State Consumer Disputes Redressal Commission
Dr. G.S. Kochhar vs Jaspal Singh on 13 July, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T.,
CHANDIGARH
Complaint Case No.
:
74 of 2011
Date of Institution
:
24.11.2011
Date of Decision
:
13.07.2012
1. Dr. G.S. Kochhar, R/o House
No.3024, Sector 21D, Chandigarh.
2. Mrs. Kanwaljit Kochhar, R/o
House No.3024, Sector 21D, Chandigarh.
..Complainants
Versus
1. Jaspal Singh, R/o House
No.3155, Paradise Society, Sector 50D, Chandigarh.
2. Arvinder Singh, S/o Shri Bhan
Singh, R/o House No.1115, Phase-V, Mohali.
2nd Address
Arvinder Singh, S/o Shri Bhan Singh
(Property Dealer) O/o H.M. No.548, Phase-VII, Mohali.
3. Chairman of Puncham Cooperative
House Building Society Ltd., Sector 68, Mohali, (Through its Manager)
Complaint under Section 17 of the Consumer Protection
Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (Retd.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER.
Argued by: Col. Mohan Singh Ghuman, Advocate for the complainants.
Sh. Pankaj Chandgothia, Advocate for Opposite Party No.1.
Sh. Gagandeep Toni, Advocate for Opposite Party No.2.
Opposite Party No.3, already exparte.
PER JUSTICE SHAM SUNDER (Retd.), PRESIDENT
1. The facts, in brief, are that the complainants, in an effort to purchase a flat, at Mohali, came into contact with the property dealer Shri Arvinder Singh of Royal Property, H.M. No.548, Phase VII, Mohali (Opposite Party No.2), who offered HIG flat measuring 1410 sq. ft, in Puncham Cooperative House Building Society Ltd., Sector 69, Mohali, for sale to them (complainants), stating that he had, in advance, booked the said flat, belonging to one Shri Jaspal Singh Johar i.e. Opposite Party No.1. It was further stated that Opposite Party No.2, entered into agreement to sell, with the complainants, on 11.11.2004, in respect of the property, in dispute, and membership of Opposite Party No.1. The sale price of the flat was fixed at Rs. 15.50 lacs, with sale price of the membership at Rs.2,17,000/-. It was further stated that the complainants, paid full sale consideration amount for the said HIG flat, as well as the membership fee, as per the details given in paragraph no.4 of the complaint. Opposite Party No.1, executed General Power of Attorney, in favour of the complainants, in respect of the said flat, and the same was registered in the office of the Sub Registrar, Mohali, on 15.03.2005. It was further stated that Opposite Party No.1, gave two affidavits for sale/transfer of his membership no.635, and other rights, in favour of the complainants. He also stated, in these affidavits, that his membership no.635, was free from all encumbrances, and that the sale of membership shall not be revoked. It was further stated that the complainants, after making full payment of Rs.17,67,000/-, for the purchase of flat, in question, and membership number 635, approached the Puncham Cooperative House Building Society Ltd., i.e. Opposite Party No.3, for possession of the said HIG flat.
2. It was further stated that the complainants were bewildered to know that Opposite Party No.1, was not shown as owner of any HIG Flat, in the records of Opposite Party No.3, and he (Opposite Party No.1), had not even cleared his dues, against the membership number 635. It was further stated that the complainants, thus, came to know that Opposite Party No.1, gave a false affidavit to them, stating therein, that his membership number 635, was free from all encumbrances. It was further stated that Opposite Party No.1, in connivance with Opposite Party No.2, sold his membership no.635, for Rs.2,17,000/-, to the complainants, for the HIG flat, in question, which was never ever owned by Opposite Party No.1. It was further stated that Opposite Party No.2, received an amount of Rs. 10 lacs, from the complainants, for the sale of HIG flat, which never existed in the records of Opposite Party No.3, nor the ownership of such flat vested in the name of Opposite Party No.1. It was further stated that Opposite Party No.3, was paid Rs.5,50,000/-, by the complainants, and how that amount had been adjusted, in the records of Opposite Party No.3, was a mystery, in the absence of transfer/possession of HIG flat, to the complainants. It was further stated that the complainants, visited the Opposite Parties, a number of times, and made numerous phone calls, to finalize the said deal, but to no avail. A legal notice dated 21.12.2010, was got served by the complainants, upon the Opposite Parties, to settle the matter amicably, but the same yielded no result. Ultimately, the complainants, after getting fed up with the false promises of the Opposite Parties, and unscrupulous designs, got registered FIR No.94 dated 27.07.2011, with Police Station Mohali, but the investigation, in the matter, has not yet been completed. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 12 (infact Section 17) of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties, to refund the amount of Rs.17,67,000/-, alongwith interest @18% .p.a., from the date of receipt of the same i.e. 11.11.2004; pay compensation to the tune of Rs.50,000/- for mental agony and physical harassment; pay Rs.10 lacs towards the price of escalation of the flat; and pay Rs.10,000/- as cost of litigation.
3. Opposite Party No.1, in his written version, stated that the complaint, was not maintainable, against him, under the Act, as there was no relationship of consumer and service provider/dealer, between him and the complainants. It was further stated that according to the complainants, Opposite Party No.1 sold his membership rights to the complainants and accordingly, he (Opposite Party No.1) gave General Power of Attorney, in their favour. It was further stated that Opposite Party No.1, was restricted only to these two events, and nothing more, and the deal, if any, regarding the sale of flat was entered into between Opposite Party No.2 and the complainants. It was further stated that the transactions being complained of specifically fell under the provisions of Transfer of Property Act, and Specific Relief Act and, as such, the Consumer Complaint was not maintainable. It was further stated that this Commission, at Chandigarh, had no territorial jurisdiction, to entertain and decide the complaint. It was further stated that, as per the agreement, an amount of Rs.15,50,000/-, was paid to Opposite Party No.2, by the complainant, and no amount, over and above the same, was paid to any of the Opposite Parties. It was further stated that the complainants entered into an agreement, with a third person, i.e. Opposite Party No. 2, regarding the alleged rights of Opposite Party No.1, in the flat of Opposite Party No.3. It was further stated that he also filed a case under Sections 55/56 of the Punjab Cooperative Societies Act, 1961, against Opposite Party No.3, way back in the year 2006, which is still pending for adjudication, before the Additional Registrar, Cooperative Societies, Punjab, Chandigarh. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor he indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. Opposite Party No.2, in his written version, pleaded that the complaint was barred by limitation. It was stated that this Commission had no territorial jurisdiction. It was further stated that it was not a consumer dispute, but only an alleged breach of agreement, executed by Opposite Party No.2, in favour of the complainants, and a suit for specific performance or for recovery of money, was maintainable in the Civil Court. It was further stated that Opposite Party No.2, made clear to the complainants, that Opposite Party No.1, had membership with Opposite Party No.3, and the said membership was sold on As is where is basis. It was further stated that Opposite Party No.3, after accepting the full and final payment, against the said membership, did not allot flat to Opposite Party No.1, and as per the information supplied by Opposite Party No.1, a case, in that regard was pending. It was further stated that the role of Opposite Party No.2, was only to get executed the documents, and nothing more than that. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor he indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. On 17.01.2012, Mr. Surinder Kumar, Clerk of Opposite Party No.3, came present, and sought a date for filing reply and evidence, by way of affidavit. Thereafter, none appeared on behalf of Opposite Party No.3, and, accordingly, it was proceeded against exparte.
6. The complainants led evidence, by way of affidavit of Mrs. Kanwaljit Kochhar, alongwith which a number of documents were filed.
7. Opposite Parties No.1 and 2, led evidence, by way of their own affidavits, alongwith which a number of documents were filed.
8. We have heard the Counsel for the complainants, Opposite Parties No.1 and 2, and, have gone through the evidence, and record of the case, very carefully.
9. The Counsel for the complainants, submitted that Section 3 of the Act, provides an additional remedy. He further submitted that, though, a suit for specific performance, could be filed, in relation to the agreement to sell, executed by the Opposite Parties, in favour of the complainants, in the Civil Court, yet, the complainants, fell within the definition of consumers, as they hired the services of the Opposite Parties, for consideration, and the latter were deficient, in rendering the same, and, thus, a consumer complaint was maintainable. He further submitted that the complaint was within limitation, as there was a continuous cause of action, in favour of the complainants, until and unless the possession of the flat was handed over to them, or the amount was returned, as claimed by the complainants, in the complaint. He also submitted that the amount, as mentioned in the complaint, was paid by the complainants, to the Opposite Parties. He further submitted that the complainants, came to know that the membership of Opposite Party No.1, had been cancelled, as he was a defaulter of Opposite Party No.3. He further submitted that the complainants, also came to know that, no flat had been allotted, in favour of Opposite Party No.1 by Opposite Party No.3, and, as such, Opposite Parties No.1 and 2, in connivance with each other, cheated the complainants. He further submitted that the complainants were entitled to the amount, claimed by them in the complaint.
10. On the other hand, the Counsel for Opposite Parties No.1 and 2, submitted that it was a case of alleged breach of the terms and conditions of the agreement to sell, which was executed by Opposite Party No.2, in favour of the complainants, and only a suit for specific performance, or in the alternative, for recovery of the amount, paid by the complainants to Opposite Party No.2, could be filed. They further submitted that neither Opposite Parties No.1 and 2, were the service providers, nor the complainants fell within the definition of consumers, as it was not a case of hiring of service for consideration. They further submitted that since it was not a consumer dispute, a complaint under the Act, was not maintainable. They further submitted that, no doubt, Section 3 of the Act, provides an additional remedy, but only, in the cases, relating to consumer disputes, and not in derogation of any other law, which provided a specific remedy. He further submitted that the complaint was not maintainable, was liable to be dismissed.
11. After hearing the Counsel for the complainants, Opposite Parties No.1 and 2, and, on going through the evidence, and record, of the case, we are of the considered opinion, that the complaint is liable to be dismissed, for the reasons to be recorded hereinafter. It is evident from the averments, contained in the complaint, as also the evidence, produced by the complainants, that an agreement to sell, Annexure C-2, was executed by Opposite Party No.2, in favour of the complainants, in respect of membership number 635 of Opposite Party No.1, as also the HIG flat in Puncham Society, Sector 68, First Floor, Mohali, allotted in favour of Opposite Party No.1. The total price of the flat was fixed at Rs.15,50,000/-. This amount was paid to Opposite Party No.2, by the complainants. The last date for execution of the sale deed was fixed as 15.01.2005. No doubt, later on, the complainants came to know that Opposite Party No.1, being defaulter of Opposite Party No.3, his membership had been cancelled, and that no HIG flat was ever allotted/sold to him (Opposite Party No.1). Now the question arises, as to whether, the Consumer Complaint was maintainable, in the peculiar facts and circumstances of the case. It was only a case of breach of contract, Annexure C-2, which was executed by Opposite Party No.2, in favour of the complainants, in respect of the flat, in question. In clause 9 of this agreement, it was, in clear-cut terms stated that, in case, the purchaser backed-out from the bargain, then his/her earnest money, shall stand forfeited, and, if the seller backed-out from the bargain, then he/she would pay double of the earnest money to the purchaser, and the purchaser shall have the option either to accept the liquidated damages or to get the sale deed executed, through the Court of law under the Specific Relief Act. On perusal of the contents of the agreement to sell Annexure C-2, averments contained in the complaint, and other evidence, produced on record, we are of the considered opinion, that the Opposite Parties could not be said to have rendered, any service, to the complainants, for the deficiency, whereof, a Consumer Complaint could be filed, before the Consumer Fora. It appears to be a case of non-performance of its obligation by a vendor, under the agreement to sell, for which the complainants should have filed a Civil Suit, for specific performance of the agreement to sell, or sought alternative remedy, in accordance with law. When a remedy, in the event of nonperformance of its obligation, by a vendor, in pursuance of the agreement to sell was provided, by way of filing a suit for specific performance of the same, or for the alternative relief, the Consumer Complaint was not maintainable. In the instant case, neither the complainants were the consumers, nor they hired the services of the Opposite Parties, for consideration, in view of the agreement Annexure C-2, nor was it a Consumer dispute. In Mangilal Soni Vs. T. Marappa & Ors, II (2011) CPJ 95 (NC), in similar circumstances, an agreement to sell dated 23.11.2007 was executed, in favour of the complainant, by the Opposite Parties, in respect of the immovable property, for a total consideration of Rs.2 crores, out of which Rs.20 lacs, were paid by the complainant, and the balance consideration of Rs.1,80,00,000/-, as agreed, was to be paid at the time of execution of the sale deed. One of the stipulations, in the agreement, was that, on the failure of the vendors to execute the sale deed, the complainant would be entitled to five times of the part consideration, which was paid, by him. Taking the averments and allegations, on the face value, the National Consumer Disputes Redressal Commission, New Delhi, came to the conclusion, that the Opposite Parties, could not be said to have rendered any service, to the complainant, for the deficiency whereof, a Consumer Complaint was maintainable. Ultimately, the National Consumer Disputes Redressal Commission, New Delhi, came to the conclusion, that it appeared to be a case of non performance of its obligation, by a vendor, under an agreement to sell, for which the complainant would have been advised to file a Civil Suit, either for specific performance of the agreement to sell, or any other alternative relief, available, in accordance with law. The Consumer Complaint, filed by the complainant, was dismissed, at the preliminary hearing, by giving a liberty to him, to work out his remedy, before a Competent Court, in accordance with law. The principle of law, laid down, in Mangilal Soni`s case (supra), is fully applicable to the facts of the instant case. It is, therefore, held that the Consumer Complaint, in question, was not maintainable, as neither the complainants were the consumers, nor the Opposite Parties were service providers, and, as such, there could not be any deficiency, in rendering service. On this score alone, the complaint is liable to be dismissed.
12. Not only this, according to clause 4, of the agreement to sell (Annexure C-2), the last date for registration and execution of the sale deed was fixed as 15.01.2005. The cause of action, thus, arose to the complainants on 15.01.2005, when the sale deed was not executed. The instant complaint, which was filed on 24.11.2011, was not maintainable. There was no continuous cause of action, in favour of the complainants, to file a Consumer Complaint, which was not otherwise maintainable. A Consumer Complaint, if maintainable, could be filed, within a period of 2 years, from 05.01.2005, i.e. the date fixed for registration and execution of the sale deed. The Consumer Complaint, if at all, was maintainable, having been filed, beyond the period of limitation, is liable to be dismissed, on this score too.
13. Even otherwise, serious allegations of cheating, fraud and misrepresentation, were leveled against the Opposite Parties, in respect of the transaction. Infact, the complainants did not verify, as to whether, Opposite Party No.1, was having valid membership number 635, on the date of execution of the agreement to sell, and whether any flat had been allotted, in his favour, by Opposite Party No.3. The complainants believed the representation, made by Opposite Parties No.1 and 2. Later on, they came to know that the membership of Opposite Party No.1, had been cancelled, as he was a defaulter of Opposite Party No.3, and that no HIG flat had been allotted, in his favour, which was agreed to be sold to them. It was, on the basis of these allegations of cheating, fraud and misrepresentation, that an FIR was got registered by the complainants, against the Opposite Parties. The proceedings before the Consumer Fora, are summary, in nature. The allegations of cheating, fraud and misrepresentation, made in the complaint, are required to be determined, on the basis of voluminous oral as well as documentary evidence. Such allegations of cheating, fraud and misrepresentation, cannot be finally adjudicated upon, by the Consumer Fora, proceedings before which are summary, in nature. Under these circumstances, the effective remedy, which lay with the complainants, was to file a Civil Suit, for Redressal of their grievance.
14. No other point, was urged, by the Counsel for the complainants and Opposite Parties No.1 & 2.
15. For the reasons recorded above, the complaint is dismissed, with no order as to costs.
16. The complainants shall, however, be at liberty, to resort to any other remedy, which may be available to them, under the relevant provisions of law
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion Pronounced.
July 13, 2012 Sd/-
[JUSTICE SHAM SUNDER(Retd.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg