State Consumer Disputes Redressal Commission
M/S Emerging India Real Assets P Limited vs Kamer Chand on 9 February, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 51 of 2016 Date of Institution : 05.02.2016 Date of Decision : 09.02.2016 M/s Emerging India Real Assets (P) Ltd., SCO No.46-47, First Floor, Sector 9-D, Chandigarh, through its Authorized Signatory. M/s Emerging India Housing Corporation Private Ltd., SCO No.46-47, First Floor, Sector 9-D, Chandigarh, through its Authorized Signatory. ......Appellants/Opposite Parties No.2 and 3 V e r s u s Kamer Chand son of Late Shri Rakha Ram, resident of House No.99, Milk Colony, Dhanas. ....Respondent No.1/Complainant M/s Siswan Paradise Private Limited, through M/s Emerging India Real Assets (P) Ltd., SCO No.46-47, First Floor, Sector 9-D, Madhya Marg, Chandigarh, through its Managing Director Director/Authorized Signatory. [Old Address:- M/s Siswan Paradise Private Limited, SCO 28, 29 and 30, Top Floor, Sector 9-D, Madhya Marg, Near Matka Chowk]. ....Respondent No.2/Opposite Party No.1 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh.Vinod Kumar, Advocate for the appellants.
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT This appeal is directed against an order dated 16.09.2015, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the Forum only) vide which, it accepted a complaint, filed by the complainant (now respondent no.1).
It is not in dispute that a project known as "Siswan Paradise", was floated by respondent no.2/ opposite party no.1. As per admitted position, to sell all the farm houses (in short the unit), in the said project, assignment was given to the appellants. It is so apparent from the Agreement dated 30.05.2012, executed between respondent no.1 and appellant no.1. In the Agreement, it is provided that respondent no.2 shall purchase land and obtain requisite clearances/permissions from the respective Govt. Authorities, qua the said project. It was further provided that respondent no.2/opposite party no.1 was to provide access, required details, designs, valuable information/salient features of the project, to appellant no.1 or its employees. It is specifically stated that the appellants were to deal with the marketing of the said project and it was not open to the appellants to do the same job, for any other concern.
It is case of respondent no.1 that on assurances given by representatives of appellant no.1, showing them a rosy picture, qua project setup by respondent no.2, he purchased a unit, measuring 2 kanals (1210 square yards), in village Mirzapur, Punjab. Total price of the said unit was fixed at Rs.7.10 lacs. It was to be paid in three installments. By the end of March 2013, entire amount stood paid by respondent no.1. Sale Agreement (Full and Final) Annexure C-4 was entered into between respondents no.1 and 2, on 06.06.2013. As per the said Agreement, possession of a developed unit was to be handed over to respondent no.1, within a period of three years, from the said date. It is further stated that after making above payment, respondent no.1, came to know, upon reading a public notice, issued by the Greater Mohali Area Development Authority, published in newspaper dated 03.11.2012 namely "Ajit", that the said project namely "Siswan Paradise", has no legal sanctity. It is further stated that another project marketed by appellant no.1 at Kharar-Banur-Road, SAS Nagar, was also not given any approval/permission by the Competent Authorities. General public was cautioned, not to deal with respondent no.2 and the appellants.
Respondent no.1, to be on the fair side, by writing letters to the Public Information Officer, PUDA Bhawan, SAS Nagar, Mohali, sought information, under the Right to Information Act, 2005, as to whether, project launched by respondent no.1 and marketed by appellant no.1, was approved or not. In response to that communication, respondent no.1 received a copy of letter dated 26.08.2014, written by the Public Information Officer, Main Town Planner, PUDA Bhawan, SAS Nagar, to the Executive Officer (Relations), GMADA, SAS Nagar. In the said letter, information sought by respondent no.1 was answered in the following manner:-
"On the subject matter, it is intimated that not even a single case has been received and dealt with regarding M/s Siswan Paradise Private Limited, SCO No.28-30, Top Floor, Sector 9, Madhya Marg, Near Matka Chowk, Chandigarh, by this Office".
It was specifically stated that at no point of time, any proposal to launch project namely "Siswan Paradise" was received in the office of the Competent Authority. Thereafter, respondent no.1 sent notice to respondent no.2 and the appellants, through registered post, seeking refund of amount paid by him, alongwith interest. When notice sent by him, failed to yield any result, he filed a consumer complaint, bearing no.518 of 2014, seeking refund of the amount deposited, alongwith interest, compensation and litigation expenses.
Upon notice, respondent no.2 and the appellants, put in appearance, through their Counsel Sh.J.S. Rattu, Advocate. However, despite giving number of opportunities, reply and evidence, was not filed on behalf of respondent no.2. Subsequently, none put in appearance, on behalf of respondent no.2, as a result whereof, it was ordered to be proceeded against exparte, by the Forum, on 24.07.2015.
The appellants/opposite parties no.2 and 3 filed their joint written reply, wherein, they admitted that they had been selling/marketing the project launched by respondent no.2. It was denied that any assurance was given to respondent no.1, regarding handing over possession of the unit, within three years, from the date of execution of the Agreement or that basic amenities will be provided at the site, as alleged.
Respondent no.1/complainant led evidence, in support of his case. However, on the other hand, the appellants failed to led evidence, by way of filing affidavit(s) of any competent person/authorized person, in support of the averments, made in their written reply, despite having been granted them, more than four opportunities.
After hearing Counsel for respondent no.1, appellants, and, on going through the evidence and record of the case, the Forum, vide order dated 16.09.2015, granted following relief to respondent no.1:-
"In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The Opposite Parties are jointly and severally directed as under ;-
To refund the amount of Rs.7,10,000/- to the complainant along with interest @ 9% p.a. from the respective dates of deposit till actual payment.
To pay a sum of Rs.1,00,000/- as compensation to the complainant on account of mental tension, agony, harassment.
To pay Rs.11,000/- as litigation expenses.
This order shall be complied with by the Opposite Parties within 45 days from the date of receipt of its certified copy, failing which, it shall be liable to refund the amount of Rs.7.10 lacs to the complainant along with interest @12% p.a. from the respective dates of its deposit till actual payment and compensation amount of Rs.1,00,000/- alongwith interest @ 12% p.a. from the date of this order, till its realization, besides costs of litigation."
Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No. 2 and 3, alongwith application for condonation of delay of 142 days (121 days as per office), and also application for placing on record, copy of the Agreement dated 30.05.2012 (Annexure A-3).
We have heard Counsel for the appellants, on the applications aforesaid, and on the main appeal, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
First coming to the application for placing on record, copy of Agreement dated 30.05.2012 Annexure A-3, executed between respondent no.1 and appellant no.1, it may be stated here that, no doubt, the same was not placed on record, by the appellants before the Forum, however, perusal of the same, reveals that it goes to the root of the case and is necessary for adjudication of the present appeal. As such, the application for placing on record, copy of Agreement dated 30.05.2012 Annexure A-3, as additional evidence is allowed, and the said document is taken on record.
Now coming to the main appeal, Counsel for the appellants, by making reference to the Agreement dated 30.05.2012, (Annexure A-3), referred to above, stated that liability cannot be fastened upon the appellants, as they were engaged only for the purpose of marketing the project, in question. They had received only fixed commission, on the sale proceeds and were not responsible, to provide any other service to respondent no.1. It is further stated that fault, if any, lies with respondent no.2, but ignoring above facts, liability has been wrongly fastened upon them, by the Forum. It is prayed that qua that, the order under challenge be set aside.
At the time of arguments, it is not disputed that qua marketing and selling of units, in the disputed project, appellant no.1 was solely responsible. It is so mentioned in para no.2 (preliminary objections) of the written version, filed by the appellants, before the Forum, wherein, it is specifically admitted that "OP's 2 and 3 were only selling the farm houses at Village Mirzapur meaning thereby the answering OPs were only doing the marketing job".
We have gone through the contents of Agreement dated 30.05.2012 (Annexure A-3) placed on paper book of this appeal, wherein, it is specifically stated that respondent no.2 shall purchase land, obtain requisite permissions/clearances from the Govt. Authorities, qua the said project. It is mentioned in the Agreement that appellant no.1 is a reputed marketing agency. Is it possible that to discharge a very pious obligation/responsibility to sell the unit(s), the appellants will not even ask for permission granted/ approved layout plans, and other details, qua the said project, before they started marketing it.
It is positive case of respondent no.1 that he had purchased the unit in dispute, on showing very rosy pictures of the project, by representative of the appellants. Specifically, the above fact has not been controverted by the appellants. If a marketing agency sells out a project, for which, no approvals/sanctions have been granted by the Govt. Authorities, the said agency has to face the music and consequences of duping the gullible buyers, of their hard-earned money. In the public notice, it has specifically been mentioned by the GMADA that respondent no.2 and appellant no.1 are the sister concern. It is also apparent on record that before appellant no.1 started marketing the project, not even an application has been filed by respondent no.2, to get approval/sanction from the competent authorities, to launch the project. The information supplied vide letter dated 26.08.2014, referred to above, clearly states that not even a single application qua granting sanction to the project, has been received and dealt with, by the Competent Authority. In connivance with each other, the appellants and respondent no.2 committed a criminal offence of cheating. As per established law, builder cannot sell its property, unless and until proper approvals/sanctions have been obtained by it, from the Competent Authorities. It appears from the reading of documents on record that instead of selling a unit in a project, respondent no.2 in a very arbitrary manner, sold its share in a joint land measuring approx. 3807 acres, bearing hadbast No.326, Khewat No.92, Khatauni no.254-352, at Village Mirzapur, District Mohali, Punjab. There is nothing on record that said land was ever partitioned.
Even at the time of arguments, on asking, the appellants have failed to show us, any application filed to get sanction/approval to launch the project and the lay out plan approved by the Competent Authority. If without looking at the copy of sanction letter and approved layout plan, the appellants had started marketing the project, fault lies with them. They, alongwith respondent no.2, are clearly responsible for the fraud committed, with the general public. As such, no ground, whatsoever, has been made out, to reverse findings of the Forum.
No other point, was urged, by Counsel for the appellants.
In view of the above discussion, it is held that the order passed by the Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the Forum is upheld.
Since the appeal filed by the appellants has been dismissed, at the preliminary stage, as such, the application filed by them, for condonation of delay aforesaid, is also dismissed, being rendered infructuous. The application stands disposed off, accordingly.
Certified copies of this order, be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
09.02.2016 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Gp