Per Justice Sham Sunder , President This appeal is directed against the order dated 8.7.2011, rendered by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh (hereinafter to be referred as the District Forum only), vide which it accepted the complaint of the complainant(now respondent) and directed the Opposite Party (now appellant) ; “(i) to refund an amount of Rs.2,80,437/- to the complainant along with interest 9% per annum from the date of respective deposits till actual payment. (ii) to pay a sum of Rs.7,000/- to the complainant as costs of litigation. This order be complied with by the opposite party within 30 days from the date of receipt of its certified copy, failing which, the opposite party shall be liable to refund Rs.2,80,437/- to the complainant along with penal interest @18% p.a. from the date of respective deposits till its realization besides payment of Rs.7,000/- as costs of litigation.” 2. The complainant, applied for the allotment of a plot, measuring 10 marlas, in Shalimar Estates, Naggal –Alipur. The application of the complainant was accepted by the opposite party, and he was allotted Plot No.13, measuring 10 marlas, in Shalimar Estates at Village Naggal- Hadbast No.238. An agreement annexure C5, was executed between the parties, on 15.3.2002. According to the terms and conditions of the said agreement, the Opposite Party agreed to sell the above said plot to the complainant for a sum of Rs.2,45,025/-. A sum of Rs.61,256.25p was paid as earnest money, at the time of execution of the agreement, whereas the remaining amount of Rs.1,83,768.25P was to be paid in six installments of Rs.30,628.13P each alongwith interest, as per the details given in Para No.3 of the agreement. It was stated that as per the agreement dated 15.3.2002, the last date fixed for registration of the sale deed was 19.1.2008, and the possession of the plot was to be delivered within five years of the date of allotment. It was further stated that the complainant paid all the installments regularly, and the last payment was made, towards full and final price, alongwith interest, on 18.1.2008. It was further stated that the complainant paid the entire sale consideration of the plot, but despite the lapse of a period of more than eight years from the date of allotment, the Opposite Party, neither executed the sale deed, in favour of the complainant, nor possession of the said plot was handed over to him. The complainant wrote a number of letters and approached the opposite party many times, seeking possession of the plot, execution and registration of the sale deed, in his favour, but to no avail. It was further stated that the aforesaid acts of the opposite party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter to be called as the Act only) was filed by him, for issuing directions to the Opposite Party, to transfer/pass over the perfect proprietor and possessory right by actual and factual possession of plot No.13-P measuring 10 marlas, in phase-1 of the proposed Shalimar Estate, Naggar-Alipur ; or in the alternative to pay the amount in terms of money equivalent to the market price in the adjacent and adjoining area as escalation cost which was around Rs.11,000/- per sq. yard ; or to allot any other plot of the same size, in the equally good locality ; or in the last, to refund the entire amount alongwith interest @ 24% p.a. plus exemplary compensation, to the tune of Rs.15 lacs, as punitive damages, alongwith litigation expenses. 3. In the written reply, filed by the Opposite party, the factual matrix of the case was admitted. The allotment of plot was admitted. The execution of the agreement to sell, between the parties, was also admitted. It was also admitted that the complainant paid the total sale consideration of the plot, in question. It was, however, stated that the Government of Haryana wrongly launched criminal proceedings, against the opposite party, for developing Shalimar Estates. The Opposite Party challenged the said act of the Government, by way of Civil Writ Petition No.2437 of 2003, in case titled ‘Shalimar Estates Pvt. Ltd. Vs. State of Haryana and others’. On 13.2.2003, a Division Bench of the Punjab & Haryana High Court stayed the demolition and dispossession. Later on, the said Writ Petition was admitted for hearing and it was ordered that the stay shall continue. It was further stated that the Writ Petition had not yet been finally decided. It was further stated that, on account of this reason, the sale deed could not be executed within the stipulated time, nor the possession could be delivered to the complainant. It was further stated that the opposite party was still ready and willing to execute and get the sale deed registered, and hand over possession to the complainant, after the decision of the Writ Petition. It was further stated that the complainant was not entitled to the refund of any amount, with interest. It was denied that the opposite party was deficient, in rendering service, or indulged into unfair trade practice. The remaining averments, were denied, being wrong. 4. The parties led evidence, in support their case. 5. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order. 6. Feeling aggrieved, the instant appeal, was filed by the appellant/complainant. 7. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 8. The Counsel for the appellant/complainant, submitted that the complainant sought the principal relief, directing the opposite party to execute and get registered the sale deed, in his favour, in respect of the plot allotted to him, and deliver possession thereof to which he was entitled as he had already deposited the entire sale consideration, but the District Forum arbitrarily granted the relief of refund of the amount, deposited by him. He further submitted that in other two cases, Asha Gupta Vs Shalimar Estate, Complaint case No.831 of 2009 decided on 29.12.2009 and Suraj Rathi Vs Shalimar Estate, Complaint case No.777 of 2009 decided on 18.1.2010, based on the identical facts, relating to the same estate, the District Forum, granted the relief of execution of sale deed, in favour of the complainants, delivery of possession and compensation. He further submitted that the order of the District Forum, regarding refund of the amount, being illegal, is liable to be set aside. 