State Consumer Disputes Redressal Commission
Chandigarh Royal City Promoters Pvt. ... vs Sham Lal on 3 March, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.38 of 2016
Date of Institution: 12.01.2016
Order reserved on:02.03.2017
Date of Decision : 03.03.2017
Chandigarh Royal City Promoters Pvt. Ltd., having its office at
Village Karala, Patiala-Zirakpur Highway, Tehsil Dera Bassi, Distt.
S.A.S. Nagar.
.....Appellant/opposite party no.1
Versus
Sham Lal s/o Sh. Kapoor Chand r/o H.No.21042, Street No.11, Ajit
Road, Bathinda.
.....Respondent/complainant
Appeal against order dated 04.11.2015
passed by the District Consumer
Disputes Redressal Forum, Bathinda.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Shri H.S. Guram, Member Present:-
For the appellant : Sh. S.S. Gill, Advocate For the respondent : Sh. D.K. Singal, Advocate ............................................ J. S. KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant has directed this appeal against order of District Consumer Disputes Redressal Forum, Bathinda (in short the 'District Forum') dated 04.11.2015, partly accepting the complaint of the respondent of this appeal with cost of Rs.10,000/- by directing appellant/OPs to refund the amount of Rs.10 lakhs alongwith interest @12% per annum from the date of deposit till realization plus First Appeal No.38 of 2016 2 litigation expenses to the tune of Rs.10,000/-. Appellant of this appeal is OP no.1 in the original complaint before the District Forum and respondent of this appeal is complainant therein and they be referred as such hereinafter for the same of convenience. OP nos.2 and 3 have not been impleaded as parties in this appeal by the appellant.
2. The complainant filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that OP no.1 has its agent/authorized signatories, brokers at Bathinda, Rampura Phull, Chandigarh and at other places in Punjab. OP no.2 is the promoter of the company. OP no.3 is broker/agent of OP nos.1 and 2. In February 2011, OPs offered plots of 200, 300 square yards etc., villas and flats to general public for sale. Initially the project was of 77.87 acres and initial price was @ Rs.9500/- per square yard inclusive of all charges. The OPs increased the rate from Rs.9500/- to Rs.10,000/- per square yard without any reason. The OPs distributed leaflets and other documents showing intention to develop the project having all amenities of life like covered car parking, elevator, power break-up, water supply, lush green, splash, pool etc. OP nos.2 and 3 came at Bathinda and held a camp for collection against booking of plots from various investors on 16.06.2011. The complainant gave cash payment of Rs.5 lakhs to them, vide receipt no.639 dated 16.06.2011, for booking the plot. They assured complainant that rebate of 10% would be given to the senior citizens and the project would be completed immediately. The OPs insisted upon one more First Appeal No.38 of 2016 3 instalments of 25% failing which the earnest money would stand forfeited. The complainant deposited Rs.5 lakhs more on 15.11.2011, vide receipt no.1278 in cash. The OPs were getting money by giving wrong statements by not disclosing about non- granting of CLU. The OPs were given the license on 31.12.2012 by the GMADA. The complainant and other consumers visited the site and found that there was no development work except some sewerage pipes and there was no roads, lights and there were trenches all over the land about 8-10 feet deep. The money collected by OPs was utilized to purchase another land instead of developing the project. The OPs violated the terms and conditions of the norms and guidelines and indulged in this project without registration of land and without approval of lay out plan and OPs failed to develop the project; failed to deliver the possession within the stipulated period and demanded EDC/PLC @52.59% with interest of 21%. The OPs failed to provide all the amenities and facilities, as assured. The OPs wrote letter dated 18.10.2013 to the complainant raising demand of EDC 52.59% and interest and claimed amount of Rs.3,57,978/- by 07.11.2013. The OPs issued another letter dated 09.01.2014 demanding payment of Rs.12,04,000/- alongwith interest of Rs.5,44,230/-. The complainant wrote many letters to OPs on 21.11.2013, 07.12.2013, 08.03.2014 etc., so the cause of action in this case is recurring one. The complainant, thus, filed the complaint praying that OPs be directed to refund Rs.10 lakhs alongwith interest @18% per annum from the date of deposit till payment; and further First Appeal No.38 of 2016 4 to pay Rs.5 lakhs as compensation for mental sufferings for deficient service.
3. Upon notice, OPs filed written reply raising preliminary objections that complaint is false, frivolous and vexatious. The complaint is alleged to be barred by time. The District Forum is alleged to have no jurisdiction to try the complaint. The last payment was alleged to be made by the complainant on 15.11.2011 and he never demanded his money from OPs orally and in writing. The complainant became defaulter and is not liable to get back his payment and other compensation. The complainant is not consumer of OPs. The matter is cognizable by Civil Court only. OP no.1 is developing a township under the aegis of GMADA, a Govt. of Punjab Organization, fully authorized to issue license for the development of township under the Punjab Apartment and Property Regulation Act, 1995. OP no.1 already obtained all the necessary approvals from the Government. The complaint is alleged to be bad for non-joinder of necessary parties. The complainant himself opted for plan C agreeing to pay the instalments, as per plan, but he failed to pay the instalments. The complainant paid the booking amount of Rs.5 lakhs on 16.06.2011 and thereafter paid the instalment of Rs.5 lakhs on 15.11.2011. The OP company demanded instalments from complainant from time to time through telephone calls and by letters dated 18.10.2013 and 09.01.2014, but the complainant failed to comply with the same. The OP company got the CLU on 28.11.2011. The complainant paid the second instalment after visiting the site and after inspection of the spot. The OPs first got approval in the First Appeal No.38 of 2016 5 form of change of land user from the Govt. of Punjab on 28.11.2011, just after six months from the booking amount paid by the complainant. The amounts of Rs.4,65,66,300/- and Rs.13,97,000/- have already been paid to the Govt. by OPs for obtaining the CLU on 11.11.2011 and on 18.11.2011 and for other necessary approvals. Code of conduct was imposed in the month of December 2011/Jan 2012 to March 2012 due to State Assembly election in Punjab. The OPs got letter of intent on 03.08.2012 and paid the amount of Rs.74,30,800/- (in instalments) as license fee on 01.10.2012, Rs.74,34,000/- as SIF on 01.10.2012 and Rs.3,30,60,000/- as EDC on 01.10.2012, thereafter got license on 31.12.2012. The OP company regularly deposited the fees to the tune of Rs.9,58,88,100/- to the departments for setting up the township, despite the fact that the complainant failed to pay the instalments within time. The OP company got registered the sale deeds of 90% of the land, which was earmarked for the township on paying full and final payments by the buyers. OP company can receive 25% amount of the apartment/plot for project from the intended buyer, as per the provisions of the PAPRA Act. On merits, the OPs controverted the averments of the complainant on the above referred grounds and hence prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavit and documents Ex.C-1 to C-27 and closed the evidence. As against it, OPs tendered in evidence affidavit alongwith documents Ex.OP-1/1 to Ex.OP-1/36 and closed the evidence. On conclusion of evidence and arguments, the District Forum partly accepted the complaint of First Appeal No.38 of 2016 6 the complainant, as referred to above. Aggrieved by order of the District Forum, OP no.1 now appellant has directed this appeal against the same.
5. We have heard the learned counsel for the parties and have also examined the record of the case. The sole point canvassed in arguments before us is as to whether this appeal has been filed by a competent person or not. Sh. D.K. Singal, Advocate counsel for the respondent in this appeal raised forceful solitary objection that appellant is a private limited company, but the appeal has been filed without any resolution passed by it, as such this appeal is not competent under law. The counsel for the appellant relied upon the photostat copy of resolution Annexure A-1 in this regard. The counsel for the respondent in this appeal submitted that this resolution is a vague document, which confers no authority to file the appeal at all and hence the appeal is deemed to have been filed by an unauthorized person and is not maintainable in this case. Our attention has also been drawn to the resolution passed by OP no.1 now appellant, photostat copy of which is placed on record of the District Forum as well, vide Ex.OP-1/2. Photostat copy of the same resolution has been placed on the record with this appeal as well. We find that no date has been set out in this resolution, when it was passed by the Board of Directors. There are signatures of one Director only on it and as made out us from perusal of Annexure A-1, the resolution passed by the Board of Directors, but it is signed by one director without mentioning the date on which the Board of Directors of the appellant convened the meeting and passed this First Appeal No.38 of 2016 7 resolution authorizing Anup Kumar Sharma to file the appeal in this case. The resolution without mentioning the date creates suspicion in it. One single director cannot pass the resolution on behalf of Private Limited Company. Consequently, photostat copy of resolution attached with this appeal is a vague document. It records no date on which it was passed by the Board of Directors of the appellant and further there is no specific mention in it to file the appeal. The law is very clear on this point. Our own State Commission has held in "Sagar Suri Estate & Finance Limited Vs. Anju Jain" 2001 CPJ-129 that appeal could be filed only after a resolution passed authorizing some person to file appeal. No valid resolution passed. Appeal cannot be considered to have been filed by the Company. This authority of our own State Commission is directly applicable in this case. Our own High Court has also held in case titled as "Garib Chand Vs. Municipal Committee, Budhlada"
1979 PLR-527 that filing of first appeal before first appellate Court- No resolution passed. It was held that the first appeal before lower appellate court filed on authorization of executive officer without resolution of Municipal Committee is not competent. Appeal not properly constituted. Our own High Court has held in case "The Uddat Bhagat Ram Nazool Land Co-operative Society Vs. Leekal and others" 1981 RLR 120 that Co-operative Society is a body corporate- Authorisation is necessary before any officer or a member can act on its behalf. It was observed that no appeal can be presented on behalf of co-operative society in absence of any resolution authorizing president to file appeal. It was also held by our First Appeal No.38 of 2016 8 own High Court in case "Punjab Wakf Board Vs. Kishan Chand"
1988(1) RLR-350 that no specific authorization for filing appeal under Wakf Act, 1995. Plea that appeal is a continuation of suit, authority granted to institute suit would extend to filing appeals in the matter too held not tenable. No resolution of Wakf Board authorizing filing of appeal. Appeal filed wholly incompetent. Counsel for the appellant could not cite any contrary authority on this point before us, that appeal by Corporate Body like appellant is properly constituted without a resolution in authorizing the person to file the appeal. Consequently, we hold that without proper resolution, the appeal filed in this case is not properly constituted and is held to be incompetent.
6. As a corollary of our above discussion, the appeal is dismissed on the point of not validly constituted appeal under law.
7. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.12,30,000/- in compliance with order of this Commission. Both these amount alongwith interest, which accrued thereon, if any, be remitted by the Registry to respondent of this appeal, being complainant in the complaint, by way of a crossed cheque/demand draft after the expiry of 45 days. Remaining amount, if any, shall be paid by OPs, as per order of the District Forum.
8. Arguments in this appeal were heard on 02.03.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
First Appeal No.38 of 2016 9
9. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H. S. GURAM) MEMBER March 03, 2017 MM