Chandigarh

DF-II

RBT/CC/299/2024

Rehana Begum - Complainant(s)

Versus

Rajinder Singh - Opp.Party(s)

04 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	RBT CC/299/2024
Date of Institution	:	26/07/2024
Date of Decision	:	04/10/2024

       

                                       

              

 

 

 

Mrs. Rehana Begum wife of Mr. Sajid Khan, resident of H.No.4832, Maloya Colony, U.T., Chandigarh, Pin Code 160025.

                                ...  Complainant

V E R S U S

1. Mr. Rajinder Singh, having his office at near Office Panchayat Market, Maloya Complex, Chandigarh & Residence at H.No.4578, Maloya Colony, UT, Chandigarh, Pin Code 160025.
2. Mr. Sikandar Pal, having his office at near Office Panchayat Market, Maloya Complex, Chandigarh & Residence at H.No.4578, Maloya Colony, UT, Chandigarh, Pin Code 160025.

…. Opposite Parties

 

BEFORE:
	SHRI AMRINDER SINGH SIDHU	PRESIDENT
	SHRI B.M.SHARMA	MEMBER
ARGUED BY:
	M.Shahnawaz, Counsel for complainant alongwith Ms. Aanchal & M. Sartaj Khan, Advocate
	Sh. Gurcharan Singh Kaushal, Counsel for OPs alongwith OP-1 in person.

 

       

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1.        The complainant has filed the present consumer complaint alleging that she had availed the services of the OPs for booking and for the purchase of residential house No.6097, Category EWS, Maloya Colony, UT, Chandigarh (hereinafter referred to as “house in question”) by paying booking amount of ₹2.00 lacs vide cheque on 25.2.2023 and receipt cum agreement (Annexure C-1) was also executed qua the same. However, OPs deliberately misrepresented facts in the agreement with the complainant by assuring her that the aforesaid house is transferable and that they would facilitate the conveyance deed/transfer deed in her name and clause 5 was inserted in the agreement with respect to the said facts.  It is alleged that the house in question was allotted by the Chandigarh Housing Board under the EWS Rehabilitation Scheme and when the complainant enquired about its title from the Chandigarh Housing Board, she came to know that the same cannot be transferred/resold by way of GPA and the entire transaction is void ab initio. The complainant had proceeded to purchase the aforesaid house bonafidely by agreeing to pay total sale price of ₹16.00 lacs to the OPs out of which amount of ₹2.00 lacs was paid as booking amount on 25.2.2023, ₹1.00 lacs was paid on 4.3.2023 in cash and another amount of ₹5.00 lacs was paid by cheque dated 17.4.2023 and in this manner she had paid total amount of ₹8.00 lacs to the OPs as part of sale consideration and accordingly supplementary agreement to sell dated 20.4.2023 (Annexure C-2) was also executed between the parties and copy of statement of account is Annexure C-3.  Later on, complainant came to know that, in fact, OPs had committed fraud with her as they had received ₹8.00 lacs from her despite of the fact that they were not legitimate owners of the subject house as the original allottee had executed another agreement to sell dated 17.3.2023 with OP-2 to whom he had also given his Power of Attorney and executed Will in his favour with respect to the aforesaid house.  Hence, OPs have cheated and played fraud upon the complainant, knowing fully well that they were not owners of the house in question and had accepted an amount of ₹8.00 lacs by agreeing to sell the same to the complainant for total consideration of ₹16.00 lacs. Upon this, complainant immediately reported the matter to the Chandigarh Housing Board vide complaint (Annexure C-5) and thereafter had also filed criminal complaint (Annexure C-6 Colly.) against the OPs with the Police Station, Maloya. Alleging that the aforesaid acts of omission and commission on the part of OPs amount to deficiency in service and unfair trade practice, complainant has filed the instant complaint seeking refund of the amount paid alongwith interest, compensation and litigation expenses.
2.        In their written version OPs, inter alia, took various preliminary objections viz. maintainability, concealment of facts, jurisdiction, non-joinder of necessary parties and also that the complainant is not a consumer.  It is alleged that, in fact, OP-2 is the owner of house in question in pursuance to agreement to sell and Special Power of Attorney executed by its allottee and further admitted that OP-2 has already executed agreement to sell dated 25.2.2023 in favour of the complainant from whom he had received an amount of ₹2.00 lacs as booking amount out of the total sale consideration of ₹16.00 lacs. It is further admitted that later on the complainant had also paid an amount of ₹1.00 lacs and ₹5.00 lacs to OP-2 and in this manner has paid total amount of ₹8.00 lacs out of total sale consideration of ₹16.00 lacs.  It is further alleged that, in fact, OP-2 called the complainant several times for execution of the full and final agreement to sell, GPA/SPA, Will affidavit etc. by coming to the District Court Complex, Sector 43, Chandigarh but she did not come.  Lastly, OP-2 waited for the complainant on 20.6.2023 right from 10:00 a.m. to 5:00 p.m. and he had also marked his presence on the stamp paper duly notarized (Annexure R-6) but again she did not come. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs prayed for dismissal of the complaint.
3.        The parties filed their respective affidavits and documents in support of their case.
4.        In replication, complainant controverted the stand of the OPs and reiterated her own.
5.        We have heard the learned Counsel for the parties and have gone through the documents on record.
6.        The main question involved in the present consumer complaint is whether the house in question can be legally transferred by way of conveyance deed/transfer deed in favour of the purchaser i.e. the complainant or not?

              In order to find out answer to this question, the following facts and circumstances are necessary to be discussed.

7.        It is observed from the record that the house in question was allotted by the Chandigarh Housing Board under EWS Rehabilitation Scheme and the same cannot be transferred/re-sold by way of General Power of Attorney.  It is thus clear that the OPs had agreed to sell the house in question to the complainant which cannot be legally transferred in her name by way of conveyance deed/ transfer deed in view of the restriction imposed by the Chandigarh Housing Board under the Economically Weaker Section Rehabilitation Scheme.  So the execution of the agreement to sell itself by the OPs for transfer/sale of the house in question in favour of the complainant is per se illegal and amounts to unfair trade practice on their part.
8.        It is further observed from the record that the total sale price of the house in question was fixed as ₹16.00 lacs out of which admittedly the complainant had paid ₹8.00 lacs to the OPs as part payment.  Hence, it is clear that the OPs had wrongly induced the complainant to make part payment of ₹8.00 lacs by misrepresenting that the house in question can be sold by way of conveyance deed/transfer deed in her name.
9.        So far as the plea of the OPs that the complainant had placed on record forged copy of the agreement (Annexure C-1) is concerned, the same is totally ill-founded and does not hold any ground in view of the fact that we have already held hereinbefore that the execution of the agreement itself by the OPs was illegal.
10.        Keeping in view the aforementioned facts and circumstances, we are of the considered view that the law of equity and substantial justice requires that the present consumer complaint must succeed.
11.         In   view of the above discussion, the present consumer complaint succeeds, the same is accordingly partly allowed and the OPs are directed to refund the total amount of ₹8.00 lacs to the complainant alongwith interest @10% per annum from the respective date(s) of receipt from the complainant till the date of actual realization. 
12.        This order be complied with by the OPs within 60 days from the date of receipt of its certified copy.
13.        The pending application(s) if any, stands disposed of accordingly.
14.        Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

ANNOUNCED 04/10/2024 hg	(AMRINDER SINGH SIDHU) PRESIDENT
	(B.M.SHARMA) MEMBER