9. On the other hand, the Counsel for the respondent/opposite party, submitted that the Haryana Government wrongly launched criminal proceedings, against the opposite party , for the development of Shalimar Estates and those were challenged by it, before the Punjab & Haryana High Court, by filing a Writ Petition and a stay was granted therein. He further submitted that the opposite party is still ready and willing to execute and get registered the sale deed and hand over possession of the plot, in question, in favour of the complainant, but, on account of stay granted by the High Court, in the aforesaid Writ Petition, it could not be done. He further submitted that, as and when, the stay was vacated, by the Hon’ble Punjab & Haryana High Court, the sale deed shall be executed and possession of the plot shall be delivered to the complainant. 10. After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, and, on going through the evidence and record of the case, we are of the considered opinion, that the appeal deserves to be accepted, for the reasons, to be recorded hereinafter. Admittedly , the complainant applied for the allotment of a plot, to the Opposite Party. C2 is the letter of allotment of residential plot no.13 of 10 marlas in favour of the complainant. In this document, the payment schedule of instalments is given. The opposite party admitted, in the written reply, that the entire sale consideration of the plot, has already been paid by the complainant. Annexure C5, is the sale agreement, which was executed, between the parties, and they are bound by the terms and conditions thereof. As per clause-4 of the sale agreement, the last date for registration of sale deed was fixed as 19.1.2008, however, the same could be extended with mutual consent. According to clause-5 of this agreement, the possession of the plot was to be delivered within five years from the date of allotment i.e. 19.1.2002. The principal relief, which was sought by the complainant, in the complaint, was the execution and registration of sale deed and delivery of possession of the plot, in question. Had the complainant been not found to be entitled to the principal relief, only them the District Forum, could consider the grant of alternative relief. The stay in the Writ Petition was granted, against the Haryana government, with regard to demolition of construction, raised by the opposite party, and its dispossession from the land. Even in Asha Gupta Vs Shalimar Estate, Complaint case No.831 of 2009 decided on 29.12.2009 and Suraj Rathi Vs Shalimar Estate, Complaint case No.777 of 2009 decided on 18.1.2010, the facts whereof are similar and identical to the instant case, the District Forum granted the relief of execution of sale deed, in favour of the complainants, delivery of possession and compensation. In Asha Gupta’s case (supra) an appeal was filed by the opposite party, which was also dismissed. Not only this, in Yashpal Guleria Vs M/s Shalimar Estate Pvt. Ltd., Appeal No.340 of 2010, decided on 18.7.2011, a case based on similar and identical facts, claiming the same relief, as in the instant case, this Commission, set aside the order of the District Forum, vide which, it granted the refund of amount to the complainant, deposited towards the price of plot, and granted the relief of possession. In the aforesaid Writ Petition, no stay, was granted by the High Court against the opposite party, which was the petitioner therein. By not executing the sale deed of the plot, in question, getting it registered and delivering possession to the complainant, the opposite party was deficient, in rendering service. In our considered opinion, the complainant was entitled to the relief of execution and registration of the sale deed, in his favour, as also delivery of possession of the plot, in question, but the District Forum was wrong, in granting the relief of refund of amount. The order of the District Forum is, thus, liable to be set aside. 11. The next question, that arises for consideration, is, as to whether, the complainant is entitled to compensation. As per the agreement C4, the sale deed was to be executed on or before 19.1.2008. Till date the sale deed has not been executed and got registered, in favour of the complainant. The complainant was expecting that if the sale deed of the plot, in question was executed, in his favour, by the opposite party, on or before 19.1.2008, the date fixed in the agreement, he will raise construction thereon, so as to reside therein. The complainant requested the opposite party a number of times to execute and get registered the sale deed, but it did not bother. The opposite party has retained the amount, deposited by the complainant, towards the price of the plot, for a period of more than 3 ½ years from 19.1.2008, but has failed to execute and get registered the sale deed, though there is no stay against the opposite party/respondent, which could prevent it from executing and getting the sale deed registered, in favour of the complainant. The complainant, thus, underwent tremendous physical harassment and mental agony on account of non-execution and registration of the sale deed, in his favour for such a long period and also suffered financial loss. In this view of the matter, if compensation, in the sum of Rs.50,000/- is granted to the complainant, that would not only be fair and reasonable but also commensurate with the injury suffered by him. 12. For the reasons recorded above, the appeal is accepted with costs. The order of the District Forum is set aside. The respondent/opposite party is directed as under ; (i) to execute and get registered the sale deed, in favour of the complainant, in respect of the plot, in question, and deliver possession of the same to him. (ii) to pay to the complainant compensation, in the sum of Rs.50,000/-, for causing him mental agony and physical harassment. (iii) to pay Rs.5000/- towards litigation costs. The order shall be complied with within 30 days, from the date of receipt of a copy of the same, failing which, the Opposite Party shall be liable to pay interest @ 12% p.a., on the aforesaid amount of Rs.50,000/-, from the date of filing the complaint, till the order was complied with, and/or the amount was actually paid to the complainant, besides costs. 13. Certified copies of this order be sent to the parties, free of charge. 14. The file be consigned to the Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
