State Consumer Disputes Redressal Commission
M/S Panache Infra vs Bandna Devi on 2 February, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 39 of 2016 Date of Institution 27.01.2016 Date of Decision 02.02.2016 M/s Panache Infra, through its Partner, having Office at SCO No. 34-35-36-37, Second Floor, Cabin 201-A, Sector 9-D, Chandigarh (Old Address), now having office at SCO No.156-160, 2nd floor, Cabin No.226, Sector 8-C, Chandigarh. 2. Tarun Vats, Partner, M/s Panache Infra, having office at SCO No. 34-35-36-37, Second Floor, Cabin 201-A, Sector 9-D, Chandigarh (Old Address), now having office at SCO No.156-160, 2nd floor, Cabin No.226, Sector 8-C, Chandigarh. 3. Amit Chugh, Partner, M/s Panache Infra, having office at SCO No. 34-35-36-37, Second Floor, Cabin 201-A, Sector 9-D, Chandigarh (Old Address), now having office at SCO No.156-160, 2nd floor, Cabin No.226, Sector 8-C, Chandigarh. .....Appellants/Opposite Parties. Versus 1. Bandna Devi wife of Sh.Naresh Kumar Barwal, permanent resident of House No.52/1, Village Pleta, Post Office Manjhoti, District Kangra (Himachal Pradesh) and presently residing at House No.258, Sector 2, District Panchkula (Haryana) - 134109. 2. Poonam Kumari wife of Sh.Manohar Lal, permanent resident of House No.52/1, Village Pleta, Post Office Manjhoti, District Kangra (Himachal Pradesh) and presently residing at House No.258, Sector 2, District Panchkula (Haryana) - 134109. ......Respondents/Complainants. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:
Sh.Inderdeep Singh, Advocate for the appellants PER PADMA PANDEY, MEMBER This appeal has been filed by the Opposite Parties, against the order dated 21.12.2015, rendered by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the Forum only), vide which, it allowed Consumer Complaint No.159 of 2015, filed by the complainants, with the following directions: -
"10. In the light of above observations, we are of the concerted view that the Opposite Parties are deficient in rendering proper service to the complainants and indulged in unfair trade practice. Hence, the present complaint of the Complainants deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are, jointly & severally, directed:-
i) To refund the amount of Rs.9,00,000/- to the complainants alongwith interest @12% per annum from the respective dates of deposit till realization.
ii) To make payment of Rs.1,00,000/- to the complainants towards compensation for causing mental and physical harassment.
iii) To make payment of Rs.25,000/- to the complainants as litigation expenses.
11. This order shall be complied with by the Opposite Parties within one month from the date of receipt of its certified copy; thereafter, the Opposite Parties shall pay the amount at Sr. No.(ii) above with interest @ 12% per annum from the date of filing of the complaint till realization, besides complying with directions at Sr. No.(i) and (iii) above."
2. The facts, in brief, are that Opposite Parties No.2 and 3 approached the complainants and told that they launched/floated a scheme, under which, the complainants would invest Rs.7,25,000/- and the said amount would be used to develop agricultural land measuring 525 sq. yards i.e. unit. It was also assured that if the aforesaid amount of Rs.7,25,000/- made by the complainants then the Buy Back Agreement would be executed under the scheme, under which, the complainants would get within 12 months from the date of Buy Back Agreement a total sum of Rs.9 lacs and post-dated cheque of Rs.9 lacs would be handed over to the complainants at the time of Buy Back Agreement or Registry, Sale Deed of the unit, in favour of the complainants. On acting upon the abovesaid assurances made by the Opposite Parties, the complainants booked a unit measuring 525 sq. yards by investing a total sum of Rs.7,25,000/- in the scheme of the Opposite Parties on the various dates ranging from 02.05.2013 to 19.07.2013. Buy-Back Agreement (Annexure C-1) was also executed between Opposite Party No.1 and the complainants on 29.06.2013. It was stated that the Opposite Parties issued two post-dated cheques, each amounting to Rs.4,50,000/- i.e. one in favour of complainant No.1 and another in favour of complainant No.2, as a security for the aforesaid deposited amount and assured return. It was further stated that due to insufficiency of funds, the Opposite Parties requested the complainants not to present the aforesaid cheques for clearance. Thereafter, Addendum Agreement (Annexure C-2), to the Buy Back Agreement, was executed between the parties, whereby, they in discharge of their legal liability, issued as many as six cheques of small amounts and took back the original Buy Back Agreement from the complainants and the same had not been returned back to them, till date. Thereafter, the complainants presented the aforesaid cheques for encashment, but the same were dishonoured by the bank of Opposite Parties with the remarks "Payment Stopped by Drawer". Photocopies of the said cheques and cheque returning memos are Annexure C-3 and C-10. Pursuant to the dishonour of the cheques issued by the Opposite Parties, the complainants served the Opposite Parties with statutory notice under Section 138 of the Negotiable Instruments Act, but despite of service of notice on the Opposite Parties, they failed to make the payment of even a single penny. It was further averred that the complainants visited the office of the Opposite Parties number of times for the redressal of their grievance, but to no avail. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (in short the "Act" only), was filed.
