JUDGMENT 4.11.2010 Justice Pritam Pal, President 1. The aforementioned two appeals arise out of the impugned common order dated 8.12.2008 passed by the District Consumer Forum- I, U.T. Chandigarh whereby two complaints bearing No.663 of 2008 and 664 of 2008 filed by Sh.Jasbir Singh and Sh.Kuldeep Singh respectively were dismissed with costs of Rs.5500/- each. Since, in both these appeals common questions of law and facts are involved, so, we are deciding these appeals by this common judgment. 2. The parties hereinafter shall be referred to as per their status before the District Consumer Forum. 3. The facts as culled out from complaint No.663 of 2008- Jasbir Singh Vs Shivalik Vihar Sites Pvt. Ltd. etc. are that OP No. 1 and 2 through OP No.3 & 4 had floated a Group Housing Scheme tilted as “Shivalik Apartments, Kharar’ and invited participation from the public at large, in the year 2005. The Complainant was fascinated by the features of the said Scheme as listed in the Brochure presented by the OPs, copy of which is Annexure C-1. Besides this, the OPs also represented that the entire Scheme including all peripherals would be ready and possession would be delivered latest by 6.4.2007. Acting upon the various assurances of OPs, the Complainant showed his willingness and made lumpsum payment of Rs.11.00 lacs on 4.3.2006 and no balance was payable thereafter by him. As per the terms & conditions of the Offer, the OP No.1 and 2 issued a Letter of Allotment dated 6.3.2006 to the Complainant, allotting him a Flat bearing No. 101 (1st Floor) in the Shivalik Apartments at Kharar, Rupnagar. The complainant perturbed by the slow pace of construction, contacted OPs No.2 & 4 in the month of December 2006 and sought reasons thereof, upon which he was assured that the construction was going to be completed very soon and the possession would be delivered as promised. Again when he visited the Site in the first week of April 2007, he found that the construction activity had not even reached the 1st Floor of the 6 Storey Apartment structure and was again assured by OPs No.2 & 4 that they would deliver the possession just about three months after the stipulated period and Complainant was requested to bear with them. Complainant again visited the site in the month of August, 2007 and contacted OPs upon which he was again assured that the flats would be ready for delivery to the occupants latest by December, 2007 and he was also assured that all the internal work as advertised by the OPs in their Brochure would also be completed by December 2007 positively. Apprehending the speed of construction exhibited by the OP No. 1 and 2, when he last visited the site on 24.3.2008, he found to his utter dismay that the construction activity was at a stand still. It was further alleged that without any prior notice of any kind, the OPs removed the name of “Shivalik Vihar Sites Private Limited” from the Bill Board and had instead painted the name of Sea Infrastructure, functioning with the same resources, staff and directors. Left with no option, the Complainant issued a legal notice to OPs on 12.5.2008 seeking the refund of the entire amount paid by him along with interest and compensation, but to no avail. Hence, alleging deficiency in service and unfair trade practice on the part of OPs, complainant filed complaint before the District Forum seeking refund of Rs.11.00 lac alongwith interest besides compensation, costs and punitive damages etc. On similar facts, Kuldeep Singh filed complaint bearing NO.664 of 2008 4. On the other hand, OPs contested the complaint before the District Forum by filing reply inter-alia stating therein that a Group Housing Scheme titled as “Shivalik Apartments Kharar” was floated by OPs. It was pleaded that no payment was made to OPs on 4.3.2006 or on any other date by the complainant. No writing was made by OPs in favour of the Complainant or in favour of any other person and rather the same was forged and fabricated, on the basis of which the complaint was instituted. It was pleaded that no letter of allotment dated 6.3.2006 was issued as Complainant had no source of income nor had the capacity to pay such huge amount. No such payment was made on 4.3.2006 or on any other date. There was no contract/agreement with OPs as no letter was issued and the alleged agreement and letters were fabricated with fraud . It was further pleaded that the Complainant never visited the office of the OP. It was pleaded that Anil Kumar was doing the business of property dealing in the name and style of White Sea Sites Private Ltd. and he was kidnapped by some persons who got signed blank letter heads and other documents for which FIR No.183 dated 26.9.2007 was registered at Police station, Zirakpur. A Civil suit was also filed in the civil court at Mohali restraining the complainants and other persons not to convert the blank papers into valuable security. Thus, the complainants had converted the blank signed papers into valuable security and filed complaints. Pleading that there was no deficiency in service on their part, a prayer was made by OPs for dismissal of the complaint. In the second complaint bearing NO.664/2008 OPs filed similar reply by taking identical pleas. 5. The District Consumer Forum after going through the evidence and hearing the counsel for parties came to the conclusion that there was no merit in the complaints and dismissed both the complaints vide common order dated 8.12.2008 as indicated in the opening part of this judgment. This is how feeling aggrieved against the said order , both complainants have come up in their respective appeals. 6. When the case was taken up for hearing arguments, none was present on behalf of respondents/opposite parties. However, earlier Sh. P.S. Paul, advocate was appearing on their behalf. We have heard learned counsel for the appellants/complainants and gone through the file carefully. The only noticeable point of arguments raised on behalf of the appellants/complainants is that the learned District Consumer Forum had not appreciated the documentary evidence placed on file in its right perspective while observing non-payment of the cost of flats. In this context, he made reference to para No.10 of the impugned order. The learned Counsel for complainants in that regard has specifically made reference to annexure A1(attached with the Memorandum of Appeal) and Annexure C-2 relied upon before the District Forum. He then also made reference to the photocopy of the report of S.S.P., District SAS Nagar (now marked as C-1/1) and photocopy of the order dated 7.8.2009 passed on the bail application of Anil Kumar-OP No.2 by the Hon’ble Punjab & Haryana High court (now marked as C-1/2). After making reference to the aforesaid documents, learned counsel for appellants submitted that in fact OP No.2 Anil Kumar alongwith other partners is the Managing Director of OP No.1. He had also got registered a police case regarding his kidnapping in order to show that the documents pertaining to the allotment of flat and receipt of payment by him were got signed by force by the complainants. He then contended that in this way he had defrauded many buyers of the flats under different housing schemes floated by him. At the fag end of his arguments, it was contended by Sh.Neeraj Sharma,advocate that Sh.Anil Kumar, OP No.2 is a big cheat and now he is facing many criminal cases registered against him. In that he made reference to various FIRs registered against him as observed by the Hon’b;e Punjab & Haryana High court in its order dated 7.8.2009. 7. We have given our thoughtful consideration to the above submissions put forth on behalf of the complainants and find that the learned District Forum while passing the impugned order has not at all taken into consideration any of the aforesaid points now raised before us. We have also minutely gone through the contents of Annexure A-1/C-2 which is no doubt a “draft of allotment” but at the same time it categorically goes a longway to show that the complainant Jasbir Singh is proved to have paid Rs.11.00 lacs towards cost of flat No.101 (first floor) in Shivalik Apartments, Kharar, whereas Sh.Kuldeep Singh is also proved to have paid Rs.11.00 lacs towards to the cost of flat No.104 (first floor) Shivalik Apartments, Kharar. This document in both cases is admittedly duly signed by Sh.Anil Kumar- OP No.2 who is MD of OP NO.1. This fact regarding admission of payment by OPs has not been appreciated in its right perspective by the learned District Forum. 8. It is also pertinent to mention here that from the material placed on file, it is apparent that Sh.Anil Kumar (OP No.2) had been admitting the receipt of payments in the same manner from other buyers as is being now claimed by the complainants. Further the stand taken by OP No.2 that his signatures were obtained on these aforesaid documents under duress or threat after he was kidnapped was also found falsified during the investigation of the FIR lodged by him (Anil Kumar). Not only that, it is further evident that he has been facing many criminal cases for duping the buyers of flats by colleting huge amount on the pretext of raising construction of flats for sale. All these abovementioned facts, documents and material placed on the file infact have not been considered by the learned District Forum. Thus, the impugned order is liable to be set aside and we order accordingly. 9. In the result, both appeals are accepted with costs of Rs.5000/- each. Consequently both complaints are allowed and OPs are hereby directed to pay to the complainants Rs.11.00 lacs each alongwith interest @ 6% p.a. from the respective dates of deposits till actual realization. The aforesaid amounts shall be paid by OPs to the complainants within thirty days of the date of receipt of certified copy of the order, failing which OPs shall be liable to pay penal interest @ 12% p.a. from the date of this order till actual payment. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | , | |
