State Consumer Disputes Redressal Commission
Harjit Singh vs Mariners Builders India Ltd. on 21 February, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, CHANDIGARH
Date of Decision: 21.02.2017
Consumer Complaint No. 260 of 2015
Date of institution: 05.10.2015
Date of order reserved: 09.02.2017
Harjit Singh son of Gurmail Singh, resident of House No. 1151/1, Block 28,
Vishal Nagar, Pakhowal Road, Ludhiana.
Complainant
Versus
1. Mariners Buildcon India Limited Office No. 717-718, 7th Floor,
International Trade Tower, Nehru Place, New Delhi - 110019
through its Director.
2. Mariners Buildcon India Limited, Branch Office, SCO No. 120-121,
Sector 8-C, 1st Floor, Madhya Marg, Chandigarh.
3. Mr. Harjot Singh Anand & H.S. Anand, Director, R/o C/10, Ground
Floor, Kailash Colony, New Delhi - 110048.
4. Harjas Kaur, Director, R/o C/10, Ground Floor, Kailash Colony, New
Delhi - 110048.
5. Ms. Amrita Roshan Jain, Director, R/o B24, Greater Kailash 1,
Ground Floor, New Delhi.
Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the complainant : Sh. Rahul Rampal, Advocate
For opposite parties No.1 to 4: Ex.-parte.
For opposite party No. 5 : Sh. Satyaveer Singh, Advocate.
Consumer Complaint No. 260 of 2015 2
2nd Complaint
Consumer Complaint No. 261 of 2015
Date of institution: 05.10.2015
Date of order reserved: 09.02.2017
Inderjeet Singh son of Amar Singh, resident of House No. B-36/131, Vikas
Nagar, Pakhowal Road, Ludhiana.
Complainant
Versus
1. Mariners Buildcon India Limited Office No. 717-718, 7th Floor,
International Trade Tower, Nehru Place, New Delhi - 110019
through its Director.
2. Mariners Buildcon India Limited, Branch Office, SCO No. 120-121,
Sector 8-C, 1st Floor, Madhya Marg, Chandigarh.
3. Mr. Harjot Singh Anand & H.S. Anand, Director, R/o C/10, Ground
Floor, Kailash Colony, New Delhi - 110048.
4. Harjas Kaur, Director, R/o C/10, Ground Floor, Kailash Colony, New
Delhi - 110048.
5. Ms. Amrita Roshan Jain, Director, R/o B24, Greater Kailash 1,
Ground Floor, New Delhi.
Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the complainant : Sh. Rahul Rampal, Advocate
For opposite parties No.1 to 4: Ex.-parte.
For opposite party No. 5 : Sh. Satyaveer Singh, Advocate.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Consumer Complaint No. 260 of 2015 3 This order will dispose of both the above mentioned complaints as in both the complaints similar facts and questions in dispute are involved. For the convenience, the facts are taken from Original Complaint No. 260 of 2015.
2. It was averred by the complainant that on the basis of allurement of Ops, complainant applied for allotment of expendable Villa measuring 300 sq. yards in their project, Mohali Oceanic Villa at Sector 123, Mohali, District SAS Nagar. Alongwith application, he had paid a sum of Rs. 1,75,000/- and he paid various other payments as demanded by Ops and in all a sum of Rs. 21,25,000/- was paid by the complainant to the Ops vide various payments i.e. Rs. 1,75,000/- vide cheque No. 237934 dated 21.8.2009 drawn on Punjab & Sind Bank, Rs. 5,50,000/- vide cheque No. 788525 dated 17.5.2010, Rs. 7,00,00/- vide cheque No. 141922 dated 10.1.2011 and Rs. 7,00,000/- vide cheque No. 213585 dated 14.3.2012, all drawn on State Bank of India. However, the Ops have not started the construction of the project. On persistent requests made by the complainant, Ops agreed to return the principal amount paid by the complainant alongwith interest and issued post dated cheque No. 510363 dated 25.4.2013 of Rs. 21,25,000/- and cheque bearing No. 510364 dated 25.4.2013 of Rs. 4,58,248/-. Both the cheques were presented but were dishonoured with the remarks payment stopped then he served a legal notice dated 14.8.2013. Ops replied the legal notice and issued fresh post dated cheque No. 767896 dated 20.12.2013 for a sum of Rs. 25,83,248/- drawn on Punjab National Bank, Large Corporate Branch, Sector 17, Chandigarh. However, the Consumer Complaint No. 260 of 2015 4 same was also dishonoured vide memo dated 14.3.2014. On the basis of that, he had filed a complaint under Section 138 of the Negotiable Instruments Act against Ops. The project has now been abandoned by Ops. Accordingly, this complaint has been filed by the complainant against Ops for indulging in unfair trade practice and deficiency in services and directions have been sought against the Ops to refund the whole amount paid by the complainant alongwith interest, damages to the extent of Rs. 3,00,000/- and litigation expenses of Rs. 55,000/-.
3. Notice was issued to the Ops. Mr. Satyaveer Singh, Advocate appeared on behalf of Op No. 5 whereas notice sent to Op Nos. 1 to 4 on the address received back with the report that they are not residing at the given address. Counsel for the complainant filed the affidavit that he is not in the knowledge of any other address, accordingly, Op Nos. 1 to 4 were ordered to be served through publication in 'Daily Tribune' and notice was published in Daily Tribune dated 6.4.2016 but none appeared on behalf of Ops, therefore, Op Nos. 1 to 4 were proceeded ex-parte. Op No. 5 did not file the written reply and vide order dated 11.5.2016, filing of the written reply on behalf of Op No. 5 was declined.
4. The complainant in support of his allegations filed documents i.e. affidavit of Harjeet Singh Ex. CW-1/A alongwith application dated 21.8.2009, receipts of payments Exs. C-2 to C-5, legal notice dt. 14.8.2013 Ex. C-6, reply dated 3.9.2013 Ex. C-7, complaint dt. 12.5.14 Ex. C-8, e-mails of various dates Exs. C-9 to C- Consumer Complaint No. 260 of 2015 5
18. Whereas Op No. 5 had tendered evidence by way of affidavit on 16.8.2016 and further filed amended affidavit on 16.12.2016.
5. We have considered the contentions as raised by counsel for the complainant as well as Op No. 5.
6. The counsel for the complainant stated that the project was launched by Ops under the name and style of Mohali Oceanic. Pre-launch application has been placed on the record as Ex. C-1. Alongwith that a sum of Rs. 1,75,000/- was deposited vide Ex. C-2. A sum of Rs. 5,50,000/- was deposited vide receipt Ex. C-3. Rs. 7,00,000/- vide receipt Ex. C-4, another amount of Rs. 7,00,000/- vide receipt Ex. C-5, in that way, the complainant deposited a sum of Rs. 21,25,000/-. But after receiving the basic amount, no buyer's agreement was executed and scheme was not implemented. The complainant issued legal notice dated 14.8.2013 (Ex. C-6) and in reply to the notice Ex. C-7, they stated that a cheque worth Rs. 25,83,248/- has been issued but it was dishonoured. Its complaint under Section 138 of the Negotiable Instruments Act was filed. Copy of the same is Ex. C-8, therefore, intention of the Ops was not to make the payment. On behalf of Op No. 5, who is one of the Director of Ops has stated that she is non-active Director, therefore, she is not liable to pay the amount. To support this preposition, counsel for Op No. 5 has referred to the judgment 2010 AIR (SC) 2835 "Central Bank of India versus M/s Asian Global Ltd. & Ors.". In that case, it was observed that there was no specific allegation with regard to the part played by respondent/accused in the transaction in question. Complaint was quashed. He has further referred to another judgment Consumer Complaint No. 260 of 2015 6 of the Hon'ble Supreme Court 2007(3) BCR 88 "N.K. Wahi versus Shekhar Singh and others" wherein it was observed by the Hon'ble Supreme Court that for transaction of Directors, there must be a specific allegation in the complaint as to the part played by them in the transaction. In another judgment 2005(4) RCR (Criminal) 141 "S.M.S. Pharmaceuticals Ltd. versus Neeta Bhalla and Anr." In that case, it was observed by the Hon'ble Supreme Court that it is necessary to specify further in the complaint that Directors were incharge of, or responsible for conduct of business of the Company. All these judgments are under Section 138 of the Negotiable Instruments to fix the criminal liability of the Director whereas the present complaint is with regard to unfair trade practice and deficiency in service under the CP Act, where Civil liability is to be determined. Therefore, the judgments referred by the counsel for Op No. 5 are not applicable to the facts in question. Moreover, there is only a plea in the affidavit, no document i.e. Memorandum of Articles or any other document showing role of Op No. 5 has been placed on the record. The judgment, if any, on the subject will be applicable only if the facts are clear. In the absence of any factual evidence on the record that Op No. 5 was non-active Director of the Company, the plea raised by this Op cannot be accepted. No other point was argued by the counsel for the Ops.
7. The counsel for the complainant has referred to the judgment III (2007) CPJ 7 (NC) "Kamal Sood versus DLF Universal Ltd." and in para No. 24 of the judgment, it has been mentioned that it was the duty of the DLF to plan in advance, obtain necessary Consumer Complaint No. 260 of 2015 7 permission and thereafter promise to deliver the possession of the flat/apartment within the stipulated time. It was further observed that delay in obtaining the permission would hardly be a ground for directing the consumer to suffer. He also referred to another judgment I(2009) CPJ 136 (NC) "Prasad Homes Private Limited versus E. Mahender Reddy & Ors." In that case, approved layout plan was not supplied. No development work was carried at the site. Payment of further instalment was stopped by the complainant. It was observed that developer cannot be allowed to take shelter under agreement clause to usurp money deposited. Agreement clause heavily loaded in favour of builder and against purchasers. Such agreement clearly amounts to unfair trade practice. State Commission ordered refund alongwith interest and revision petition before the Hon'ble National Commission was dismissed. Moreover, the Ops have principally agreed to refund the amount and had issued the cheque two times but both the times the cheques were dishonoured, therefore, the intention of the Ops was not to pay the refund. Although in principal, they have agreed to pay the refund because there project is not insight as no document with regard to acquisition of land, licence, CLU, Pollution Certificate, Environment Certificate has been taken from the Competent Authorities. It is clear cut violation on the part of Ops to collect the money against the provisions of PAPRA and then not to refund it against the demand, which amounts to deficiency in service on the part of Ops.
