National Consumer Disputes Redressal
Raj Kumar vs Taneja Developers & Infrastructures ... on 21 December, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 400 OF 2014 (Against the Order dated 13/12/2013 in Complaint No. 79/2012 of the State Commission Punjab) 1. RAJ KUMAR S/O. SH. RAM PRAKASH VILLGAE: BAGUWAL, POST OFFICE: CHANDIANI-KHURD, TEHSIL: BALACHHAUR,DISTRICT: NAWANSHAHR, PUNJAB144525 ...........Appellant(s) Versus 1. TANEJA DEVELOPERS & INFRASTRUCTURES LTD. & ANR. (THROUGH THE MG. DISRECTOR/PRINCIPAL OFFICER) REGD. OFFICE AT:9, KASTURBAA GANDHI MARG, NEW DELHI-110001 2. TANEJA DEVELOPERS & INFRASTRUCTURE LTD., (THROUGH: THE MANAGER), NEAR BALANGI, KHARAR-CHANDIGARH, MOHALI (PUNJAB) ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE A. P. SAHI,PRESIDENT
FOR THE APPELLANT : FOR THE APPELLANT : MR. AVADH KAUSHIK, ADVOCATE
MR. PRATEEK GOYAL, ADVOCATE FOR THE RESPONDENT : FOR THE RESPONDENTS : MR. ANKIT KHERA, ADVOCATE
Dated : 21 December 2023 ORDER
1. Heard learned counsel for the parties.
2. This appeal arises out of an order passed by the Punjab State Consumer Disputes Redressal Commission at Chandigarh (hereinafter referred to as the State Commission) whereby the complaint of the appellant/complainant (hereinafter referred to as the complainant) has been disposed of by extending the relief of refund of an amount of Rs.16,25,000/- together with 9% interest vide order dated 13.12.2013.
3. The grievance of the complainant is that he had not sought any relief for refund as has been awarded by the State Commission, and as a matter of fact had sought the relief of possession of a plot of land which had been registered in accordance with the offer made to the complainant by the opposite party no.1.
4. The complainant has preferred this appeal contending that in the absence of any such prayer made, the State Commission committed an error of jurisdiction in proceeding to award refund instead of directing delivery of possession of the plot which had been negotiated on a consideration and the amounts that were paid as consideration by the complainant thereafter.
5. On the issue of the amount that was awarded, a correction application was moved by the opposite party no.1 before the State Commission being Miscellaneous Application No. 105 of 2014 that rejected as not maintainable vide order dated 23.05.2014.
6. The claim was about a plot of 250 sq. yards which is stated to be bearing registration no. MPP-10552. This plot admittedly was initially allotted to one Mr. Rahul Mehndiratta. It appears that the said allottee had agreed to transfer his registration in favour of the complainant for which an application was moved by the complainant, and a copy of the communication received from the opposite party no.1 on the said application has been filed on record. It remains undisputed that the opposite party no.1 confirmed the documents for registration in the name of the complainant in respect of the said plot. The letter dated 18.01.2006 is stated to have been incorrectly typed the year as 2006 whereas in fact the said application is dated 18.01.2008. The fact of having received the said application has been certified by a stamped document which is Annexure C-7.
7. The complainant alleges that the said negotiation was made through one M/s Nirgun Real Estates Pvt. Ltd. who according to the complainant were acting as agent/brokers of the opposite party no.1. The contention of the complainant is that a sum of Rs.5,40,000/- had been transacted through M/s Nirgun Real Estates Pvt. Ltd. for which the complainant claims to have received a receipt, copy whereof has been filed as Annexure A-2. The said receipt is dated 23.05.2008, however, does not mention the name of M/s Nirgun Real Estates Pvt. Ltd. and it bears a signature which is a hand written receipt. It may be mentioned at the outset that the said transaction has been completely denied by the opposite party no.1 and no such amount is stated to have been received by the opposite party no.1 for the transfer of the said plot in favour of the complainant.
8. The registration for the said plot is admitted to the opposite party no.1 in favour of Mr. Rahul Mehndiratta from whom they had received certain amount. This also now stands confirmed with the confirmation letter issued to the complainant.
9. Apart from this, another receipt of Rs.2,06,250/- is admitted to have been issued to the complainant by the opposite party no.1, followed by a simultaneous receipt of Rs.1,00,000/- being transfer charges. The former receipt is described against some instalment and extra developmental charges.
10. Thus so far as the consideration amount as referred to above is concerned, it is admitted for which receipts have been issued by the opposite party no.1 but the sum of Rs.5,40,000/- paid to M/s Nirgun Real Estates Pvt. Ltd. has been denied.
11. There is yet another transaction with M/s Nirgun Real Estates Pvt. Ltd. which is a demand draft of Rs.4,87,500/- which is also denied by the opposite party no.1 stating that no such amount was either received by them or on their behalf and such consideration was never transferred to them. It is therefore submitted that the amount of Rs.5,40,000/- and Rs.4,87,500/- alleged to have been given to M/s Nirgun Real Estates Pvt. Ltd. never passed on or was tendered to the opposite party no.1. Consequently, in result the amount which is admitted to have been received by the opposite party no.1 from the complainant is only to the tune of Rs.6,93,750/-.
