Punjab

StateCommission

CC/142/2017

Narinder Singh - Complainant(s)

Versus

R.K.M. Housing Ltd. - Opp.Party(s)

Kulwinder Singh

08 Jan 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No. 142 of 2017

 

                                                          Date of Institution   :  09.03.2017         

                                                            Order Reserved on : 04.01.2018

                                                          Date of Decision     : 08.01.2018

 

Narinder Singh s/o Mohinder Singh r/o 24, Narnauli Colony, Rajpura (Pb) through special power of attorney holder Sh. Mohinder Singh s/o Sh. Kesar Singh r/o 24, Narnauli Colony Rajpura, Punjab

                                                                                                                                                                                                                                                                                                          ….Complainant

                                      Versus

 

RKM Housing Ltd., SCO 673, 2nd Floor, Sector 70, Mohali through its Director/Incharge/Manager

 

                                                                             Opposite party

 

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainant         :  Sh. Raghubir Singh, & Sh. Kulwinder    Singh Advocates

          For opposite party            :  Sh. J.P.S. Sidhu, Advocate

 

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant through his special  power of attorney holder Sh. Mohinder Singh has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OP on the averments that he booked one flat in the project of OP at Sector 112 SAS Nagar Mohali under the name and style of RKM Housing Ltd, vide application form dated 16.11.2011 for his own use. He paid Rs.1 lac, vide cheque no. 319071 dated 16.11.2011 drawn on Oriental Bank of Commerce as booking amount of the flat and OP issued receipt no. 2239 dated 16.11.2011 for this amount. He paid Rs.8,32,000/-, vide cheque no. 482869 dated 20.12.2011 (Rs.3,20,000/- and Rs.5,00,000) and OP issued receipt no. 2048 dated 20.12.2011 for Rs.8,20,000/- to him. Memorandum of understanding was entered into between parties on 03.01.2012 for independent flat with super area of 1700 sq. ft ground floor situated at Sector 112 SAS Nagar Mohali. The total sale consideration of the flat was Rs.46,60,000/-. The complainant further deposited Rs. 9,32,000/- with OP, vide receipt no. 2073 dated 08.05.2012 issued by OP in his favour. The complainant has deposited the amount of Rs. 18,52,000/- with OP against booking of the above flat. OP failed to start the development work for long period and even failed to get the approval from the competent authority for development of this project, despite the receipt of substantial amounts of Rs. 18,52,000/- from the complainant. The complainant approached OPs asking them to show the approvals of the project to him, but to no effect. The possession was to be delivered to complainant within 42 months from the date of memorandum of understanding, but OP failed to give the possession to him thereof. As per clause 7 of memorandum of understanding, in case the  future project is abandoned or is not undertaken due to any unwanted or statutory objections in that eventuality, the deposited amount has to be refunded with interest @ 10% p.a. As per Clause 8 of memorandum of understanding, a separate agreement was to be executed in the shape of regular agreement along with payment plan and in case the contributor opts not to go in for purchase/booking of flat/independent floor, he would be at liberty to reclaim the amount deposited by him with interest @ 10% p.a. The complainant requested OP to ascertain the progress of flat, vide email dated 30.11.2016, but to no effect.  He again approached OP, vide email dated 02.12.2016 to ascertain the status of the flat, but of no use. The complainant approached OP for cancellation of the  said flat and for refund of the  amount deposited by him. He also served a legal notice dated 16.01.2017 to OP in this regard. The OP was not having the requisite approvals from the statutory authorities and possession was not likely to be delivered to complainant. The complainant has, thus, filed this complaint through his special power of attorney holder for refund of the deposited amount of Rs. 18,52,000/- with interest @ 18% and compensation of Rs. 10 lac for mental harassment and Rs.75,000/- as legal charges.

