National Consumer Disputes Redressal
M/S. Shivalik Vihar Sites Pvt. Ltd. & ... vs Kuldeep Singh on 7 October, 2021
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 4378 OF 2010 (Against the Order dated 04/11/2010 in Appeal No. 15/2009 of the State Commission Chandigarh) 1. M/S. SHIVALIK VIHAR SITES PVT. LTD. & ORS. Head Office: SCO No..... 16-17, 2nd Floor, Sector 34-A Chandigarh 2. SHRI ANIL KUMAR, DIRECTOR, SHIVALIK VIHAR SITES PRIVATE LIMITED Through its Managing Director, Head Office: SCO No. 16-17, 2nd Floor, Sector 34-A Chandigarh 3. WHITE SEA SITES PRIVATE LIMITED Through its Managing Director, Head Office: SCO No. 16-17, 2nd Floor, Sector 34-A Chandigarh 4. SHRI ANIL KUMAR, DIRECTOR WHITE SEA SITES PRIVATE LIMITED Through its Managing Director, Head Office: SCO No. 16-17, 2nd Floor, Sector 34-A Chandigarh ...........Petitioner(s) Versus 1. KULDEEP SINGH R/o. 186, Ward No. 2, Mundi Kharar Ropar Punjab ...........Respondent(s)
BEFORE: HON'BLE MR. C. VISWANATH,PRESIDING MEMBER HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,MEMBER
For the Petitioner : Mr. Shreenath A. Khemka, Advocate For the Respondent : Mr. Neeraj Pal Sharma, Advocate
Dated : 07 Oct 2021 ORDER
1. Heard Mr. Shreenath A. Khemka, Advocate, for the petitioners and Mr. Neeraj Pal Sharma, Advocate, for the respondents.
2. Review Application No. 127 of 2020, filed for review/recall of the order dated 17.06.2020, passed in this revision, was listed on 27.09.2021. As the arguments in review application and in the revision are same, we asked the counsel for the parties to argue the revision on merit, so that the controversy be decided finally.
3. This revision has been filed against the order of State Consumer Disputes Redressal Commission, Punjab at Chandigarh, dated 04.11.2010, passed in Appeal No. 15 of 2009 (arising out of the order of District Consumer Disputes Redressal Forum-1, U.T. Chandigarh, dated 08.12.2008, passed in Consumer Complaint No. 664 of 2008) whereby the complaint was dismissed and the appeal was allowed and the petitioners were directed to refund the amount of Rs. 11 lakhs with interest @ 6% per annum to the respondent, within 30 days. After 30 days, the interest was enhanced @ 12% per annum.
4. Kuldeep Singh (the respondent) filed Consumer Complaint No. 664 of 2008, for directing the petitioners (hereinafter referred to as the builders), (i) to refund an amount of Rs. 11 lakhs along with interest @ 15 % p.a., w.e.f. 04.03.2006 till its realization (ii) to pay Rs. 3 lakhs, as punitive damages, (iii) to pay Rs. 1 lakh as compensation for mental agony and physical harassment, (iv) to pay Rs. 11000/- as the cost of the litigation and (v) any other relief as may be deem fit and proper, in the circumstances of the case.
5. It has been stated in the complaint that the builders were the companies, engaged in business of development and construction of multi-story residential and commercial buildings and selling its unit to the prospective buyers. The builders launched a housing project in the name of "Shivalik Apartments Kharar" in 2005 and made various lucrative advertisements. The complainant, enamoured by the feature of the scheme, booked a flat on 04.03.2006 and paid full and final amount of Rs. 11 lakhs. Total sale price of the flat was Rs. 14 lakhs but Rs. 3 lakhs was given as discount and parking place free of cost, in the scheme of the builders. He was allotted Flat No. 104, on First floor, Shivalik Apartments Kharar, admeasuring covered area of 802 sq. ft. and allotment letter dated 04.03.2006 was given to him, in which the promised period of handing over possession was till 04.04.2007. The complainant perturbed by the slow pace of construction and met the builders in December, 2006. The builders assured that the tempo of construction would pick up very soon and possession would be delivered on promised time. In April, 2007, the complainant again visited the site and found that even first floor construction was not completed. The builders again assured for completing constructions and giving possession, within three months. The complainant again visited the site, in August, 2007, the builders then assured for completing construction and giving possession, till December, 2007. The complainant again visited the site on 24.03.2008 and found that the builders had removed the board of "Shivalik Vihar Sites Private Limited" and in its place painted "Sea Infrastructure". These change in the name casted a doubt in the mind of the complainant. The complainant again visited the site on 06.05.2008 and found that wall and linter of 4th floor was laid although the building was to be raised up to sixth floor. The complainant then gave a legal notice dated 12.05.2008, through registered post for refund the money realized from him. Thereafter, the complaint was filed on 11.06.2008.
6. The builders filed written reply and contested the case. In the written reply, it has been stated that Anil Kumar, the Director, was resident of Kothi No. 4153, Sector 68, SAS Nagar, Mohali and he was doing property business in the name of "White Sea Sites Private Ltd." and other company with office in SCO No. 1617, 2nd Floor, Sector 34-A, Chandigarh. Sh. Darmendra Suri son of Late Narender Nath Suri, resident of House No. 108, Sector 22-A, Chandigarh was General Manager of the said company. They both were at their office and about 5.00 PM on 09.07.2006, they went to Anndata Steel Shop, located on Zirakpur Highway to meet Gulab Singh, who was known to them. When Anil Kumar and Dharmendra Suri were talking with Gulab Singh, all of sudden, 12-14 persons came and kidnapped them on gun point in a car and took them to Behlana. Anil Kumar, the answering opposite party, could identify Darshan Singh, Parmjeet Kaur Dhillon, Ajit Singh, Navdeep Singh, Deepak, Vicky, Ashok Kumar, Ravinder, Sukhbir, Bhola alias Raja, out of 12-14 persons aforesaid. Other persons could be identified, if brought before him. These persons started beating Anil Kumar and Dharmendra Suri, confining them in a house at Behlana. They broke open the glass of his car and brought out his suitcase, in which important documents, such as original copy of registry of house No. 31, Badal colony, Zirakpur and one original registry of Shivalik Apartment, Kharar and Rs. 42000/- cash, were kept. After opening the suitcase, they took all the documents and cash in their possession. Then they took Anil Kumar and Dharmendra Suri to Kothi No. 15, Sector 3, Chandigarh, where they kept them in the car outside the house and 3-4 persons out of them went into the said house. They came back after long time along with certain documents pertaining to his two houses i.e. Kothi No. 4153, Sector-68, Mohali and House No. 31, Badal colony, Zirakpur, 11 blank stamp and blank papers, two blank letter heads of answering opposite party's company "White Sea Sites Private Ltd." and also letter head of "Blue Sea Sites Private Ltd." Ajit Singh then threatened the answering opposite party at gun point and asked him to sign these papers. On the paper of the house No. 4153, Sector-68, Mohali of Anil Kumar, it was written that the answering respondent had received Rs. one crore and 30 lakhs cash on account of sale of Mohali house. They also obtained signatures of Anil Kumar on an agreement to sell pertaining to his house at Zirakpur. In these agreements, delivery of possession over the houses was also mentioned. Kothi No. 4153, Sector-68, Mohali was jointly owned by Anil Kumar and his wife Mrs. Sonu Kumar. They brought Anil Kumar to his house at Kothi No. 4153, Sector-68, Mohali at around 1.00 AM and under threat of killing forcibly obtained signatures of his wife Mrs. Sonu Kumar on the agreement. Thereafter, these persons took them from the house and released Anil Kumar and Dharmendra Suri near Tribune Chowk at about 2.30 AM and handed over kea of his safari car and gave threat not to inform the police in respect of entire incidents. Anil Kumar lodged FIR No. 183 on 26.09.2007, under Sections 364-A, 382, 420, 467, 468, 120-B IPC and under Arms Act, at P.S. Zirakpur, against Darshan Singh, Parmjeet Kaur Dhillon, Ajit Singh, Navdeep Singh, Deepak, Vicky, Ashok Kumar, Ravinder, Sukhbir, Bhola alias Raja and 2-3 unidentified persons, in which, the police after investigation had submitted charge sheet. Anil Kumar filed Civil Suit (registered as RT No. 845 of 07.11.2006/14.03.2007, against Darshan Singh, Parmjeet Kaur Dhillon, Ajit Singh, Navdeep Singh, Deepak Rawat, Vicky, Ashok Saini, Ravinder Singh and Sukhbir Singh, in Civil Court Mohali, for restraining those persons to convert the blank stamp papers, blank papers, blank letter heads of Blue Sea Site Private Limited and White Sea Sites Private