8. Sequel to the above, we accept the complaint and direct the Ops as under:-
Consumer Complaint No. 260 of 2015 8
(i) refund a sum of Rs. 21,25,000/- alongwith interest @ 11% p.a. from the date of deposit till payment;
(ii) pay Rs. 1 lac on account of unfair trade practice and deficiency in service to receive the payment and launch the project without proper approvals from the competent authority i.e. CLU from the PUDA and Town and Gram Planning Department, Punjab or licence from the GMADA, layout plans or other certificates as provided under the PAPRA; and
(iii) Rs. 21,000/- as litigation expenses.
Order be complied by the Ops within 30 days from the receipt of certified copy of the order.
Consumer Complaint No. 261 of 2015
9. It was averred by the complainant that on the basis of allurement of Ops, complainant applied for allotment of expendable Villa measuring 300 sq. yards in their project, Mohali Oceanic Villa at Sector 123, Mohali, District SAS Nagar. Alongwith application, he had paid a sum of Rs. 1,75,000/- and he paid various other payments as demanded by Op i.e. Rs. 1,75,000/- vide cheque No. 007257 dated 21.8.2009, Rs. 5,50,000/- vide cheque No. 007263 dated 17.5.2010, RS. 7,00,000/- vide cheque No. 007272 dated 10.1.2011, all of The Hongkong & Shanghai Banking Corporation Ltd. and Rs. 7,00,000/- vide cheque No. 100836 dated 14.3.2012 drawn on Axis Bank, in all a sum of Rs. 21,25,000/- was paid by the complainant to the Ops. However, the Ops had not started the construction of the project. Other averments are the same as in Consumer Complaint No. 260 of Consumer Complaint No. 260 of 2015 9 2015. The complaint has been filed seeking refund of the whole amount paid by him with the Ops alongwith interest, damages to the extent of Rs. 3,00,000/- and litigation expenses of Rs. 55,000/-.
10. Notice was issued to the Ops. Mr. Satyaveer Singh, Advocate appeared on behalf of Op No. 5 whereas notice sent to Op Nos. 1 to 4 on the address received back with the report that they are not residing at the given address. Counsel for the complainant filed the affidavit that he has not in the knowledge of any other address, accordingly, Op Nos. 1 to 4 were ordered to be served through publication in 'Daily Tribune' and notice was published in Daily Tribune dated 6.4.2016 but none appeared on behalf of Ops, therefore, Op Nos. 1 to 4 were proceeded ex-parte. Op No. 5 did not file the written reply and vide order dated 11.5.2016, filing of the written reply on behalf of Op No. 5 was declined.
11. The complainant in support of his allegations filed documents i.e. affidavit of Kiranjeet Kaur Ex. CW-1/A alongwith application dated 21.8.2009, receipts of payments Exs. C-2 to C-5, legal notice dt. 14.8.2013 Ex. C-6, reply dated 3.9.2013 Ex. C-7, complaint dt. 12.5.14 Ex. C-8, e-mails of various dates Exs. C-9 to C- 18, photocopy of Special Power of Attorney Ex. C-19. Whereas Op No. 5 had tendered evidence by way of affidavit on 17.8.2016 and further filed amended affidavit on 16.12.2016 but written reply on behalf of Op No. 5 was declined vide order dated 11.5.2016.
12. As the whole case of this complainant is similar to Consumer Complaint No. 260 of 2015 so the observations made in Consumer Complaint No. 260 of 2015 are applicable in this complaint Consumer Complaint No. 260 of 2015 10 also and we find that the Ops indulged in unfair trade practice and are deficient in their services. Therefore, we accept the complaint and direct the Ops as under:-
(i) refund a sum of Rs. 21,25,000/- alongwith interest @ 11% p.a. from the date of deposit till payment;
(ii) pay Rs. 1 lac on account of unfair trade practice and deficiency in service to receive the payment and launch the project without proper approvals from the competent authority i.e. CLU from the PUDA and Town and Gram Planning Department, Punjab or licence from the GMADA, layout plans or other certificates as provided under the PAPRA; and
(iii) Rs. 21,000/- as litigation expenses.
Order be complied by the Ops within 30 days from the receipt of certified copy of the order.
13. These consumer complaints could not be decided within the statutory period due to heavy pendency of Court cases.
14. Orders be communicated to the parties as per rules.
15. Copy of this order be placed in C.C. No. 261 of 2015.
(Gurcharan Singh Saran)
Presiding Judicial Member
February 21, 2017. (Surinder Pal Kaur)
as Member
Consumer Complaint No. 260 of 2015 11