DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.1275 of 2018
Date of institution: 04.12.2018 Date of decision : 17.12.2019
Pawan Singh son of Late Sh. Parshotam Singh Bagga, aged about 49 years resident of House No.2625, Sector 27-C, Chandigarh (Mobile No.94177-22574).
…….Complainant
Versus
1. Dharam Pal son of Late Shri Dayal Chand, resident of village Nada, Tehsil Kharar, District Mohali (Punjab).
2nd Address:
Jai Maa Durga Property Village Sarangpur, U.T. Chandigarh Mobile No.9464450100.
2. Raovinder Singh son of Davinder Singh, resident of House No.1183, (First Floor), Sector 18-C, Chandigarh.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri K.L. Kohli, counsel for complainant.
None for OP No.1.
Complaint against OP No.2 not admitted.
Order by :- Shri G.K. Dhir, President.
Order
Complainant paid OPs Rs.5.00 lakhs in cash as advance on 08.11.2016 and thereafter Rs. 3.00 lakhs more on 23.02.2017 in consideration of getting possession of 5 marlas of land in village Parachh Had Bast No. 349, Tehsil Kharar, District Mohali. Copy of receipt in that respect is produced along with the complaint by claiming that original will be produced as and when required by the Forum. OPs agreed to hand over possession of this land by 15.02.2017 and on failure to do so to pay double of the amount i.e. Rs. 16.00 lakhs. OPs failed to render the services of giving possession by stipulated date and as such complainant had to serve notice through registered post on 10.11.2018 (delivered to OPs on 12.11.2018). OPs are property dealers and they are deficient in of service and that is why refund of the paid amount of Rs. 8 lakhs with interest @ 12% P.A from the dates of deposit till repayment along with compensation for physical and mental harassment of Rs. 50,000/- and Rs.50,000/- towards interest claimed. Rs. 50,000/- also claimed as cost of litigation.
2. Complaint was admitted against OP No.1 but the same was not admitted against OP No.2 because he was just a witness of the receipt through which payment was made.
3. In reply filed by OP No.1, it is pleaded inter alia as if complainant is not a consumer; there is no deficiency on the part of the OP No.1; complainant has not approached the Forum with clean hands because of suppression of material facts and that the matter liable to be referred to Civil Court because elaborate evidence required by way of cross examining the parties. Receipt of Rs. 8.00 lakhs in consideration of giving possession of 5 Marla of land admitted by claiming that total sale consideration payable by the complainant was Rs.14,50,000/-, being @ Rs. 2,90,000/- per marla. Admittedly agreement of sale was executed by fixing the date of execution of sale deed as 15.02.2017. However, sale deed was to be executed after receipt of full and final payment. Complainant was not ready to get the sale deed executed on fixed date of 15.02.2017 because he was not having balance amount available with him for getting the sale deed executed and registered. So at the request of the complainant date for execution of sale deed was extended. Next date for execution of sale deed was not fixed on the request of the complainant because complainant requested for confirmation of the date of execution of sale deed, whenever balance sale consideration becomes available with him. Date for execution of sale deed was postponed with mutual consent of both the parties. After payment of Rs. 3 lakhs on 23.02.2017, complainant had been kept on postponing the date of execution of sale deed on one pretext or the other. OP No.1 considering request of the complainant always had been agreeing for postponing the date for execution of sale deed. Since after 23.02.2017 complainant never agreed to get the sale deed executed by paying balance sale consideration, despite the fact that OP No.1 never refused to get the sale deed executed in favour of the complainant or of delivering possession of the land. Other averments of the complaint denied.
4. Documents along with evidence produced by the parties were ordered to be taken into consideration for disposal of the complaint as per latest instructions received from the Hon’ble State Commission. Thereafter none appeared for OP No.1 till date and as such after hearing arguments of counsel for the complainant, this complaint is disposed of through this detailed order.
5. Complainant nowhere has mentioned in the complaint or in his submitted affidavit or in the produced receipt Ex.C-1, as to what was the total sale consideration for which the plot of 5 marlas was to be sold by the OPs to the complainant, but OP No.1 has specifically claimed through written reply as well as his submitted affidavit that total sale consideration agreed to be paid by the complainant was Rs. 14,50,000/-. Specific version of OP No.1 in written statement and affidavit is that 5 marlas of land was agreed to be sold @ Rs.2,90,000/- per marla. Stand taken by OP No.1 in the written reply has not been controverted by the complainant and as such it is obvious that virtually total sale consideration was Rs.14,50,000/-, but complainant admittedly paid Rs. 8 lakhs only i.e. Rs. 5 lakhs on 08.11.2016, but Rs. 3 lakhs on 23.02.2017. So it is obvious that complainant by suppressing material facts regarding total sale consideration amount has filed this complaint. Whosoever suppresses material fact like this not entitled to any relief, moreso when the discussion hereinafter held will show that fault lays with complainant in not getting the sale deed executed by paying the balance sale consideration amount.
6. In receipt Ex C-1 produced by the complainant or in the notice Ex C-2 or in the affidavit of complainant Pawan Singh, it is not at all mentioned as to what was the date fixed for execution of sale deed except that originally the sale deed was agreed to be executed on 15.02.2017. Complainant himself made payment of Rs. 3 lakhs more on 23.02.2017 as per endorsement on back side of Ex C-1= Ex OP/1 at place Ex OP/2, but without mentioning date for execution of sale deed. If as per receipt Ex C-1= Ex OP/1, sale deed was to be executed on or before 15.02.2017, then through endorsement Ex OP/2 specific time should have been fixed for execution and registration of sale deed. However in the endorsement Ex OP/2 it is just mentioned that other terms and conditions of the agreement will remain the same. What are those other terms and conditions regarding the balance sale consideration price, qua that neither any averment made in the complaint or in the affidavit by the complainant or in the sent notice Ex.C-2 and as such it is obvious that complainant is concealing the material facts in this respect also. In such circumstances stand taken by Op No.1 in the written statement as well as through his affidavit is more close to reality that complainant himself had been getting the matter postponed qua fixing the date for execution and registration of sale deed. Rather the stand taken by OP No.1 is correct that complainant himself is at fault in not getting the sale deed executed by paying balance sale consideration amount. In view of this fault of the complainant, he is not entitled to any relief through this consumer complaint, more so when requirement of Section 16 of Specific Relief Act is that plaintiff (complainant of this case) must show his continuous, readiness and willingness to abide by terms and conditions of agreement of sale for claiming relief of specific performance. Complainant through this complaint virtually seeking refund of amount by blaming OPs in not executing the sale deed, despite the fact that he himself has not disclosed the material facts as referred above and nor has shown his continuous readiness and willingness to abide by terms and conditions of agreement of sale. Elaborate evidence also required for finding as to who is at fault in not getting the sale deed executed and as such certainly stand taken in the written reply by OP No.1 is correct that matter should be got decided from Civil Court of competent jurisdiction by way of filing suit for specific performance of agreement of sale. This complaint certainly has been filed for saving the court fee and as such same is not maintainable on that account also.
7. Though counsel for the complainant vehemently contends by taking us through written reply of OP No.1 that OP No. 1 admitted about receipt of Rs. 8 lakhs by him for execution of sale deed, on account of which complainant is entitled for relief through this complaint, but this submission has no force because OP No.1 virtually has reflected the correct position qua terms and conditions of agreement of sale by claiming that complainant had been getting the date of execution of sale deed extended because of his inability to pay the balance sale consideration amount. Had complainant really been interested in getting the sale deed executed, then he instead of issuing notice Ex C-2 would have called upon the Ops to fix date for execution and registration of sale deed. That has not been done by the complainant and as such fault lay with the complainant and not with the OPs. However, elaborate evidence required for finding as to who is at fault and as such it is fit and appropriate to dismiss the complaint by giving liberty to the complainant to approach the Civil Court.
8. As a sequel of above discussion, complaint dismissed, but with the observation that the complainant will be at liberty to approach the Civil Court. Certified copies of the order be supplied to the parties as per rules and thereafter file be consigned to the record room.
Announced
December 17, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