3. In their written statement, the Opposite Parties, stated that the complainants invested an amount of Rs.7,25,000/- for investment purposes only and was promised that either an appreciated amount would be returned back to them or they would be given a piece of agriculture land measuring 525 sq. yard and the sale deed would be executed in their favour. It was pleaded that the complainants were given a security cheque of Rs.9 lacs and this deal was purely commercial in nature and there was no Consumer-Seller relationship. It was further pleaded that there was no occasion for the complainants to encash the said security cheque, as the Opposite Parties told them that they wanted to exercise the option to execute the sale deed and not interested in paying back the appreciated return, as per the Agreement but they requested for grant of time, as they did not want to get the sale deed executed and willing to wait if the property market improves, so that they can directly be benefitted on the appreciation on their investment, as the same was made for the purpose of free sale. It was averred that the complainants insisted for return of amount because on account of crisis in the property market and it would be very difficult to resell the land. It was admitted that the cheques were renewed being rendered useless due to expiry of time. It was asserted that all this was done to facilitate the complainants for not getting the sale deed executed, as per the terms of the Agreement. It was further pleaded that there was no occasion for the complainants to present the cheques, since as per the terms of the Agreement dated 29.6.2013, the Opposite Parties were always willing and ready to execute the sale deed. The cheque was never issued to be presented, as it was merely a security cheque and could have been encahsed only on the option of the Opposite Parties, in case, they would have refused to execute the sale deed. It was further asserted that the Opposite Parties never received any alleged notice under Section 138 of the Negotiable Instruments Act. Therefore, the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.
4. The complainants, filed rebuttal by way of affidavit to the written statement filed by the Opposite Parties, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.
5. The parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the Forum, allowed the complaint, vide the impugned order, as stated above.
7. Feeling aggrieved, the Opposite Parties, filed the application for condonation of delay of 3 days in filing the appeal alongwith the instant appeal.
8. We have heard the Counsel for the appellants, on the application, aforesaid, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellants/Opposite Parties submitted that the Forum did not consider the real fact regarding that the respondents/complainants are not consumer under Section 2-D of the Consumer Protection Act, 1986. He further submitted that the appellants were always willing and ready to execute the sale deed in favour of the complainants as per the terms of the Agreement dated 29.06.2013 and due to fall in the prices of property, the complainants were adamant on encashing the security cheque, whereas, it has been clearly mentioned in the Agreement that the post-dated cheque(s) issued are only security cheque/s, which can be encashed only, if the appellants do not execute the registration or chooses to return back the appreciation amount and not to execute the sale deed. He further submitted that at present moment, the Opposite Parties are ready and willing to do so. He further submitted that at one hand, the respondents/complainants filed this consumer complaint knowing well that there is no consumer relation between the appellants and the respondents and on the other hand, they filed the complaint under Section 138 of N.I.Act in order to recover the same amount and they cannot avail the two remedies at the same time for the same very cause as it is not permissible under the law. He prayed for allowing the appeal and setting aside the impugned order.
10. After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded, hereinafter.
11. The first question, that falls for consideration is, as to whether, the Forum rightly held that the complainants fell within the definition of consumer? The Counsel for the appellants/Opposite Parties submitted that as per the Buy Back Agreement dated 29.06.2013, the complainants are investors, who are investing in the project for profit and, as such, they did not fall within the definition of 'consumer' as per Section 2(d) of the Consumer Protection Act, 1986. However, the complainants have specifically stated in para No.3 of their complaint that they were living in a rented accommodation and had meagre source of income, thought of to invest hard earned money saved over a period of time in the scheme launched by the Opposite Parties. It is the admitted fact that under the buyback option, the complainants were to get assured return of Rs.1,75,000/-. The said fact also mentioned in the preliminary objection of the reply filed by the Opposite Parties. The Forum rightly stated that in these set of circumstances, there was nothing speculative about the same. Further, it was also stated in the Buyback Agreement dated 29.06.2013 to the extent that Promoters/Opposite Parties will give assured return of 24.138% per annum to the investors. Even, no evidence was produced by the Opposite Parties that the complainants are property dealers, who deals in the sale and purchase of the property, and, as such, they purchased the unit, in question, for the purpose of investment, with a view to resell the same, as and when, there is escalation, in the prices of real estate. So, we are of the view that the Forum rightly relying upon the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, as mentioned in para No.7 of the impugned order i.e. Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. & Ors., Consumer Case No.137 of 2010, 145 of 2010 and 146 of 2010, and the Forum rightly held that buy back option is the service and the complainants fell within the definition of a consumer.
12. The next question, that falls for consideration, before us, is, as to whether the cheques issued by the Opposite Parties to the complainants were in the nature of security cheques and were not entitled to be encashed? The appellants/Opposite Parties duly attached Buy Back Agreement, which was executed between the parties, on 29.06.2013 as Annexure A-1. A bare perusal of the said Agreement clearly reveals that at point No.(6) of the said Agreement, it is clearly mentioned that after 1 year, investor will have the choice to present the cheque in the bank and terminate this Agreement. In this case, the Opposite Parties failed to get the registration of the unit in favour of the complainants, they took back the original Agreement and issued fresh cheques of small amounts, after taking back the cheques originally issued amounting to Rs.4,50,000/- in favour of each complainant. Even, Addendum Agreement (Annexure C-5) was executed between the parties and cheques of Rs.4,50,000/- each were replaced with the cheques of small amounts. The Forum rightly held that it was clearly written in the above Agreement that "Above parties (both) can take Legal action if these fresh Cheques are not honoured and promoter agrees to bear all bank charges and Legal cost incurred if any". In these circumstances, we are of the view that the Forum rightly held that it is safe to infer that under buyback scheme of the Opposite Parties, the complainants were entitled to encashment of above said cheque. Thus, the order of the Forum, being legal and valid, is liable to be upheld.
13. The order passed by the Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.
For the reasons recorded above, the appeal, filed by the appellants/Opposite Parties, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs and consequently, the application for condonation of delay is also dismissed being rendered infructuous. The order of the Forum is upheld.
15. Certified Copies of this order be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion.
Pronounced.
02.02.2016 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER rb