Punjab

Ludhiana

CC/15/533

Brinder Kaur - Complainant(s)

Versus

Vikas House Building society Co.Pvt.Ltd. - Opp.Party(s)

compl.in person

20 May 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

                                                          Consumer Complaint No. 533 of 09.09.2015

Date of Decision    :  20.05.2016     

Ms.Brinder Kaur w/o S.Tejwant Singh, House No.1136, Sector-70, Mohali-16071.

….. Complainant

Versus

Complaint/petition against M/s Vikas House Building Co.Pvt.Ltd., A-56, BRS Nagar, Ludhiana-141012.

1.Mr.Pyush Bhalla MD Vikas House Building Co.Pvt. Ltd, A-56, BRS Nagar, Ludhiana.

2.Mr.Boota Singh Director Vikas House Building Co.Pvt.Ltd, A-56, BRS Nagar, Ludhiana-141012.

…Opposite parties

 

    (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :        Sh.Tejwant Singh, authorized representative.

For Ops                         :        Sh.A.K.Shori, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                          Complainant purchased plot No.431-DX-1,measuring 250 sq.yards situate in Sahid Sukhdev Nagar, South City, Ludhiana @1675 per Sq.yards plus 5% extra amount because the plot is park facing. Receipt No.26607 dated 5.7.1998 produced along with the complaint. At the time of purchase, it was informed that the said residential colony is duly approved by PUDA and is fully developed. Further, it was informed that all the facilities will be provided by the developer in due course of time and this area will become a posh residential area. Full and final payment of Rs.4,39,687.50P was made by the complainant and agreement dated 19.8.1998 in that respect was signed. Registration Deed for the purchase of the plot bearing Wasika No.26510 dated 9.3.1999 was executed. Even mutation has been sanctioned in favour of    the complainant. However, development of the site remained very tardy and finally came to stand still due to some dispute between land owners and the developer i.e.M/s Vikas House Building Co.Pvt.Ltd. Subsequently, the developer changed the layout of the site completely without consent of the complainant. The park facing plot was converted to a normal plot without refund of extra money received from the complainant. In the revised layout plan, the colony lost all the parks and public places indicated in the original plan. Due to non providing of basic facilities for a residential colony like roads, sewerage, water supply and electricity, complainant failed to construct the house in time for her personal use, which caused immense loss to the complainant, due to escalation of building construction price. When the complainant raised issue with developer,then he promised her in near future by offering a park facing plot. Nothing happened over a long period of time, inspite of regular follow up     action for getting a park facing plot. Thereafter, complainant requested for refund of 5% extra money deposited along with due interest and compensation. After that complainant received refund of Rs.20,937/- through cheque No.609588 dated 19.12.2014. However, no interest was given to the complainant. On 16.3.2015, again matter was taken by the complainant for payment of interest and compensation, but no positive response received despite repeated letters and sending emails through registered post. None of the letters sent by the complainant was acknowledged. Complainant claims that she had been personally visiting the office of OPs and even contacting them on telephone. By pleading adoption of unfair trade practice on the part of developer, directions sought to OPs to pay interest @18% on extra amount of Rs.5% i.e. Rs.20,937/- of 16 ½ years, for which, said amount was retained by the developer. Even directions sought for reimbursement of regularization fee of Rs.23,750/- paid by the complainant to GLADA. Compensation for mental agony and harassment as well as loss of property and legal consultation charges even claimed.

