State Consumer Disputes Redressal Commission
Emaar Mgf Land Ltd vs Dilmandeeep Sodhi on 2 November, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1295 of 2014
Date of institution: 22.9.2014
Date of Decision: 2.11.2015
1. Emaar MGF Land Limited through its Branch Manager, SCO No.
120-122, 1st Floor, Sector 17-C, Chandigarh.
2. Emaar MGF Land Limited (EMAAR MGF) through its Managing
Director, Registered Office MGF House, 17-B, Asaf Ali Road, New
Delhi 110002
Appellants/OP Nos. 1 & 2
Versus
1. Dilmandeep Sodhi daughter of Sh. Harminder Singh Sodhi
2. Harminder Singh Sodhi son of Sh. Amarjit Singh Sodhi, both
residents of Near PWD Rest House, G.T. Road, Moga, District
Moga.
Respondent Nos.1&2/Complainants
3. Life Time Consultants, Gandhi Road, Moga, District Moga through
its Authorised Signatory.
4. Edi Sidhu son of Sh. Sukhmander Singh Sidhu, Kisan Cold Store,
Duneke, G.T. Road, District Moga.
Respondents No.3&4/OP Nos.3&4
First Appeal against the order dated 7.8.2014
passed by the District Consumer Disputes
Redressal Forum, Moga.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member
Shri Harcharan Singh Guram, Member
First Appeal No. 1295 of 2014 2
Present:-
For the appellants : Sh. Sanjeev Sharma, Advocate
For respondent Nos.1&2 : Sh. M.K. Sharma, Advocate
For respondent No.3 : Service Dispensed with
For respondent No.4 : Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellants/OP Nos.1&2(hereinafter referred as "OPs") have filed the present appeal against the order dated 7.8.2014 passed by the District Consumer Disputes Redressal Forum, Moga(hereinafter referred as the District Forum) in consumer complaint No.30 dated 31.3.2014 vide which the complaint filed by respondent Nos.1&2/complainants(hereinafter referred as complainants) was allowed with a direction to Ops to pay Rs. 3 lacs received from complainants alongwith interest @ 9% p.a. w.e.f. 29.8.2008 till payment and also pay Rs. 5,000/- as compensation and Rs. 2,000/- as litigation expenses.
2. A consumer complaint was filed by complainants under the Consumer Protection Act, 1986 (in short 'the Act') against Ops on the averments that OP Nos. 3 & 4 were the representatives of OP Nos. 1 & 2. They approached complainants and complainants had booked one unit of "Terraces" in Mohali Hills and handed over a cheque worth Rs. 3 lacs bearing No. 422651 dated 29.8.2008 of Oriental Bank of Commerce, Duneke Branch, Moga and OPs received the same. They had given the provisional allotment of Unit No. 480/GF in which provisional cost of the unit was mentioned First Appeal No. 1295 of 2014 3 subject to terms and conditions as per the agreement but no agreement was ever sent to complainants. Ops were to complete their project upto 2013. Ops failed to start even the construction work. Ops had collected the money from different innocent buyers/investors whereas on the other hand, Ops were pressurizing complainants to deposit the instalment amount. Since no such agreement was executed, therefore, they were entitled to get back their money. Complainants approached OP Nos. 3 & 4 and also made representations to OP Nos. 1 & 2. OP No. 3 had referred the matter to OP Nos. 1 & 2. After discussion with one Mr. Gupta representative of Op Nos. 1 & 2, OP No. 3 also sent detailed email and OP No. 3 had also recommended for the refund of the amount to complainants alongwith interest. Vide letter dated 27.5.2013, complainants had clearly informed Ops that he was not interested furthermore in the project as the project had already delayed and requested for refund of the amount deposited alongwith interest @ 18% p.a. but Ops had failed to refund this amount, which amounted to deficiency in services on the part of Ops. Hence, the complaint with a direction to Ops to refund a sum of Rs. 3 lacs alognwith interest @ 18% p.a., pay Rs. 2 lacs as compensation and Rs. 10,000/- as litigation costs or any other relief which the Forum may deem fit.
3. The complaint was contested by Ops. Op Nos. 1 & 2 filed written reply through their authorized signatory Mr. Sachin Kapoor by taking preliminary objections that the complaint was gross abuse of the process of law as complainants had approached the Forum with unclean hands by not disclosing the material facts; complainants had First Appeal No. 1295 of 2014 4 concealed the fact that unit allotted to complainants was cancelled on 24.3.2011. After receiving the buyer's agreement, they had not chosen to execute the same and returned it to the Company containing terms and conditions as referred in the provisional allotment letter and it was clearly mentioned in the provisional allotment letter that in case complainants failed to execute and deliver the agreement to the Company within the stipulated period of 30 days from the date of receipt of the agreement then the application of the applicant shall be treated as cancelled and the earnest money shall stand forfeited. Under Section 24A of the Act, advance registration application form was executed on 26.6.2008 and due to non-payment of dues, unit was cancelled on 24.3.2011, therefore, the cause of action had arisen to complainants w.e.f. 24.3.2011 and the complaint should have been filed within two years i.e. upto 24.3.2013 whereas it was filed on 31.3.2014, therefore, the complaint was barred by limitation; the District Forum, Moga did not have any territorial jurisdiction to entertain the complaint. None of Ops against whom relief was sought resided within the territorial limits of District Forum, Moga. Otherwise Ops have their Head Office at New Delhi and Branch Office at Chandigarh. The application form was submitted at Chandigarh. Payments were received at Chandigarh and receipts were issued from Chandigarh, therefore, no cause of action had accrued within the territorial jurisdiction of District Forum, Moga. The total price of the unit was Rs. 46 lacs whereas complainants had deposited just Rs. 3 lacs on the basis of which provisional allotment was issued and unit No. 480/GF in "The Terraces" in Sector 108, First Appeal No. 1295 of 2014 5 Mohali was allotted. For terms and conditions buyer's agreement was sent, which was required to be returned back to Ops within 30 days from the date of receipt. Otherwise, there was stipulation in the provisional allotment letter that the application of complainants shall be treated as cancelled. It was not returned back by complainants and no payment was made, therefore, the provisional allotment was cancelled and amount so deposited was forfeited according to the terms and conditions of the policy. On merits, averments as mentioned in the preliminary objections were reiterated. It was submitted that complainants had booked one unit with OPs on deposit of Rs. 3 lacs and provisional allotment of Unit No. 480/GF was allotted in favour of complainants, for that buyer's agreement was sent to complainants, he did not return it within 30 days as per the stipulation in the provisional allotment letter and did not pay further instalments, therefore, the unit was cancelled. There was no deficiency in service on the part of Ops. The complaint was without merit and it be dismissed.
4. OP No. 3 in its written reply took the legal objections that the complaint was not maintainable before this Forum andthat complainants had no locus standi or cause of action to file this complaint against this OP as he was only a representative of OP Nos. 1 & 2 and he had booked the property in favour of complainants as per the instructions issued by OP Nos. 1 & 2 on the basis of documents submitted by complainants. On merits, it was stated that this Op was representative of OP Nos. 1 & 2 whereas OP No. 4 is Senior Sales Executive of OP No. 1. They did not act in their First Appeal No. 1295 of 2014 6 individual capacity. No doubt that complainants inquired from this OP about the status of the building but this OP was unable to explain the same as it was in the knowledge of Op Nos. 1 & 2. This OP after receiving the complaint from complainants immediately referred the same through email to OP Nos. 1 & 2. Complaint against this Op was not maintainable, therefore, it be dismissed.
5. OP No. 4 in its reply took the preliminary objections that the complaint was not maintainable against this OP; the complaint was also not maintainable for want of jurisdiction and that the complaint involved complicated questions of law and facts, which required leading and voluminous evidence whereas the Forum had only the limited jurisdiction. On merits, it was submitted that this Op was just employee of Op Nos. 1 & 2 and now he had left the service about 1½ years back. In fact OP No. 3 was appointed as an Agent of Op Nos. 1 & 2. There was no vested interest of this OP in the project or in the sale of the project. The cheque was never handed over to this OP. OP No. 3 being agent of Op Nos. 1 & 2 had contacted complainants for sale of residential project of OP Nos. 1 & 2 and he as a Sales Manager has explained the project of Op Nos. 1 & 2. Thereafter, complainants did not come into contact of this OP. Complainants might have invested the amount in the project but without his knowledge. It was denied that this Op pressurized complainants to deposit further instalments. The complaint was without merit and it be dismissed.
6. The parties were allowed by the learned District Forum to lead their evidence.
First Appeal No. 1295 of 2014 7
7. In support of his allegations, complainants had tendered into evidence affidavit of Harinder Singh Sodhi Ex. C-1, receipt Ex. C- 2, provisional allotment letter Ex. C-3, letter of OPs Ex. C-4, postal receipts Exs. C-5 & 6, legal notice Ex. C-7, cancellation letter by agent of Ops Ex. C-8, booking details Ex. C-9. On the other hand, OP Nos. 1 & 2 had tendered into evidence affidavit of Sachin Kapoor Ex. Op-1,2/1, advance registration application form Ex. OP-1,2/2, provisional allotment letter Ex. OP-1,2/3, letter of OPs Ex. OP-1,2/4, postal receipt Ex. OP-1,2/5 and cancellation letter Ex. OP-1,2/6. OP No. 4 had tendered into evidence affidavit of Sh. Edie Sidhu Ex. OP- 4/1, engagement letter Ex. Op-4/2.
8. After going through the allegations in the complaint, written replies filed by Ops, evidence and documents brought on the record, the complaint was allowed by the learned District Forum as referred above.
9. At the outset, the counsel for the appellants/OPs has argued that Op Nos. 1 & 2 had taken the plea that the District Forum, Moga did not have any jurisdiction to entertain this complaint and the findings recorded by the District Forum that they have the territorial jurisdiction because OP Nos. 3 & 4 were residing at Moga and they were carrying on work for gain on behalf of Op Nos. 1 & 2. The jurisdiction of the Forum has been defined under Section 11(2) of the Act, which reads as under:-
"11. Jurisdiction of the District Forum.--
(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-- First Appeal No. 1295 of 2014 8
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises."
10. As per Clause 11(2)(a) & (b) in case Ops or any of Ops had actually and voluntarily resided or carried on business or had their branch office, or personally worked for gain within the jurisdiction of that Forum then that Forum had the jurisdiction to entertain the complaint and according to Clause 11(2)(c), a part of cause of action had arisen there.
11. As per the pleadings of the parties, complainants had booked one flat with Op Nos. 1 & 2 and provisional allotment letter was issued in favour of complainants, the same has been placed on First Appeal No. 1295 of 2014 9 the record as Ex. OP Nos. 1&2/2 dated 26.6.2008. It was issued by Op Nos. 1 & 2 and receipt for deposit of payment is Ex. C-2, which was issued by authorised signatory of Op Nos. 1 & 2. Op No. 3 was their representative and Op No. 4 was Sales Manager of OP Nos. 1 &
2. In case they have done any act on behalf of OP Nos. 1 & 2 that act will be assumed to have been done by OP Nos. 1 & 2. Merely because OP Nos. 3 & 4 has done any act, they are not directly responsible, ultimately, it was OP Nos. 1 & 2, who are responsible for allotment, completion of the construction and then to hand over the possession after receiving the payment from complainants. There is no document on the record executed either by OP Nos. 3 & 4. In case they signed any document as Authorized Signatory of Op Nos. 1 & 2, it will be considered document of Op Nos. 1 & 2, therefore, in case they are resident of Moga does not attract the jurisdiction of the District Forum, Moga. According to the provisions of Section 11 of the Act referred above, there should be office or the Branch Office of OP Nos. 1 & 2 whereas there is no branch office of OP Nos. 1 & 2 at Moga or a part of cause of action must arise within the territorial jurisdiction of District Forum, Moga. The property is located in District Mohali, Ops No. 1 & 2 have their main office at Delhi and Branch Office at Chandigarh. The payment was received and receipt was issued from Chandigarh Office, therefore, complainants have not been able to convince before this Commission how any part of cause of action had arisen within the territorial jurisdiction of District Forum, Moga. The plea taken by the District Forum that Op Nos. 3 & 4 have their office or reside at Moga or OP No. 3 had received the payment First Appeal No. 1295 of 2014 10 at Moga, therefore, the District Forum, Moga have the jurisdiction whereas on the basis of record, no document is coming forth that the payment was received by OP No. 3 at Moga. The receipt Ex. C-2 was issued at Chandigarh office. No cause of action had arisen because after payment of Rs. 3 lacs i.e. booking amount, no other payment was made and even buyer's agreement sent to complainants was not returned. No other part of cause of action had arisen within the limits of territorial jurisdiction of Moga, therefore, the findings so recorded by the District Forum, Moga that they have the jurisdiction to entertain the complaint are not born on the basis of pleadings and evidence on the record. Therefore, these findings are not legally sustainable and are liable to be set-aside.
12. In case the District Forum, Moga does not have the territorial jurisdiction to entertain this complaint then we are not supposed to give findings on merits because first complaint is required to be adjudicated by the District Forum having the territorial jurisdiction to entertain that complaint.
13. In view of the above, the appeal filed by the appellants is accepted and the impugned order is set-aside on the ground that the District Forum, Moga did not have the jurisdiction, consequently, the complaint filed by complainants is dismissed without any prejudice to the rights of complainants to file a fresh complaint before the District Forum having the territorial jurisdiction to entertain this complaint.
14. The appellants had deposited an amount of Rs. 25,000/- and Rs. 1,50,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the First Appeal No. 1295 of 2014 11 registry to appellant No. 1 as per affidavit; by way of a crossed cheque/demand draft after the expiry of 45 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
15. The arguments in this appeal were heard on 16.10.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Surinder Pal Kaur) Member November 2, 2015. (Harcharan Singh Guram) as Member