National Consumer Disputes Redressal
Kwality Colonisers Private Ltd. vs Sunita Bali, W/O Col. Anil Bali, on 16 October, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO.349 OF 2014 With I.A. No.3967 of 2014 (For Stay) (Against the order dated 29.4.2014 in C.C. No.19/2014 of the State Consumer Disputes Redressal Commission, U.T., Chandigarh) Kwality Colonisers Private Ltd. 814, Shakuntala Building, 59, Nehru Place, New Delhi 110 019. Through its Director Sh. Hardeep Singh Appellant Versus 1. Sunita Bali, W/o Col. Anil Bali, House No.1110, Sector -34-C, Chandigarh 2. Kwality Colonisers Private Ltd. 2206, Sector-22C, Chandigarh Sh. Harpreet Singh Mann, through its authorised signatory Sh. Harpreet Singh 3. Sawan Developers and Promoters, SCO 167-168, Second Floor, Sector-8-C, Madhya Marg, Chandigarh, through its proprietor Sh. Pardeep Bhatreja Respondents BEFORE: HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER HON'BLE MR. SURESH CHANDRA MEMBER For Appellant : Shri Anant Gautam, Advocate Pronounced on: 16th October, 2014 ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Appellant/Opposite Party No.2 has filed the present appeal against order dated 29.4.2014, passed by State Consumer Disputes Redressal Commission, UT Chandigarh (for short, State Commission) vide which complaint of Respondent no.1/Complainant was partly allowed.
2. Brief facts are that Respondent no.1 being M.A. B.Ed, having a vast experience of 20 years in teaching line, wanted to start her own work, to get some regular income. She planned to start English Speaking Course, Coaching Institute and Career Consultancy Course, to earn her livelihood, by way of self-employment. Accordingly, she booked shop number/unit, i.e. SF-33, measuring super area 646.76 square feet, Second Floor, Radisson Hotel-cum-Commercial Tower, Zirakpur, by paying the amount of Rs.10 lacs to Respondent No.3/Opposite Party No.3 on 04.10.2010. The total price of the said unit was Rs.35,24,842/-. Respondent no.1 paid another amount of Rs.14,74,438/- i.e. Rs.3,74,438/- by cheque and Rs.11,00,000/- in cash on 04.11.2010 to Respondent no.2/Opposite Party No.1. Allotment letter dated 04.11.2010, was issued in favour of Respondent no.1. Buyer`s Agreement was also executed between Respondent no.1 and Appellant and Respondent no.2, in November, 2010. In this manner, Respondent no.1 paid an amount of Rs.24,74,438/-, towards, the part price of unit. Benefit of sum of Rs.6,97,920/-on account of return @11% P.A., for the period of 2 years, as per Clause 4 of the said Agreement, was credited to her account. The total amount came to be Rs31,72,358/- 90% of sale price of the unit. The possession of the unit in question, was to be delivered to Respondent no.1, by November, 2011. The remaining price of Rs.3,52,484/-, was to be paid, at the time of delivery of possession by November, 2011. However, possession was not delivered to the Respondent no.1, by Appellant and Respondent no.2, by November 2011.
3. Respondent no.1 visited the site and found that the work had been stopped in between. She sent a registered letter dated 03.09.2013, for refund of the amount, whereupon she received letter dated 11.09.2013 from the Appellant, vide which she was informed that it had given a notice, in the newspapers, with regard to dealings with Respondent no.2. Though more than 3 years had lapsed, from the stipulated date of handing over possession of the unit, yet the same was neither delivered, nor the refund of amount was made to her. Due to these acts of omission and commission, on the part of the appellant and respondent no.2,the respondent no.1 suffered a lot of mental agony and physical harassment. Further, the aforesaid acts amount to deficiency,in rendering service, as also indulgence into unfair trade practice. When grievance of Respondent no.1 was not redressed, she filed a consumer complaint praying for refund of the amount of Rs.31,73,358/- (infact Rs.31,72,358), alongwith interest @12% P.A., from the respective dates of deposits, till realization; compensation, to the tune of Rs.5 lacs for deficiency in rendering service, adoption of unfair trade practice, mental agony and physical harassment; and cost of litigation, to the tune of Rs.55,000/-.
4. Respondent no.2 was deemed to have been duly served for 25.03.2014, but no authorized representative, on its behalf, put in appearance before the State Commission. Hence, it was proceeded against ex parte.
5. Appellant in its written reply pleaded, that Respondent no.1 does not fall within the definition of a consumer. Further, Respondent no.1 had filed the complaint, in connivance with Respondents no.2 and 3, against which Appellant had already filed a criminal complaint with the Inspector General of Police, Chandigarh, on 22.08.2013. After detailed inquiry and investigation, FIR was registered, under Sections 420/467/468/471 and 120B, of the Indian Penal Code. It was further pleaded that Harpreet Singh Mann, Director of Respondent No.2, started embezzling and misusing the funds of the Project of the Appellant, as such he was immediately removed from Directorship of the said Company, by giving public notice dated 28.12.2012.
6. It was denied that Respondent no.1 approached the Appellant or the Company till 03.09.2013. For the first time, Respondent no.1 sent a notice on 03.09.2013 to the Appellant for refund of Rs.31,72,358/-, reply whereto was sent to her, vide letter dated 11.09.2013, but this fact was concealed by her. It was further stated that Respondent no.1 had attached forged and fabricated receipts, regarding payment of amounts. It was denied that any commercial unit was booked by Respondent no.1. It was further stated, that neither there was any deficiency, in rendering service on the part of Appellant nor it indulged into unfair trade practice.
7. Respondent No.3, in its written version, admitted that a sum of Rs.10 lacs as booking amount was paid by Respondent no.1 to Respondent No.3 but cheque was in the name of Appellant and Respondent no.2. It was stated that Respondent No.3 received the cheque and issued the receipt only in the capacity of a broker. It was also admitted that the Buyer`s Agreement was executed between the Respondent no.1 and Appellant and Respondent no.2.
8. The State Commission vide its impugned order, partly allowed the complaint and passed the following directions;
22. For the reasons, recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 and 2, are jointly and severally directed as under:-
(i) To pay a sum of Rs.24,74,438/-, with interest @11% per annum, to the complainant, from 01.12.2012, till realization.
(ii) To pay a sum of Rs.6,97,920/-, being return @11% P.A., for two years, as per Clause 4 of the Buyer`s Agreement.
(iii) To pay a sum of Rs.1 lac, as compensation, for causing mental agony and physical harassment, to the complainant.
(iv) To pay a sum of Rs.20,000/-, as cost of litigation.
(v) The amounts mentioned in Clauses (i), (ii) and (iii), shall be paid by Opposite Parties No.1 and 2, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which the amount, mentioned in Clause (i) shall carry interest @12% P.A., from 01.12.2012, till realization, whereas, the amounts mentioned in Clause (ii) and
(iii), shall carry interest @12% P.A., from the date of default, till realization, besides payment of cost of Rs.20,000/-
23. However, the complaint against Opposite Party No.3 is dismissed, with no order as to costs.
9. Being aggrieved, appellant has filed the present appeal.
10. We have heard the learned counsel for the appellant and gone through the record.
11. It is submitted by learned counsel for the Appellant, that there was no inaction, negligence or mala fides on part of the Appellant. Also as soon the actions of respondent no.2 came to its knowledge, he issued a public notice against respondent no. 2 and also lodged a police complaint against him.
12. Further, perusal of the alleged buyers agreement clearly shows that the document is forged and fabricated one, as registered office of Kwality Colonizers Pvt. Ltd. is given as 2206, Sector-22C, Chandigarh, which is not allowed under the Companies Act, as it is a residential Property. Also in the above said agreement, the registered office of the Appellant is shown to be at two places, one in Chandigarh and another at Delhi, which makes it apparent on the face that the said document is forged and fabricated and has been executed as a result of afterthought to falsely implicate the Appellant.
13. It is further submitted that Appellant has filed a complaint with the IG of Police, Chandigarh on August, 22,2013. After inquiry and investigation, FIR was registered under Section 420/467/468/471 and 120 B.
14. Further, respondent no.2 was removed from the post of the director of the company, due to his illegal activities and a public notice to this effect was given on 28.12.12 by the appellant.
15. Another submission is, that even according to the alleged buyers agreement, all the payments were to be made by cheque or Demand Draft. However, Rs.11,00,000/- were paid cash. Hence, complainant has no case at all.
16. The State Commission while partly allowing the complaint observed;
Admittedly, the possession was not delivered by November 2011, in favour of the complainant. There was no development, at the site, as is proved from the evidence, on record, even till the date of filing the complaint, on 18.02.2014. By making a promise, that possession of the unit, in question, shall be delivered by November, 2011, and not abiding by the same by Opposite Parties No.1 and 2, the complainant was deprived, of her hard money, to the tune of Rs.24,74,438/-. Opposite Parties No.1 and 2, misled the complainant, by making a false promise, with regard to the stipulated date of delivery of possession of the unit, in question, and thus they were guilty of indulgence into unfair trade practice. It is, therefore, held that the complainant was entitled to possession by 10.11.2011.
The fifth question, that falls for consideration, is, as to how much amount, towards the price of unit, in question, was deposited by the complainant. The total price of the unit, in question, as is evident, from Annexure C-2 was Rs.35,24,842/-. 90% of the aforesaid amount was to be paid by 10th November, 2010. It is evident, from Annexure C-1, that a sum of Rs.10 lacs, as booking amount was paid by the complainant, to the Proprietor of Opposite Party No.3, broker of Opposite Parties No.1 and 2, through cheque No.000003 dated 04.10.2010. It is further evident, from Annexure C-3, that an amount of Rs.14,74,438/- i.e. Rs.3,74,438/-, vide cheque No.000009 dated 04.11.2010, and Rs.11,00,000/-, in cash, was paid by the complainant, on the said date (04.11.2010), to Opposite Party No.1. Copy of receipt Annexure C-3, bears the signatures of Harpreet Singh, Director of Opposite Party No.1, in photo-impression. A sum of Rs.6,97,920/-, being return @11% P.A., for two years, as per Clause 4 of the Buyer`s Agreement, was credited to the account of the complainant, towards the price of unit. In this manner, the complainant paid a sum of Rs.31,72,358/-towards part price of the unit, including a sum of Rs.6,97,920/-, which was credited to her account, being return @ 11% P.A., for two years. 10% amount, to the tune of Rs.3,52,484/-, towards the price of the unit was to be paid, at the time of delivery of possession, on 10th November 2011. However, the possession was never delivered. By not refunding the amount of Rs.24,74,438/- and Rs.6,97,920/-, Opposite Parties No.1 and 2 were deficient, in rendering service.
The sixth question, that falls for consideration, is, as to whether, the receipts Annexures C-1, C-2 andC-3 are forged and fabricated documents. According to Opposite Party No.2, these receipts were fabricated by the complainant, in connivance with Opposite Parties No.1 and 3. No evidence was produced, on record, to prove that these receipts were fabricated documents. The mere fact that Opposite Party No.2 has already got registered a criminal case, vide FIR No.70, at Police Station, Sector 17, Chandigarh, under Sections 420/467/468/471 and 120B, of the Indian Penal Code, against the Director of Opposite Party No.1, did not mean that these receipts were forged/fabricated, in any manner. Even otherwise, mere lodging of FIR or the pendency of criminal complaint/case, does not debar the Consumer Foras to decide the Consumer Dispute, relating to the same subject matter. In the absence of any cogent and convincing evidence, having been produced by Opposite Party No.2, by no stretch of imagination, it could be said that the documents aforesaid were forged and fabricated. If there is any dispute, between Opposite Parties No.1 and 2, the third party, i.e. the complainant cannot suffer for the same. The complainant is entitled to the refund of amount of Rs.31,72,358/-.
The seventh question, that falls for consideration, is, as to whether, the complainant is entitled to interest, if so, at what rate, from which date, and on what amount. As per the admission of the complainant, a sum of Rs.6,97,920/-, being return @11% P.A., for two years, at the time of execution of the Buyer`s Agreement, was adjusted towards the price of unit. It means that, an amount of Rs.24,74,438/-, was actually paid by the complainant, to Opposite Parties No.1 and 2. Opposite Party No.1 and 2 utilized the hard money of the complainant, for a long time. Had the amount been returned to her, in time, she would have earned handsome return thereon, by depositing the same, in some bank. It means that, upto 30 November 2012 i.e. for two years, an amount of Rs.6,97,920/-, as return, by way of interest @11% P.A, as per Clause 4 of the Buyer`s Agreement was adjusted in the account of the complainant, towards the price of unit. The complainant is therefore, entitled to interest @11% P.A, on the amount of Rs.24,74,438/-, from 01.12.2012, till realization.
The eighth question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, on account of mental agony and physical harassment. The complainant, underwent a lot of mental agony and physical harassment, on account of non-delivery of possession of the unit, in question, to her, by the stipulated date, or refund of the amount deposited by her, for a sufficient longer period. One can really imagine the mental condition of a person, like the complainant, who had deposited the huge amount of Rs.24,74,438/-, for the purchase of unit, in question, but was neither delivered possession thereof, by the stipulated date, i.e. November 2011, nor till the date of filing complaint, nor refund of the amount was made to her. Tremendous mental agony and physical harassment, was undergone by the complainant, on account of this reason, for which, she is entitled to compensation, in the sum of Rs.1 lac.
The ninth question, that falls for consideration, is, as to what was the effect of public notice, Annexure OP-2/3, which was issued by Opposite Party No.2. It may be stated here, that the amount, in question, for the purchase of unit, in question, was deposited by the complainant, in the year 2010. This public notice was given, in the newspaper, in the year 2012. Under these circumstances, this public notice given by Opposite Party No.2, with regard to the transactions, which had already taken place, between the consumers and Opposite Party No.1, did not have any effect. If, after the publication of this public notice, any transaction between the consumers and Opposite Party No.1, had taken place, the matter would have been different. Under these circumstances, no help can be drawn by the Counsel for Opposite Party No.2, from the public notice, Annexure OP-2/3, so far as the transaction, in the present case is concerned.
So far as the liability of Opposite Party No.3, is concerned, it has got no concern, with deficiency, in rendering service, or indulgence into unfair trade practice, on behalf of Opposite Parties No.1 and 2. It was only the broker of Opposite Parties No.1 and 2, through which the unit was booked by the complainant. Opposite Party No.3 was neither to allot the unit, nor to deliver possession thereof, nor to refund the amount deposited, by the complainant. Since, Opposite Party No.3 was neither deficient, in rendering service, nor indulged into unfair trade practice, the complaint against it deserves to be dismissed.
17. The main plea of the appellant is, that the alleged Buyers Agreement is a forged and fabricated document. The amount if any, was taken only by respondent no.2. Thus, there is no negligence or mala fide on the part of the appellant.
18. As per the copy of Buyers Agreement placed on record, the same was executed in November, 2010 between Kwality Colonisers Pvt. Ltd., a Company registered under Companies Act,1956 having its registered office at 2206, Sector-22C, Chandigarh and at 814, Shakuntala Building, 59, Nehru Place, New Delhi-110019 through its authorized signatory Shri Harpreet Singh Mann, who had been duly authorized by the Board to execute this agreement. It is an admitted fact that Harpreet Singh Mann was the authorized signatory of the appellant company during November, 2010.
19. Further, as per written statement of the appellant, respondent no.2 was removed from the directorship of the company and public notice to this fact was given only on 28.12.2012. Thus, it is manifestly clear that Harpreet Singh Mann was the Director of the appellant till 28.12.2012. Thus, when the Buyers Agreement was executed between the appellant company and respondent no.1, Shri Harpreet Singh Mann was the authorized signatory as well as Director of the appellant company.
20. It is also the case of the appellant, that FIR had been lodged against Harpreet Singh Mann and criminal case is pending against him. As per copy of the complaint lodged with the Inspector General of Police, Chandigarh by the appellant against Harpreet Singh Mann, it was lodged on August 22, 2013, that means, the police complaint was lodged 9 months after, respondent no.2 was allegedly removed from the directorship of the company.
21. Further, as per Collaboration Agreement made between M/s. Shiva S.S. Strips Pvt. Ltd. and Kwality Colonisers Pvt. Ltd (placed on record by the appellant), in which it has been categorically mentioned, that a separate Bank Account (Escrow A/c) in the name and style of M/s. Kwality Colonisers (P) Ltd. A/c Chandigarh Grandeur shall be opened. This clearly goes on to show that the appellant company had an office in Chandigarh also.
22. The above facts and record clearly shows that respondent no.2 was admittedly Director of the Appellants Company, when the Buyers Agreement was executed with respondent no.1, on 4.11.2010.
23. Moreover, if there were disputes inter se between the Directors of the appellant company, then why should the respondent no.1 suffer in that process.
24. As per findings of the State Commission reproduced above, it is manifestly clear that respondent no.1 had paid a sum of Rs.31,72,358/- and possession of the unit, had not been handed over to her, since there was no development at the site till the date of filing of the complaint, that is, on 8.2.2014.
25. This act of the appellant, after collecting an amount of Rs.31,72,358/- from respondent no.1 against a unit/shop and even after executing the Buyers Agreement executed in November, 2010 and not confirming till date, any firm date of handing over of the possession of the unit, amounts to a Deceptive Practice which falls within the meaning of Unfair trade practice as defined under the Consumer Protection Act, 1986. The appellant should have given firm date of handing over of the possession at the time of taking the booking amount itself. By not indicating the true picture with regard to their project to the respondent no.1, the appellant induced her to part with her hard earned money, which also amounts to unfair trade practice.
26. Thus, the appellant by not delivering the legal physical possession of the fully developed unit to the respondent no.1 till date, even after having received 90% of the price, is not only deficient in rendering service but is also guilty of indulging into unfair trade practice.
27. Appellant/Builder in the present case wants to have the cake and eat it too, as admittedly it had received 90% of the cost of the unit. Thus, the appellant being the builder, is enjoying the possession of the unit as well as the substantial amount of consideration paid by respondent no.1. On the other hand, respondent no.1 after having paid the substantial amount of consideration of the unit,is still empty handed.
28. Such type of unscrupulous act on the part of Appellant/Builder should be dealt with heavy hands who after grabbing the hard earned money from the purchaser, enjoy and utilize their money but does not hand over the possession on one pretext or the other. Appellant wants respondent no.1 to run from one fora to other, so that appellant can go on enjoying the respondents money without any hindrance.
29. It is well settled that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, go on filing meritless appeal in different foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. Unscrupulous builder like appellant, who after taking substantial cost of the unit, do not perform its part of obligation, should not be spared. A strong message is required to be sent to such type of builders that this Commission is not helpless in such type of matters.
30. Now question arise for consideration is as to what should be the quantum of costs which should be imposed upon the appellant, when it had no case at all. It is not that every order passed by the judicial fora is to be challenged by the litigants even if the same are based on sound reasonings.
31. In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904, the Apex Court observed;
Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing laws delay and bringing bad name to the judicial system.
32. Further, the Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors.
(Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011) has also observed ;
45. We are clearly of the view that unless we ensure that wrong doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations.
In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that courts otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases.
The court further held;
50. Learned Amicus articulated common mans general impression about litigation in following words;
Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road.
Lastly, the Apex Court observed;
54. While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc.
55. The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts the appellants have also wasted judicial time of the various courts for the last 40 years.
56. On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/ judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/-. We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation.
33. Thus, present appeal is nothing but gross abuse of process of law and same is required to be dismissed with punitive damages. Accordingly, present appeal stand dismissed with punitive damages of Rs.2,50,000/-(Rupees Two Lakh Fifty Thousand only). Out of this amount, a sum of Rs.1,25,000/-(Rupees One Lakh Twenty Five Thousand only) be paid to the respondent no.1. Remaining amount of Rs.1,25,000/-(Rupees One Lakh Twenty Five Thousand only) be deposited in this Commission. Hence, appellant is directed to deposit a sum of Rs.1,25,000/- (Rupees One Lakh Twenty Five Thousand only) by way of demand draft in the name of Consumer Legal Aid Account of this Commission within four weeks from today and balance amount of Rs.1,25,000/-(Rupees One Lakh Twenty Five Thousand only) be deposited in the name of the respondent no.1, by way of demand draft with this Commission within four weeks from today.
34. The damages awarded in favour of respondent no.1, shall be paid to her, only after expiry of period of appeal or revision preferred, if any.
35. In case, appellant fails to deposit the aforesaid amount within the prescribed period, then it shall also be liable to pay interest @ 9% p.a. till realization.
36. List for compliance on 21st November, 2014.
...
(V.B. GUPTA, J) PRESIDING MEMBER ...
(SURESH CHANDRA) MEMBER Sg.