State Consumer Disputes Redressal Commission
1. U K Infrastructure vs Ashok Kumar on 1 April, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 104 of 2014 Date of Institution : 21.03.2014 Date of Decision : 01/04/2014 1. U K Infrastructure through its Chairman Sh. A.J. Singh, Office at SCO 68-69-70, Level IV, Sector 17-C, Chandigarh. 2. Sh. URS Brar, Managing Director, M/s UK Infrastructure, Office at SCO 68-69-70, Level IV, Sector 17-C, Chandigarh. 3. U K Homes Pvt Ltd., through its Authorized Signatory, Office at SCO 68-69-70, Level IV, Sector 17-C, Chandigarh. Appellants/Opposite Parties V e r s u s Ashok Kumar son of Sh. Mohinder Lal, resident of House No.229, First Floor, Sector 20-A, Chandigarh. ....Respondent/complainant. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Sanjeev Kochhar, Advocate for the appellants.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 11.02.2014, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it accepted the complaint, filed by the complainant (now respondent), and directed the Opposite Parties (now appellants), as under:-
In view of the above discussion, the present complaint deserves to succeed. The same is accordingly allowed and the opposite parties are directed as under:-
i) To refund the amount of Rs.3,00,000/- to the complainant alongwith interest @9% per annum from the date of deposit till payment;
ii) To pay Rs.25,000/- as compensation for mental agony and physical harassment;
iii) To pay Rs.10,000/- as costs of litigation.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr. No.(i) & (ii) above shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.
2. The facts, in brief, are that the representative of Opposite Parties No.1 and 2, approached the complainant, with a proposal to provide him, a residential house, in their upcoming project on Zirakpur-Banur Highway, at Zirakpur, Punjab. It was stated that the said representative assured the complainant that physical possession of the unit would be handed over to him, within 18 months, from the date of deposit of the earnest money. It was further stated that, in response to the assurance, given by the representative of Opposite Parties No.1 and 2, the complainant booked a plot, measuring 200 square yards, in the said project, for which he deposited a sum of Rs.3 lacs, by way of two cheques, bearing Nos. 263708 and 695954, both dated 28.11.2011, in the sum of Rs.2 lacs and Rs.1 lac, respectively. Thereafter, the complainant kept on asking the Opposite Parties, about the progress of development of the project, in question, but they put off the matter, on pretext or the other.
3. It was further stated that, in the month of July, 2012, when the complainant visited the site, where the plot, in question, was to be carved out, he was surprised to see that there was no development there. When the complainant confronted the Opposite Parties, and asked them either to handover the physical possession of unit, in question, or refund the amount, deposited by him, but they did not give any positive response. Accordingly, the complainant was forced to write a letter dated 23.08.2012 Annexure C-1, to the Opposite Parties, asking them to cancel the allotment of plot, aforesaid, and refund the booking amount, paid by him, to the tune of Rs.3 lacs. In response to the said letter, the Opposite Parties, vide letter dated 18.12.2012 Annexure C-2, sent a cheque, in the sum of Rs.3 lacs, to the complainant, but when the same was presented before the concerned Bank, it was dishonoured with the remarks Return Unpaid for Reason, Payment stopped by drawer. 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 complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.3 lacs, alongwith interest @24% P.A., from the date of deposit, till realization; compensation, to the tune of Rs.1,50,000/-, on account of deficiency, in rendering service, adoption of unfair trade practice, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.33,000/-.