12. The contention of the complainant is that the consideration having passed on to the opposite party no.1 in respect of the registration of the very same plot therefore establishes the fact of the plot having been negotiated by the opposite party no.1 in favour of the complainant.
13. The opposite party no.1 on the other hand, apart from having received the amount of Rs.6,93,750/- as referred to above, came up with a case before the State Commission that since the complainant failed to make the balance of the deposits, the registration of the plot came to be cancelled on 06.08.2009. A copy of the cancellation letter was placed on record before the State Commission. The complainant denied having received the letter of cancellation.
14. The State Commission after having considered the facts and the evidence filed on record came to the conclusion that the payment of Rs.16,25,000/- had passed on and therefore ordered refund of the said amount instead of extending the relief of possession. The State Commission also recorded a finding in respect of the contention raised about the cancellation of the registration by the opposite party no.1. This finding was recorded on the basis of evidence that was adduced by the complainant, including a certificate from the concerned Post Office, indicating that no such letter or envelope had been either received or delivered to the complainant from the opposite party no.1. Thus, on these two findings the complaint was allowed in the terms as referred to above.
15. It is undisputed that no appeal has been filed questioning the correctness of the order passed by the State Commission or otherwise by the opposite party no.1, and, as a matter of fact, a compilation dated 12.07.2023 has been moved, stating it to be a cross-objection. It may be clarified at the outset that there is no such provision for a cross-objection being entertained in an appeal filed under the Consumer Protection Act, 1986 and even otherwise the provisions of CPC are not applicable except to the extent as provided for. Thus, a cross-objection of this nature cannot be a substitute for questioning the correctness of the findings or otherwise which had been recorded insofar as the opposite party no.1 is concerned.
16. Nonetheless, on the basis of the grounds that have been raised by the present appellant/complainant, it is evident that there was no relief claimed by the complainant for refund of the amount paid as consideration. Even otherwise, unless any such deficiency in service and consequential relief is claimed, the State Commission could not have converted the complaint as a suit for recovery of an amount when the only relief prayed is for possession.
17. However, so far as the issue of the cancellation of the plot is concerned, the finding recorded by the State Commission to the said extent cannot be interfered with, and even otherwise the same having been established on the basis of evidence, and not having been challenged by the opposite party no.1 through any appeal, that operates as res-judicata against the opposite party no.1. Thus, the cancellation of the registration of the plot is not found to be justified and to that extent the impugned order deserves to be upheld.
18. Coming to the issue of the quantum as calculated by the State Commission, suffice it to say that an application was moved by the opposite party no.1 as referred to above for correction of the amount but the same was rejected vide order dated 23.05.2014 after having noticed the said facts on the ground that a review was not permissible. The order dated 23.05.2014 is extracted hereunder:-
"This application has been filed by the applicants/opposite parties, seeking correction of the arithmetical error cropped up in the order dated 13.12.2013 passed by this Commission in Consumer Complaint No. 79 of 2012.
2. It was submitted that while passing the order, directions were issued by this Commission to the opposite parties to refund an amount of Rs.16.25 lacs, which was deposited by the respondent/complainant with the opposite parties, along with interest @ 9% p.a. from the date of deposit till realization. It has been contended by the applicants that the complainant made a payment of Rs.4,87,500/- in July, 2008 and further paid a sum of Rs.5.40 lacs in cash on 28.05.2008. It has been further mentioned in Para-3 of the order that the complainant further paid Rs.2,06,250/- on 18.07.2008 and Rs.1.00 lac as transfer charges on the same date. If the version of the complainant as noticed in Para-3 is taken as correct, then he has made a total payment of Rs.13,33,750/-. In Para-4 of the order, it has been further noticed by this Commission that the complainant handed over three cheques for a sum of Rs.11,81,250/- on 14.08.2010, but the said cheques were not presented by the opposite party company. In Paras-7, 8 & 9 of the order, this Commission had recorded that the Predecessor-in-Interest of the complainants Sh. Rahul Mehndiratta had made the deposit of Rs.3.00 lacs towards registration and Sh. Rahul Mehndiratta further made payment of Rs.1,87,400/- on 03.05.2008. He made a deposit of Rs.2,06,250/- in order to follow the payment schedule. In this manner, a total sum of Rs.6,93,750/- was paid by the complainant and his Predecessor-in-Interest towards the sale consideration of the plot. Through this application, a prayer has been made to rectify the figure of Rs.16.25 lacs as referred in Paras-15 & 16 of the order dated 13.12.2013, by replacing it with the figure of Rs.6,93,750/-.
3. Notice of this application was given to the respondent/complainant, who appeared and filed reply and argued that the correction sought by the applicants is not an arithmetical error. The case was adjourned on 09.05.2014 to reconcile amongst parties, the amount which was refundable to the complainant. However, after hearing the arguments of both the counsels for the parties, it was found that both the parties have different views. Therefore, the correction sought for by the applicants cannot be termed as arithmetical error. In fact, through this application, the applicants/opposite parties want that the order of this Commission be reviewed. However, this Commission has no power to review its own order.
4. The Hon'ble Supreme Court in its decision in case "Rajeev Hitendra Pathak & Ors. Vs Achyut Kashinath Karekar & Anr.", 2011 (4) RCP (Civil)-175 settled the law, by observing in para-38 as follows:
"In our considered opinion, the decision in Jyotsana's case laid down the correct law and the view taken in the later decision of this Court in New India Assurance Co. Ltd. is untenable and cannot be sustained."
5. The Hon'ble Supreme Court in para-39, while disposing the said Civil Appeal No. 4307 of 2007, observed as follows:-
"In view of the legal position, in Civil Appeal No. 4307 of 2007, the findings of the National Commission are set aside as far as it has held that the State Commission can review its own orders. After the amendment in Section-22 and introduction of Section 22A in the Act in the year 2002 by which, the power of review or recall has vested with the National Commission only."
6. In view of the above discussion, the application filed by the applicants/opposite parties is without any merit and the same is dismissed. No order as to costs."
19. A perusal of the aforesaid order would leave no room for doubt that the calculations made had been clearly objected to and which have again been objected to by the opposite parties before this Commission.
20. Before adverting to the said calculation, it will be necessary to deal with the allegation of the complainant regarding the alleged payments made to M/s Nirgun Real Estates Pvt. Ltd. The said payments admittedly have been tendered either by cash or through demand draft to M/s Nirgun Real Estates Pvt. Ltd. Learned counsel for the opposite party no.1 is correct in his submission that any such relief insofar as the amount negotiated with M/s Nirgun Real Estates Pvt. Ltd. is concerned, in the absence of its transfer to the opposite party no.1, could not have been raised or even accepted without impleading M/s Nirgun Real Estates Pvt. Ltd. in the complaint itself. Thus, M/s Nirgun Real Estates Pvt. Ltd. was a proper and necessary party in order to determine as to whether the said payments had actually passed on consideration to the opposite party no.1. No evidence or affidavit of M/s Nirgun Real Estates Pvt. Ltd. or on its behalf was introduced to prove the said transaction. In the absence of any such attempt having been made, the argument of the learned counsel for the opposite parties to that extent has to be accepted and any payment alleged to have been made to M/s Nirgun Real Estates Pvt. Ltd. could not have been included for the purpose of calculation by the State Commission and therefore the State Commission has committed an error in proceeding to do so.
21. Coming to the application which was moved before the State Commission for correcting the error, it is evident that even though the said application was moved as an application for correction, yet the issue of review was discussed by the State Commission as per the law as it then stood. Nonetheless, as indicated above, the error has crept in not because of a sheer miscalculation but because of an incorrect inclusion of the amount that was transacted through M/s Nirgun Real Estates Pvt. Ltd. Consequently, this appeal therefore deserves to be allowed in part to the above extent while upholding the passing of the consideration money of Rs.6,93,750/- to the opposite party no.1.
22. Apart from this, the conduct of the opposite party no.1 in having accepted the amount and having set up a case of cancellation of the plot which was found to be false, clearly amounts to an unfair trade practice, as the amount of Rs.6,93,750/- had admittedly passed on to the opposite party no.1 but possession of the plot was not delivered to the complainant. The fact that no formal agreement was entered into cannot be of any consequence while dealing with the issue of unfair trade practice, inasmuch as the fact of having a plot allotted to the complainant on transfer of the registration is established on record. There is a clear deficiency in service, inasmuch as the negotiations were snapped by the opposite party no.1 by adopting an illegal cancellation dated 06.08.2009 that was never communicated to the complainant.
23. Learned counsel for the complainant urges that no response seems to have been given with regard to the payment made through M/s Nirgun Real Estates Pvt. Ltd. that has been clearly stated in para-3 and 4 of the complaint. This argument does not hold water in view of para-3 and 4 of the reply submitted by the opposite party no.1 but nonetheless the opposite parties themselves having issued receipts for the amounts referred to hereinabove and having negotiated the registration of one plot with the complainant, they fell in deficiency in service by not delivering the plot to the complainant. The State Commission also committed an error in extending the benefit of refund instead of possession of the plot to which the complainant was entitled.
24. Consequently, the appeal is partly allowed in the aforesaid terms. The opposite party no.1 is directed to receive the balance amount of the payment from the complainant together with 9% interest on the balance of the amount from the due date upto the date of cancellation i.e. 06.08.2009 which shall be paid by the complainant to the opposite party no.1 and the opposite party no.1 shall accordingly within a period of three months execute the deed of conveyance in respect of the plot in question that was registered in favour of the complainant.
.........................J A. P. SAHI PRESIDENT