2.                In joint written statement filed by OP1 and OP2, it is pleaded interalia as if the complaint is not maintainable in the present form; complaint is bad for mis-joinder and non-joinder of necessary parties; concealment of material facts also pleaded and it is also claimed that complaint is barred by limitation because purchase was made on 9.3.1999 and at the time of execution of sale deed of that date, everything was explained to the complainant. It is claimed that plot purchased by the complainant was not a corner plot. Had there been any objection by the buyer, then arrangement for the corner plot would have been made at the time of execution and registration of the sale deed. The produced receipt alleged to be issued by M/s Vikas House Building Co.Pvt., who is not a party in the present complaint. An amount of Rs.10,000/- was paid by the complainant to the company on 5.7.1998. Complainant was duly explained that colony will be fully developed residential colony, but no representations were made that the colony will be PUDA approved colony. Matter of accounts is between  M/s Vikas House Building Co.Ltd., and OPs cannot respond to the allegations qua receipt of full and final payment. Admittedly, sale deed dated 9.3.1999 was got executed in favour of complainant by the company M/s Vikas House Building Co.Pvt.Ltd directly from the farmers. In that sale deed, the boundaries of the plot were duly disclosed, from which, it became obvious that the plot  sold to the       complainant was not a corner plot. Complainant being the registered owner may have the property mutated in her favour. There was no delay in the development of the colony and the colony alleged to be fully developed. Complainant demanded refund of 5% extra paid amount for the corner plot in 2014 and the said amount was refunded to the complainant by M/s Vikas House Building Co.Pvt. Ltd., vide cheque No.609588 dated 19.12.2014. An amount of Rs.20,937/- was refunded through this cheque. As the said amount paid on demand and as such, there is no deficiency in service on the part of OPs. Complainant might have paid the amount to GLADA for regularization of her plot and even the company paid the amount to GLADA for regularization of the colony and as such, it is claimed that there is no deficiency in service on the part of OPs because as per the policy of Punjab Government, the matter regarding regularization of colony by GLADA has two aspects, one of which to be dealt with by colonizers and second by the plot owners.

3.                Complainant to prove her case tendered in evidence her affidavit Ex.CA through her representative Sh.Tejwant Singh along with documents Ex.C1 to Ex.C5 and Ex.C3/A and then closed the evidence.

4.                On the other hand, affidavit Ex.RA of OP2 along with documents Ex.R1 to Ex.R3 tendered in evidence by OP2 and then he closed the evidence.

5.                Thereafter, Sh.A.K.Shori, Advocate for OP1 and OP2 suffered statement that evidence produced by OP2 may be read as evidence OP1 also and he closed the evidence on behalf of OP1 also.

6.                          Written arguments not submitted by any of the parties. Oral arguments of counsel for the parties alone addressed and were heard. Records gone through minutely. 

7.                First and foremost contention of Sh.A.K.Shori, Advocate representing OPs is that contract for the purchase of plot and registration of sale deed Ex.R1 was between the complainant and Malkeet Singh, the owner and as such, complaint against the present OPs is not maintainable, particularly when M/s Vikas House Building Co.Pvt. Ltd, has not been impleaded as party. That submission of counsel for the OPs has no force because after going through the contents of complaint itself it is made out that in the opening lines of the complaint itself it has been mentioned that complaint/petition is against M/s Vikas House Building Co.Pvt.Ltd, A-56, BRS Nagar, Ludhiana. Mr.Pyush Bhalla, Managing Director of Vikas House Building Co.Pvt.Ltd along with  Mr.Boota  Singh,  Director of Vikas House Building Co.Pvt.Ltd, have   been impleaded as defendants/respondents and as such, from all these facts, it is made out that virtually the complaint has been filed by the complainant against M/s Vikas House Building Co.Pvt.Ltd, by impleading the Managing Director and Director of the said concern as parties. Complaint has been presented by the complainant through attorney, who is not legally trained  and as such, technicality not to come in the way of the administration of justice. Rather, from the above referred facts, it is made out that complaint is filed against M/s Vikas House Building Co.Pvt.Ltd, with impleadment of Managing Director and Director as parties.