2.                Upon notice, OP appeared and filed written reply and contested the  complaint of the complainant by raising preliminary objections that complainant has been permanent resident of Australia and he agreed to purchase one flat for investment purposes only and not for residential purposes and hence he is not a consumer. The complainant booked one flat on part payment of      Rs.10 lac and further paid Rs.3,20,000/- and Rs. 5 lac as per payment plan, but thereafter stopped to pay the installments despite memorandum of understanding in this regard. Letter was issued to him to pay the balance amount, as per payment schedule but to no effect. Now, after more than five years from the payment of last installment, the complainant has filed this complaint, which is barred by time. The memorandum of understanding as executed between the parties clearly stipulated that scheme has been dependent on the contribution of the contributors and entire project can be delayed by not making payment of the installments. OP had got all statutory approvals and had given possession of residential plots/flats to majority of allottees, who had made timely payments. As per Clause 8 of memorandum of understanding, timely payment of installments was sine qua non for development of the project. In case installment was delayed for a period of one month, the same would attract interest @ 12% p.a. On merits, it was admitted that complainant booked flat, vide application dated 16.11.2011, but it was booked by him for investment purposes, as he has been resident of Australia. The complainant violated the memorandum of understanding by not making timely payments. The complainant has to make the balance payment of installments with interest @ 12% p.a. This fact was admitted that the complainant has paid Rs. 9,32,000/- to OP. OP further averred that as per memorandum of understanding clause, OP was not able to deliver the possession without payment of installments of the amounts. OP prayed for dismissal of the complaint.

3.                The complainant tendered in evidence the affidavit of Mohinder Singh attorney holder of complainant Ex.CW-1 along with copies of documents Ex.C-1 to Ex.C-14 and closed evidence. As against it; OP tendered in evidence affidavit of Sh. K.S. Walia Managing Director of RKM Housing Ltd Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-7 and closed the evidence.

4.                We have heard learned counsel for the parties at considerable length and also examined the record of the case.

5.                The first point falling for adjudication before us in this appeal is whether complainant is consumer of OP or not and hence instant complaint is maintainable before this Commission. The submission of counsel for OP is that complainant is resident of Australia and not of India and he booked the flat for sole purpose of earning profits. On the other hand, the counsel for complainant contended that complainant has specifically pleaded this fact in para no. 3 of the complaint that he booked the flat for his own use near Chandigarh. Affidavit of Mohinder Singh attorney holder of complainant Ex.C-1 is on the record, wherein it is stated that the flat has been booked for own use of the complainant near Chandigarh. There is no ban on non-resident Indian coming to India for residing here, which is the place of his birth. To refute this evidence, OP relied upon affidavit of KS Walia Managing Director of RKM Housing Limited Ex.OP-A on the record. He simply stated that complainant booked flat for investment purposes and not for residential purposes. Generally, person purchases the residential flat for his own use and not for investment purposes. The flat in question is for residential purposes and not for commercial purposes and as such on the basis of the pleadings contained in para no. 3 of the complaint and affidavit of special power of attorney holder of complainant on his behalf, we hold that complainant booked the flat for residential purposes as he wanted to reside near Chandigarh. There is no bar on the complainant to migrate to India for this purpose of permanently residing over here. A person plans his evening of life in such a manner so that he could live in a peaceful manner and there is no bar of complainant to come to India from Australia for this purpose. Consequently, flat is booked by the complainant for residential purposes and not for investment purposes, as there is cogent evidence by OP to refute the evidence of the complainant. The Apex Court examined this controversy in Laxmi Engineering Works  versus PSG Industrial Institute, reported in 1995(2) CPJ 11 and held that a person who purchases goods for his own use is consumer.  OP failed to rebut the above evidence of complainant on the record.

6.                The next submission of counsel for OP is that complainant has not entered into witness box  and hence an adverse inference has to be drawn against him. On the other hand, counsel for complainant contended that the special power of attorney holder is the father of the complainant and he is well conversant with the facts of the case and hence there is no bar in proving the facts through family member of the complainant, who has been given special power of attorney holder document by him.  The counsel for OP relied upon law laid down by Apex Court in Janki Vashdeo Bhojwani and another versus Indusind Bank Ltd and others reported in (2005) 2 Supreme Court Cases 217. The Apex Court has examined the  controversy and held that power of attorney to depose in place of principal, extends only to depositions in respect of 'acts' done by power of attorney holder in exercise of power granted by the instrument. Term 'acts' would not include deposing in place of and instead of the principal for acts done by principal and not by power of attorney holder. Similarly, power of attorney holder cannot depose for principal in respect of matters of which only principal can have personal knowledge  and in respect of which principal is liable to be cross examined. The general law is that a person has to depose  the facts before the court, which are in his personal knowledge, whereas his attorney can prove this facts, which are in his knowledge on behalf of the principal. The Apex Court has also held in Man Kaur (dead) by LRs. versus Hartar Singh Sangha reported in (2010) 10 SC 512 by elaborately dealing with this controversy in cases where the agent gives evidence on behalf of the principal. Hon'ble Supreme Court  held in this authority that an attorney holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence, which has to be relied upon. In the case in hand, the attorney holder is father of the complainant and it cannot be said that he has no personal knowledge of the  matter in this case. The attorney holder can well depose on behalf of the principal being father of the principal in view of the special circumstances that he has developed personal knowledge of the facts being family member of the principal. Consequently, we hold that complainant is proved to be consumer of OP and complaint before Consumer Forum is maintainable.

6.                Now, we touch the merits of the case. The complainant seeks refund of the deposited amount from OP on the ground that OP did not hold any statutory approvals/sanctions for development of the project, wherein the flat is located. This averment has been specifically raised in para no. 10 of the complaint by complainant that OP failed to show the approvals granted by the statutory authority to them for development of this project. Special power of attorney holder of the complainant tendered his affidavit Ex.CW-1/A in the shape of his evidence and testified that OP failed to show any approval granted by the  statutory bodies to them for development of the project. To counter this evidence, OP relied upon affidavit of Sh. K.S Walia Managing Director of RKM Housing Limited of OP who stated that OP had requisite approvals accorded by the  statutory bodies for development of the project. OP produced on record the permission for change of land user granted by Chief Town Planner Punjab Chandigarh, vide Ex.OP-5 on 26.08.2010. Memorandum of understanding was entered into on 03.01.2012, whereas OP got requisite approvals of area measuring 28.422 acres as verified by Tehsildar. Even Ex.OP-6 is permission for change of land user granted by the authorities of Chief Town Planner to OP. Ex.OP-7 is lay out plan. The submission of counsel for OP is that layout plan has also been approved by the  authority and copy of the  same is Ex.OP-7 on the file. On the basis of documents Ex.OP-5 to Ex.OP-7, we discard the contention of the complainant that OP has no approval for development of the project. 

7.                The parties are strictly governed by the terms and conditions of Ex.C-5  and clause 7 of memorandum of understanding that where the project is undertaken, abandoned by OP, then OP is liable to refund the deposited amount with 10% interest p.a. This is not a case of abandonment of project. The complainant paid amount of Rs. 9,32,000/- to OP on 08.05.2012 , vide receipt Ex.C-6. We gather, the complainant only wants to shirk from this project by not making the payment of the balance installments to OP. The complainant also failed to establish it on the record that OP has not developed the project by leading cogent evidence. The bald statement of Mohinder Singh special power of attorney holder of complainant stands rebutted on record by the counter affidavit of Managing Director of OP KS Walia. There is no photographs or other reports adduced on record by the complainant to prove that OP have not carried out any development work in the project. We find from perusal of record, the complainant only wants to opt out of this project seeking the refund of the deposited amount solely. Now, we touch Clause 8 of Memorandum of understanding, whereby a separate agreement was required to be executed by the parties. As per Clause 8 of memorandum of understanding, in case the contributor opts not to go for purchase/booking of flat/independent  floor, he shall be at liberty to reclaim the amount already contributed to him and the company will return the said amount along with simple interest @ 10% per annum, however company will be given advance notice of 60 days for refund of the said amount by contributor. The complainant served legal notice upon OP in this regard through his special power of attorney holder, vide Ex.C-11. The intention of the complainant is clear that he wants to opt out of the project by giving above notice. The complainant sent legal notice, which is sufficient compliance of 60 days advance notice by complainant to OP in this case. As per Clause 8 of memorandum of understanding, complainant is entitled to seek refund of his deposited amount with interest @ 10% since he has served legal notice upon OP in this regard, which is sufficient compliance of clause no. 8 of memorandum of understanding.

8.                As a result of our above discussion, we accept the complaint of the complainant and direct OP to refund the entire deposited amounts of complainant with interest @ 10% p.a from the date of deposit till actual payment as per Clause 8 of memorandum of understanding Ex.C-5. The parties shall bear their own costs due to special circumstances of the case.

9.                Arguments in this complaint were heard on 04.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

10.              The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

January  8,  2018                                                           

(ravi)