Per Justice Sham Sunder , President This appeal is directed against the order dated 25.8.2011, 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.1,42,350/- 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.1,42,350/- 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, in response to an advertisement given by the Opposite Party, applied for allotment of a plot measuring 6 Marlas in Phase-I of Shalimar Estates. The application of the complainant was accepted by the Opposite Party and he was allotted Plot No.126, measuring 6 Marlas in Phase-I, at the proposed Shalimar Estates in Village Naggal Hadbast No.238. An agreement to sell dated 25.3.2002 was executed between the parties. 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.1,21,500/-. A sum of Rs.30375/- was paid as earnest money at the time of execution of the agreement, whereas, the remaining amount of Rs.91,125/- was to be paid in six installments of Rs.15,187/- each alongwith interest, as per the details given in Para No.3 of the agreement. It was stated that the complainant paid all installments regularly. In all, he paid a sum of Rs.1,42,350/- vide receipts, copies whereof are annexures C-5 to C-10 respectively. It was further stated that according to the agreement, aforesaid, the last date fixed for registration was 19.1.2008, and the possession of the plot was to be given within five years from the date of allotment. It was further stated that the complainant paid the entire sale consideration of plot, but despite the lapse of a period of more than five years, from the date of allotment, the opposite party did not execute the sale deed, in favour of the complainant. The Opposite Party was approached a number of times, with a request to execute the sale deed and get it registered, in favour of the complainant, 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 execute and get registered the sale sale deed ; to pay compensation of Rs.4,50,000/- for physical harassment and mental agony suffered by the complainant ;and to pay costs of litigation of Rs.22000/-. 3. In the written reply, filed by the Opposite Party, the factual matrix of the case was admitted. The execution of the agreement to sell between the parties was also admitted. It was also admitted that the complainant paid a sum of Rs.1,42,350/-. 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 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. It was further stated that the Opposite Party was still ready and willing to execute and get the sale deed registered, after the decision of the Writ Petition. 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 never sought the relief of refund of amount, deposited by him. He further submitted that the relief, sought by the complainant, was that the Opposite Party be directed to execute and get registered the sale deed, in his favour, in respect of the plot allotted to him, and to pay compensation and costs. He further submitted that the District Forum, could not grant the relief, which was not sought, by the complainant. He further submitted that the District Forum did not, even make a reference, in its order, as to why the complainant/appellant, was not entitled to the relief of execution and registration of sale deed, in his favour. He further submitted that the order of the District Forum, with regard to the refund of 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 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 got registered. 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. Undisputedly, the complainant applied for the allotment of a plot, to the OP. It is evident from the allotment letter annexure C2 dated 19.1.2002 that plot No.126 of 6 marlas, at Shalimar Estates, Naggal-Alipur, was allotted to the complainant. The complainant has paid the full and final payment, vide receipts annexure C3,C5 to C10. The OP has also admitted the factum of full and final payment of sale consideration by the complainant. Annexure C4 is the sale agreement dated 25.3.2002, which was executed, between the parties, and they are bound by the terms and conditions thereof. As per clause-4 of this agreement, the last date for the execution of sale deed, in respect of the plot, in question, in favour of the complainant, was fixed as 19.1.2008. The same could be extended with mutual consent. According to clause-5 of this agreement, possession of the plot was to be delivered within 5 years, from the date of allotment i.e. 19.1.2002. The complainant, thus, complied with all the terms and conditions of the sale agreement, referred to above. The perusal of the complaint shows that the complainant, sought the relief of execution and registration of sale deed, compensation, and the costs. No relief, regarding the refund of amount, was sought by the complainant. Under these circumstances, there was no reason, on the part of the District Forum, to grant a completely different relief, than the one, sought by the complainant. There is nothing, on record, to reveal, that the sale deed could not be executed and got registered in favour of the complainant , on account of the circumstances, beyond the control of the Opposite Party. In Asha Gupta Vs Shalimar Estates, Complaint case No.831 of 2009 decided on 29.12.2009 and Suraj Rathi Vs Shalimar Estates, 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, and compensation. Appeal No.51 of 2010 filed by Shalimar Estates against the order dated 29.12.2009 aforesaid, was dismissed vide order dated 2.7.2010. 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 relief of refund of the price of plot, deposited by the complainant, and granted the relief of possession. The District Forum was, thus, wrong in granting the relief of refund of amount, which was not sought by the complainant. By not executing the sale deed, in terms of the agreement of sale, the Opposite Party was grossly deficient, in rendering service. The order of the District Forum, thus being illegal and perverse, deserves 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 3½ 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. (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 | |