8.                As per law laid down in case titled as Sunil Sharma vs. National Insurance Company Limited-II(2015)CPJ-46(Delhi State Consumer Disputes Redressal Commission, New Delhi), an otherwise genuine claim should not be rejected on flimsy and technical grounds, otherwise, the confidence of people in the insurance company would be deeply eroded. It has been observed in the above cited case that Consumer Forums are not established to go in the technicalities of the civil or criminal jurisprudence. Further, it has been held in the above cited case that provisions of the Evidence Act and Civil Procedure Code are not applicable in the proceedings before the Consumer Forums. Disputes are to be decided on yardsticks of reasonableness, probability and by keeping in view of the principles of natural justice. If  such is the legal position, then technicalities of not mentioning the name of M/s Vikas House Building Co.Pvt.Ltd, in the array of defendents/respondents must not stand in the way of administration of justice, particularly, when from the opening lines of the complaint itself, it is made out that the compliant is presented against M/s Vikas House Building Co.Pvt.Ltd, as referred above.

9.                Impleadment of owner Malkeet Singh also is not required because sale deed Ex.R1 got executed by Sh.Ayush Bhalla s/o Sh.Yashpal Singh Bhalla as Director of M/s Vikas House Building Co.Pvt.Ltd, A-56, Bhai Randhir Singh Nagar, Ludhiana as attorney of Malkeet Singh in favour of complainant on payment of full sale consideration of Rs.4,35,000/-. This sale deed Ex.R1 is of date 09.03.1999, but the provisional receipt Ex.C3/A is of date 5.7.1998 qua the plot in question issued on letter head of Vikas House Building Co.Pvt.Ltd, after acceptance of Rs.10,000/- from complainant Smt.Barinder Kaur. Receipt Ex.C4 of date3.8.1998 shows as if Rs.1,62,687.50P accepted from the complainant by Vikas House Building Co.Pvt.Ltd, but receipt Ex.C5 of date 3.8.1998 shows as if another amount of Rs.2,67,000/- accepted by Vikas House Building Co.Pvt.Ltd, from complainant through cheque, the numbers of which are mentioned in both receipts Ex.C4 and Ex.C5. All these receipts Ex.C3/A, Ex.C4 and Ex.C5 signed by one Mr.Bhalla as Director of Vikas House Building Co.Pvt.Ltd. So, in view of acceptance of total sale consideration amount of Ex.R1 by Director of M/s Vikas House Building Co.Pvt.Ltd, and then executing the sale deed Ex.R1 by Director of said company as attorney of original owner Malkeet Singh, it is obvious that virtually the complainant happened to have deal of       purchase of the plot in question with M/s Vikas House Building Co.Pvt.Ltd, but company  for escaping liability might have got the sale deed executed directly from          Malkeet Singh. So, submission of representative of complainant certainly has force that actually the transaction of purchase of the plot in question was arrived at between the complainant and M/s Vikas House Building Co.Pvt.Ltd, through its Director. It is on account of this that M/s Vikas House Building Co.Pvt.Ltd, through letter Ex.R2 of date 10.1.2015, refunded the amount of Rs.20,937/- to the complainant through cheque No.609588 dated 19.12.2014 drawn at PNB, Aggar Nagar, Ludhiana and placed on record as Ex.R3(in copy form). That cheque Ex.R3 is signed by Sh.Yash Paul, the authorized signatory and the said refund was on account of excess received amount of 5% extra for park facing plot and as such, virtually, M/s Vikas House Building Co.Pvt.Ltd, through its Director happened to have all kinds of dealings with the complainant in respect of the plot in question.

10.              Company is a juristic person, who is to act through its Director or Managing Director and as such, if the Director and Managing Director of the company impleaded while filing the complaint against M/s Vikas House Building Co.Pvt.Ltd,, then   no illegality committed by the complainant at all in filing the complaint because technicalities must not come in the way of granting relief, which actually is due to a party. Provisions of Order XXX Rule 1 of Code of Civil Procedure 1908 provides that any two or more persons claiming or being liable as partners and carrying on business in, India may sue or be sued in the name of the firm (if any), of which such persons were partners at the time of the accruing of the cause of action. Further provisions of Order XXX Rule 3 of Code of Civil Procedure 1908 provides that where persons are sued as partners in the name of their firm, the summons shall be served either upon any one or more of the partners or at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management of the partnership business and the Court will deem such service to be a good service upon the firm so sued, whether all or any of the partners are within or without India. Same principle also applies in the matter of impleadment and service of a company. Even as per law laid down in case titled as United Bank of India vs. Naresh Kumar-AIR-1997(S.C.)-3; as per Order XXIX Rule 1 of Code of Civil Procedure 1908, in a suit by or against corporation, the secretary or any Director or other Principal Officer of the Corporation, who is able to depose to the facts of the case might sign and verify on behalf of the company. So, rules  governing  the  institution  of suit  and service of summons on the              partners of the Firm apply even in respect of the suit instituted for and on behalf of the company. From the above said provisions and case law, it is made out that company can     be served and sued through Director/Managing Director or any other principal officer of the company. In this case, complaint filed against company by impleading Managing Director and Director of company and company acted through Managing Director and as such, written statement on behalf of OP1 and OP2 in fact is the written statement of company also. Reference to Section 2(26) of The Companies Act, 1956 can specifically be made in this respect, which defines managing director. Managing Director means a director, who by virtue of an agreement with the company or of a resolution passed by the company in general meeting or by its Board of directors or by virtue of its memorandum or articles of association, is entrusted with substantial powers of management, which would not otherwise be exercisable by him, and includes a director occupying the position of a managing director, by whatever name called. So, Managing Director is not a servant of the company, but he is an agent of the company for carrying on its business. In view of this, it is obvious that company to act through the Managing Director or the Director. So, impleadment of M/s Vikas House Building Co. Pvt.Ltd through Director or Managing Director is in accordance with the provisions of Section 2(26) of the Companies Act, 1956 even.

11.              Letter dated 10.1.2015 Ex.R2 along with cheque Ex.R3 has been produced by the appearing OPs and as such, above said fact also discloses as if these appearing Ops have assess the records of M/s Vikas House Building Co. Pvt.Ltd. If such assess by appearing OPs to the records of the company is there, then inference is obvious that they deliberately took the false plea qua not being aware of the sale and purchase of the plot between complainant and M/s Vikas House Building Co. Pvt.Ltd. As refund of Rs.20,937/- done by M/s Vikas House Building Co. Pvt.Ltd on account of 5% extra charged amount for the park facing plot and as such, in case, description of the park facing plot not given in the sale deed Ex.R1, then same does not make any difference. It is so because question of return of 5% extra charged amount for park facing plot through cheque Ex.R3 to arise only, if really such amount would have     been retained by M/s Vikas House Building Co. Pvt.Ltd at the time of execution of sale deed Ex.R1. As that refund made on 10.1.2015 through letter Ex.R2 vide cheque Ex.R3 dated 19.12.2014 and as such,  virtually   the  cau se of action survived in favour of the complainant till actual refund done through letter Ex.R2. So, complaint being filed within 2 years from the issue of letter Ex.R2 of date 10.01.2015, is within limitation. Grievance of the complainant remains qua non receipt of interest on refunded amount of Rs.20,937/- and that grievance is genuine. Redressal of the same through this Forum sought after letter Ex.R2 received by him with cheque Ex.R3. Site plan Ex.C3 produced by the complainant itself shows as if plot No.DXI 431 is a park facing plot qua which sale deed Ex.R1 got executed by the Director of M/s Vikas House Building Co. Pvt.Ltd. That pot No.DXI 431 adjoins the plot No.430 as shown in Ex.C3. In front of the Row of plot Nos.427, 430 and 433, there is a lane and ahead to that there is a park having area of 185’0’’ x 125’0”. This is reflected in Ex.C3 and as such, in view of refund of the extra charged amount for the Park Facing Plot, now Ops estopped from claiming that actually excess 5% was not charged from the complainant for the park facing plot. Rule of Estoppel denudes the Ops from pleading that excess amount was not received by them for providing the plot facing park. This amount retained by Ops from the date of execution of sale deed Ex.R1 till its refund on 10.1.2015 in illegal way because promise of providing park facing plot to complainant was not fulfilled by the OPs. FDR’s in bank earns interest @8% p.a. and as such, for the illegal withholding of amount of Rs.20,937/- by the Ops, they should be saddled with responsibility of paying interest @8% p.a. w.e.f. 10.3.1999 till 10.1.2015. Promise was made by the OPs to the complainant to provide park facing plot and that is why, site plan Ex.C3 was released, but that promise was subsequently not fulfilled and as such, in view of false assurances given by the Ops to the complainant, they are guilty of adopting unfair trade practice. For that adoption of unfair trade practice, Ops are liable to be saddled with responsibility of paying interest as referred above by keeping in view date of execution of sale deed Ex.R1 and date of refund evidenced through Ex.R2.

12.              If complainant has paid the regularization fee of Rs.23,750/- to the GLADA, then the same is in pursuance of the policy of Government of Punjab published vide Notification No.GSR.41/PA14/1995/Ss 38 & 45/Amd.(2)/2010 dated 9.12.2010. Vide this notification, Punjab Apartment and Property Regulation Rules 1995 has been amended for incorporating the relevant provisions/conditions for regularization of unauthorized colonies. Clause 6 of said notification provides that unauthorized colonies should be regularized in certain situations on payment of certain charges by the developer of the colony as well as by the individual plot holders. The regularization charges as fixed under this policy shall be paid by the plot holders in the colony for getting his plot/construction regularized on one hand, but on the other hand, the developer of the colony is bound to pay composition fee as fixed by the Government under this policy for getting the offense of carving out unauthorized colony compounded. If regularization charges have been accepted by GLADA from the complainant for regularization of her unauthorized plot, then the same is in accordance with the policy of the Punjab Government published vide notification dated 21.8.2013 bearing No.12/2/13-5HG2/3052. That notification dated 21.8.2013 has been issued by the Government of Punjab Department of Housing and Urban Development (Housing II Branch). Copy of that notification has been produced during the course of arguments by the counsel for OPs. As complainant cannot have started construction without payment of the regularization charges and as such, virtually these charges paid by the complainant for getting her plot regularized from GLADA. These payments of regularization charges made by the complainant in accordance with the policy of Government of Punjab and as such, virtually these legal charges are paid by the complainant as of necessity in view of the notification referred above. As complainant himself remained at fault in not ascertaining that colony in question is  regularized,  but despite that she got the sale deed Ex.R1 executed on 9.3.1999 and every citizen residing in Punjab bound by the policy of Government of Punjab and as such, complainant not entitled for reimbursement of paid regularization fee of Rs.23,750/- at all. However, the complainant has to run from pillar to post by  contacting OPs time and again and for refund of extra charged 5% amount for getting park facing plot and as such, complainant certainly has suffered mental agony and harassment for about 16 ½ years, due to which, she is entitled to somewhat hefty compensation amount. Complainant is also to be blamed for her own harassment because she got the sale deed Ex.R1 executed directly from Malkeet Singh, the owner without ascertaining as to why the sale deed executed by Director of M/s Vikas House Building Co. Pvt.Ltd on behalf of owner Malkeet Singh.

13.              Therefore, as a sequel of the above discussion, complaint allowed in terms that complainant will be entitled for simple interest @8% p.a. on amount of Rs.20,937/- w.e.f. 10.03.1999 to 10.01.2015. Further, an amount of Rs.40,000/- allowed on account of mental agony and harassment suffered by the complainant. Litigation expenses of Rs.5000/- more allowed in favour of the complainant and against OPs i.e. M/s Vikas House Building Co.Pvt.Ltd., whose Managing Director is OP1 and Director is OP2. Payment of above amounts be made within 45 days from the date of receipt of copy of order. Copies of order be supplied to the parties free of costs as per rules.  

14.                        File be indexed and consigned to record room.

 

                                      (Babita)                            (G.K.Dhir)

                              Member                            President

Announced in Open Forum

Dated:20.05.2016

Gurpreet Sharma.