in handing over possession. The present cost of the plot was Rs.45/- lacs. Due to delay in handing over possession of the plot, the complainant suffered lot of mental agony and harassment and construction cost of the building has also been increased. The complainant innocently believed upon the assurances of the OP, who throughout misled him. The complainant gave a legal notice to the OP dated 30.12.2018 for handing over possession of the plot. In spite of service of the notice, the OP failed to handover possession. The complainant was a senior citizen and for causing delay in handing over possession, he was entitled to compensation of Rs.200000/-. In the event, the OP failed to provide possession, it is liable to pay Rs.45/- lacs with interest prevalent in the year 2015. On these allegations, this complaint was filed on 21.01.2019.       

5.      The appellant filed its written reply and contested the complaint. The appellant stated that GC Construction & Development Industries Private Limited (the OP) was a company, registered under the Companies Act, 1956. “Jangarna Sahkari Avas Samiti Limited, Narang Building, Hazratganj, Lucknow” was a registered Co-operative Housing Society, formed with an object to provide residential plots to its members at village Alinagar Khurd, pargana Bijnore, district Lucknow. “Jangarna Sahkari Avas Samiti Limited” was an independent legal entity, separate to the OP. At the time of booking the plot by the complainant, Ajay Sinha was Secretary of the society, who was also a Director of the OP. Ajay Sinha, in capacity of the Secretary of the said society collected money from the complainant and other allottees. There is no privity of contract between the complainant and the OP as such the complaint is not maintainable against the OP. The OP has not received the alleged letter dated 30.06.2018. Circle rate of the land at village Alinagar Khurd is at present Rs.3300/- per meter and market value of a plot of the size of 3200 sq.ft. is Rs.981024/-. Market value of the said plot does not exceed Rs.20/- lacs, as such, the complaint is below the pecuniary limits of the State Commission. The complaint is liable to be dismissed.

6.      The complainant filed an application for impleadment of “Jangarna Sahkari Avas Samiti Limited, Narang Building, Hazratganj, Lucknow” as opposite party in the complaint. The OP filed an objection to this application, stating that in the sale deed dated 25.06.1991, total consideration of Rs.24000/- is mentioned. The complainant allegedly paid total Rs.50000/-, while development charges of Rs.54000/- was also payable. The complaint is falling within pecuniary limit of District Forum.

7.      State Commission appointed Joint Local Commissioner, vide order dated 29.06.2022, who after spot inspection, submitted their report dated 13.07.2022, stating that Jangarna Sahkari Avas Samiti Limited, Narang Building, Hazratganj, Lucknow owned about 80 bighas land at village Alinagar Khurd. Jangarna Sahkari Avas Samiti Limited booked 18 plots in this land to different allottes, however, due to failure of the scheme all other allottees except R.K. Gupta took refund. Entire land is still undeveloped on the spot. Both the parties filed Affidavit of Evidence and documentary evidence. After hearing the parties, President of State Commission, by the impugned judgment dated 06.09.2022, held that payment of Rs.45000/- by the complainant, in the year 1990 has not been disputed by the OP. The prices of land has increased more than 100 times since 1990. Price of the gold has been increased 18 times since 1990. The OP has adopted ‘unfair trade practice’ in collecting money from different allottee and after expiry of some year refunded it, Due to unreasonable delay, a class-III/Class-IV employee of the bank had to go with mental agony and harassment for a long period of 32 years. On these finding the complaint was allowed and order as stated above was passed. Due to difference of opinion between President and the Member, the case was listed before third Member as per Section 47 of the Consumer Protection Act, 2019 (Registered as Misc. Case No.280 of 2022). Third Member, vide his judgment dated 06.10.2022, concurred with the judgement of President. Hence the OP has filed this appeal.

8.      We have considered the arguments of the counsel for the appellant and examined the record. Majority view of State Commission held that the complainant had paid Rs.45000/- to the appellant. As per receipts issued by the appellant, Rs.14000/- was paid on 03.11.1990, Rs.4000/- was paid on 22.12.1990. In the sale deed dated 22.06.1991, Ajay Kumar, Secretary of Jangarna Sahkari Avas Samiti Limited, acknowledged receipt of Rs.24000/-. In the absence of specific denial, the State Commission has accepted the oral evidence. We do not find any illegality in it.          

9.      Sale deed dated 22.06.1991 is executed on the later head of Jangarna Sahkari Avas Samiti Limited. It is not a registered document. In this deed, it has been mentioned that development charges at the rate of Rs.18.35 per sq.ft. as assessed for the time being was also payable. Jangarna Sahkari Avas Samiti Limited owned 40 bighas of land at village Alinagar Khurd, while on 18 plots could be booked by it. The project situated in rural area as such development of the township required huge vestment of money. In the absence of sufficient buyers, the project failed. According to the complainant, after sale deed dated 22.06.1991, he gave registered letter dated 30.08.2008, for the first time. He remained silent for 17 years and waited in the hope of development of the project. Even after registered letter dated 30.06.2008, he filed this complaint on 21.01.2019. The complaint has no explanation of the laches on his part. The complainant cannot reap crop of his own latches.         