4. The Opposite Parties, in their joint written version, denied that their representative approached the complainant, with a proposal to provide him, a residential house, in their upcoming project on Zirakpur-Banur Highway, at Zirakpur, Punjab. It was also denied that the said representative gave any assurance to the complainant, that possession shall be delivered, within 18 months, from the date of payment of earnest money. It was also denied that a cheque, in the sum of Rs.3 lacs, was deposited by the complainant, with the Opposite Parties, as booking amount towards the said unit. It was also denied that any cheque was issued, in favour of the complainant, in the sum of Rs.3 lacs, by the Opposite Parties, which was dishonoured. It was, however, stated that the Opposite Parties were developing a Project, for selling the plots. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. In the replication, filed by the complainant, he reasserted all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
9. We have heard the Counsel for the appellants, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellants, submitted that the representative of the Opposite Parties, never approached the complainant, with an assurance to provide him a residential house, in their upcoming project, referred to above. He further submitted that, no booking amount, in the sum of Rs.3 lacs, was deposited by the complainant, with the Opposite Parties. He further submitted that even, no cheque was issued, in favour of the complainant, in the sum of Rs.3 lacs, by the Opposite Parties, and, as such, the question of dishonouring of the same, did not at all arise. He further submitted that, under these circumstances, there was neither any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. He further submitted that the District Forum was wrong, in coming to the contrary conclusion. He further submitted that the order of the District Forum, being illegal and invalid, is liable to be set aside.
11. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellants, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter. According to the appellants/ Opposite Parties, they are developing a project, for selling plots. In that event, they must be maintaining the record, with regard to the booking of plot(s), made by various consumers. They must also be having some record, with regard to the payments, made by those consumers, and the allotments made in their favour. They must also be having some record, with regard to the refund of amount, if any, made to the consumers, by them. They, however, failed to produce such record. Annexure C-2, is a copy of the letter, which was written to Mr.Rakesh Kumar Verma, by the Opposite Parties, wherein, it was, in clear-cut terms, stated that he (Rakesh Kumar Verma) discussed with Mr. Karamjit Sandhu, and they were giving four cheques, in the names of Karamjit Sandhu, Rakesh Kumar, Ashok Kumar (complainant), and Seema, each, in the sum of Rs.3 lacs. The numbers of the cheques were mentioned as 010036,010053,010052 and 010051. In the seriatim, in which the names of Karamjit Sandhu, Rakesh Kumar, Ashok Kumar (complainant), and Seema, are mentioned, in this letter, the complainant, namely Ashok Kumar, was issued cheque No.010052, in the sum of Rs.3 lacs. Annexure C-3 is a copy of the cheque bearing No.010052, which was issued, in favour of Ashok Kumar, complainant, in the sum of Rs.3 lacs. In case, the amount of Rs.3 lacs, had not been deposited by the complainant, with the Opposite Parties, for booking a residential plot, then how and why they sent him the cheque, copy whereof is Annexure C-3, in the sum of Rs.3 lacs. No doubt, the Counsel for the appellants/Opposite Parties, submitted that this cheque was not meant for Ashok Kumar, complainant, but was meant for some other Ashok Kumar. No such plea was taken by the Opposite Parties, in their written version, before the District Forum. Such a plea, being taken by the appellants, at the appellate stage, being beyond pleadings, cannot be entertained. This cheque was dishonoured, vide memo, copy whereof is Annexure C-4, with the remarks Returned Unpaid for Reason: payment stopped by drawer. The averments, contained in the complaint, duly supported by the affidavit of the complainant, and corroborated, by Annexures C-2, C-3 and C-4, the aforesaid documents, clearly proved that the complainant booked a residential plot, with the Opposite Parties, and paid a sum of Rs.3 lacs, as booking amount/earnest money, and when there was no development of the project, in which he was allotted a plot, he asked for cancellation of the same, and refund of the amount, vide letter dated 23.08.2012, copy whereof is Annexure C-1. The Opposite Parties issued a cheque, in the sum of Rs.3 lacs, which, as stated above, was dishonoured, vide memo, copy whereof, is Annexure C-4, for the reasons indicated above. Under these circumstances, the District Forum was right, in holding that the Opposite Parties were clearly deficient, in rendering service, as also adopted unfair trade practice.
12. No other point, was urged, by the Counsel for the appellants.
13. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
14. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
15. Certified copies of this order, be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion.
Pronounced.
April 1, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg