State Consumer Disputes Redressal Commission
Ajay Goel vs R.K. Singh & Anr. on 23 December, 2009
H H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION, SHIMLA. Appeal No. 195/2008. Date of Decision 23.12.2009. In the matter of: Sh. Ajay Goel, Proprietor Shimla Goel Properties, Ram Bazaar, Shimla. Appellant. Versus 1. Sh. R.K. Singh S/o Sh.Mahajan, New Dev Niwas, Engine Ghar, Sanjauli, Shimla, HP. 2. Sh. T.C. Janarta, Managing Director, Food & Civil Supply Corporation Office SDA Complex Kasumpti, Shimla, HP. Respondents. For the Appellant.: None. For the Respondent No.1: Mr. J.L. Sharma, Advocate. For the Respondent No.2: None. Appeal No. 193/2007 Sh. T.C. Janarta, Managing Director, Food & Civil Supply Corporation Office SDA Complex Kasumpti, Shimla, HP. Appellant. Versus 1. Sh. R.K. Singh S/o Sh.Mahajan, New Dev Niwas, Engine Ghar, Sanjauli, Shimla, HP. 2. Sh. Ajay Goel, Proprietor Shimla Goel Properties, Ram Bazaar, Shimla. Respondents. For the Appellant.: None. For the Respondent No.1: Mr. J.L. Sharma, Advocate. For the Respondent No.2: None. Honble Mrs. Saroj Sharma, Member. Whether approved for reporting? O R D E R
Per Mrs. Saroj Sharma, Member.
This order shall dispose of the both these appeals as the same have arisen out of the same order dated 7.8.2006, in Consumer Complaint No. 1167/2000 passed by District Forum, Shimla, titled as R.K. Singh Vs. Shri Ajay Goel & Anr.
2. Brief facts as stated in the complaint are, that the respondent paid Rs. 50,000/- as consideration to the present appellant-Ajay Goel for the purchase of a flat, description whereof is given in the complaint.
The money was received by the appellant for the purpose being paid to respondent-T.C. Janartha as he was the owner of the property which was to be sold to respondent No.1. As the present appellant is dealing in properties, so he used to take commission for getting the property sold. In this case also Rs. 50,000/- were received by him which fact has not been denied. Since the agreed flat was not given to the respondent-R.K. Singh and was sold to someone else, so the respondent No.1 filed the consumer complaint before the District Forum below for getting Rs. 50,000/- back alongwith interest etc.
3. I have heard learned counsel for the parties, as well as have gone through the record of the case file. The stand taken by learned counsel for the appellant is, that the appellant took Rs. 50,000/- from the respondent No.1-RK. Singh and handed over the said money to Shri T.C. Janartha who is respondent No.2 in the present appeal and owner of the property for which Rs. 50,000/- as part payment was taken by him being the commission agent. However, the agreement was signed by respondent No.2 only and not by respondent No.1. Per him, his client is not liable to pay anything to respondent No.1 as the money was paid to respondent No.2 and his client did not keep anything with him. As such his client is not liable for any payment and his appeal be accepted by setting aside the impugned order qua his liability. Though the learned counsel for the appellant is not present today, but I have considered the stand taken by him in the pleadings on behalf of the appellant.
3. Per stand taken up by learned counsel for the respondent No.2 in the pleadings, there is no agreement between respondent No.1 and 2. Further contention of the learned counsel for the respondent No.2 is that there was no privity of contract between respondent No.1 and 2 by which the liability of his client can be ascertained. Another point raised by him is, that the complaint was not amended and no relief has been claimed against T.C. Janartha. Further stand taken up by him in the pleadings is that no money was paid by respondent No.1 to respondent No.2. Further according to him the respondent No.1 does not fall within the ambit of consumer, therefore the Foras under the Consumer Protection Act, 1986 lacks jurisdiction to decide the present complaint.
Another point taken up by him is, that Annexure C is an agreement to sell which cannot be enforced under law as the same has not been signed by respondent No.1. He further argued that remedy with the respondent No.1 is to go to the civil court and file suit for specific performance of the contract. The matter is of civil nature and the same cannot be adjudicated upon by the District Forum below. The money was paid to the appellant who is a third party and no money was paid to respondent No.2. There is no privity of contract between respondent No.1 and 2 and as such he prays for acceptance of the appeal.
4. Arguments put forth by Mr. J.L. Sharma learned counsel for respondent No.1 are, that there is no infirmity in the order passed by District Forum below. The money was paid by his client to the appellant who being the agent of respondent No.2, accepted the money and the flat was not given to respondent No.1.
Thus there was deficiency in service for which he argued that the money paid by his client may be refunded back to him with interest as well as he may be adequately compensated.
5. After hearing the arguments put forth by learned counsel for the parties, one thing is definite that amount of Rs. 50,000/- was paid by respondent No.1 to the appellant which fact has been admitted by the appellant in his reply to the complaint. Another proof of payment of Rs. 50,000/- is AnnexureA-1 which is the receipt duly signed by the appellant which shows that the money was received by the appellant. The explanation given is that the money was received in the capacity of a commission agent and the same was given to the respondent No.2 who was the owner of the property agreed to be sold. The stand taken by respondent No.2 is, that he never received the money, nor there was any privity of contract as the agreement was not signed by respondent No.1.
However this argument of respondent No.2 is not much convincing because the agreement which is Annexure C is signed by T.C. Janartha who is respondent No.2 in this appeal, as well as by Ajay Goel who is the present appellant. In the face of this agreement, it does not matter whether the same has been signed by respondent No.1 or not. It is admitted by respondent No.1 that the sale of property was agreed by the parties and in pursuance to that an amount of Rs. 50,000/- was paid by respondent No.1 to the appellant. There is force in the argument raised by learned counsel for respondent No.1. Had there been nothing between appellant and respondent No.2, then what was the reason for appellant and respondent No. 2 to sign Annexure C. There is no explanation to this effect. This clearly shows that the money was received by the appellant as agent of respondent No.2 who signed Annexure C for selling the property for which Rs. 50,000/- was received by the appellant.
6. Therefore this Commission is of the view that the appellant and respondent No.2 are deficient in rendering service to respondent No.1 who neither sold the agreed property to him, nor they refunded the amount received as consideration for the same.
7. No other point was urged.
In view of the above findings it is held that the present dispute is a consumer dispute, there is privity of contract between the parties, i.e. the appellant and respondent No.2 who have committed deficiency in service. This Commission has no hesitation to hold that the District Forum has rightly allowed the complaint by directing the appellant, as well as respondent No.2 jointly and severally to refund Rs. 50,000/- to the respondent No.1 alongwith interest @ 9 per annum as per order dated 7.8.2006 alongwith litigation cost amounting to Rs. 2,000/- alongwith other relief whatever given. This Commission does not find any reason to interfere with the impugned order passed by the District Forum below, therefore, the impugned order is upheld and both these appeals are hereby dismissed, leaving the parties to bear their own costs.
All interim orders passed from time to time in these appeals shall stand vacated forthwith.
Office is directed to place an authenticated copy of this order on the file of Appeal No. 193/2007.
Learned counsel for the respondent No.1 has undertaken to collect copy of this order from the Court Secretary free of cost as per rules, and office is directed to send the same in the like manner to the appellant as well as respondent No.2.
Shimla, December 23, 2009.
/Karan/ (Saroj Sharma) Member.