10.    Section 56 of the Contract Act, 1872 provides that a contract to do an act which, after the contract is made, becomes impossible, or, by reason of some even which the promisor could not prevent, unlawful, becomes void, when the act becomes impossible or unlawful. In the present case, the project situated in rural area as such development of the township required huge vestment of money. In the absence of sufficient buyers, the project failed. There was no deliberate harassment of the complainant. Attitude of the complainant clearly established that he had voluntarily waited for a long time in the hope of development. He cannot claim any compensation for mental agony and harassment At the most, he can only claim for refund of money. The compensation has to be awarded on the principle as provided under Section 73 of the Contract Act, 1872. A three member Bench of Supreme Court in Experion Developer Private Limited Vs. Sushma Ashok Shiroor, 2022 SCC OnLine SC 416, held that in case of refund, interest @9% per annum from the date of deposit till the date of refund is just and fair compensation, which amounts to compensatory and restitutory both. Supreme Court in DLF Homes Panchkula (P) Limited Vs. D.S. Dhanda, (2020) 16 SCC 318, held that compensation in multiple head cannot be awarded. State Commission has illegally ignored the principles laid down by Supreme Court, while passing the impugned order.

11.    State Commission held that the OP has committed unfair trade practice. Unfair trade practice has been defined under Section 2(1)(r) of the Consumer Protection Act, 1986, which is quoted below:-

          "Unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:—

(1) the practice of making any statement, whether orally or in writing or by visible representation which,—

(i) falsely represents that the goods are of a particular standard quality, quantity, grade, composition, style or model;

(ii) falsely represents that the services are of a particular standard, quality or grade;

(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;

 (iv) represents that the goods or services have sponsorship, approval, performance, characteristics, accessories, uses or benefits which such goods or services do not have;

(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;

(vi) makes a false or misleading representation concerning the need for, or the usefulness of, any goods or services;

(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof : Provided that where a defense is raised to the effect that such warranty or guarantee is based on adequate or proper test, the burden of proof of such defense shall lie on the person raising such defense;

(viii) makes to the public a representation in a form that purports to be—

(i) a warranty or guarantee of a product or of any goods or services; or

(ii) a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result,

if such purported warranty or guarantee or promise is materially misleading or if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;

(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf the representation is made;

(x) Gives false or misleading facts disparaging the goods, services or trade of another person.

Explanation.—For the purposes of clause (1), a statement that is—

(a) expressed on an article offered or displayed for sale, or on its wrapper or container; or

(b) expressed on anything attached to, inserted in, or accompanying, an article offered or displayed for sale, or on anything on which the article is mounted for display or sale; or

(c) contained in or on anything that is sold, sent, delivered, transmitted or in any other manner whatsoever made available to a member of the public,

shall be deemed to be a statement made to the public by, and only by, the person who had caused the statement to be so expressed, made or contained;

(2) Permits the publication of any advertisement whether in any newspaper or otherwise, for the sale or supply at a bargain price, of goods or services that are not intended to be offered for sale or supply at the bargain price, or for a period that is, and in quantities that are, reasonable, having regard to the nature of the market in which the business is carried on, the nature and size of business, and the nature of the advertisement.

Explanation.—For the purposes of clause (2), "bargaining price" means—

(a) a price that is stated in any advertisement to be a bargain price, by reference to an ordinary price or otherwise, or

(b) a price that a person who reads, hears or sees the advertisement, would reasonably understand to be a bargain price having regard to the prices at which the product advertised or like products are ordinarily sold;

(3) permits—

(a) the offering of gifts, prizes or other items with the intention of not providing them as offered or creating impression that something is being given or offered free of charge when it is fully or partly covered by the amount charged in the transaction as a whole;

(b) the conduct of any contest, lottery, game of chance or skill, for the purpose of promoting, directly or indirectly, the sale, use or supply of any product or any business interest;

(4) permits the sale or supply of goods intended to be used, or are of a kind likely to be used, by consumers, knowing or having reason to believe that the goods do not comply with the standards prescribed by competent authority relating to performance, composition, contents, design, constructions, finishing or packaging as are necessary to prevent or reduce the risk of injury to the person using the goods;

(5) Permits the hoarding or destruction of goods, or refuses to sell the goods or to make them available for sale or to provide any service, if such hoarding or destruction or refusal raises or tends to raise or is intended to raise, the cost of those or other similar goods or services.]”

          None of the ingredients of unfair trade practice is brought on record in the present case. Finding in this respect is also based upon no evidence.

ORDER

In view of aforesaid discussions, the appeal is allowed. The order of State Commission dated 06.10.2022 passed in CC/25/2019 & 06.09.2022 passed in Misc. Case No.280 of 2022, allowing the complaint with 2/3^rd majority is modified. The minority view is set aside. The appellant is directed to refund Rs.45000/- with interest @9% per annum from the date of deposit till the date of refund to the respondent, within a period of two months from the date of this judgment.