Ltd., on which signatures of Anil Kumar were obtained under coercion, into valuable security or agreement to sell, power of attorney or any other resolution on behalf of Anil Kumar and this suit was pending. Rakesh Singh Rawat, who was working as Superintendent in this learned Court, had purchased a flat from Anil Kumar but his allotment has been cancelled due to non-payment. Rakesh Singh Rawat filed a consumer complaint, through the same counsel, who had filed the present complaint, in which the matter has been settled between the parties and the money deposited by Rakesh Singh Rawat was returned to him. Deepak Rawat, the named accused In F.I.R. No. 183, was relative to Rakesh Singh Rawat. The present complaint has also been filed on the basis forged allotment letter, fabricated on the blank papers, on which, his signatures were obtained in coercion. Darshan Singh, the named accused, has been named as an Arbitrator in the allotment letter. It has been denied that the complainant had paid any money to him or he had executed the allotment letter dated 06.04.2007, in his favour.
7. District Forum by judgement dated 08.12.2008, found that the complainant had failed to prove payment of Rs. 11 lakhs to the opposite parties and had not disclosed the mode of payment. The alleged allotment letter dated 04.03.2006 was a tentative allotment letter. On these findings, the complaint was dismissed with cost of Rs. 5500/-. The complainant filed Appeal No. 15 of 2009, from the aforesaid order. State Commission, after hearing the parties, by judgment dated 04.11.2010, found that allotment letter dated 04.03.2006, which contained recital of payment of Rs. 11 lakhs, was signed by Anil Kumar. It has been proved that Anil Kumar had been receiving cash payment for allotment of the flat from other persons also and for cheating other persons, he was facing criminal trail, in several matters. As such payment of Rs.11 lakhs to Anil Kumar was proved. On these findings the appeal was allowed with cost of Rs.5000/- and Anil Kumar was directed to refund Rs.11 lakhs to the respondent. Hence this revision has been filed.
8. So far as criminal case is concerned, the incident allegedly took place on 09.07.2007 and FIR No. 183, under Sections 364-A, 382, 420, 467, 468, 120-B IPC and under Arms Act, at P.S. Zirakpur, was lodged on 26.09.2007 against Darshan Singh, Parmjeet Kaur Dhillon, Ajit Singh, Navdeep Singh, Deepak, Vicky, Ashok Kumar, Ravinder, Sukhbir, Bhola alias Raja and 2-3 unidentified persons. Jasbir Singh and Kuldeep Singh were not named as the accused in the FIR but after investigation, the police submitted charge sheet against Jasbir Singh and Kuldeep Singh also. The case was committed to Session's Court for trial. Additional Session's Judge, S.A.S Nagar, Mohali, by his judgement dated 25.03.2015, acquitted all the accused. Anil Kumar challenged the judgment dated 25.03.2015, in Criminal Appeal D-531 DB of 2015, which was dismissed by High Court by judgment dated 29.03.2017. At present no criminal case is pending.
9. We have considered the arguments of the counsel for the parties and examined the record. So far as Civil Suit i.e. RT No. 845 of 07.11.2006/14.03.2007, is concerned, it was filed against Darshan Singh, Parmjeet Kaur Dhillon, Ajit Singh, Navdeep Singh, Deepak Rawat, Vicky, Ashok Saini, Ravinder Singh and Sukhbir Singh, in Civil Court Mohali, for restraining those persons to convert the blank stamp papers, blank papers, blank letter heads of Blue Sea Site Private Limited and White Sea Sites Private Ltd., on which signatures of Anil Kumar were allegedly obtained under coercion, into valuable security or agreement to sell, power of attorney or any other resolution on behalf of Anil Kumar. This suit was dismissed in default on 30.10.2010. The petitioners did not file any order; showing that the order dated 30.10.2010 was recalled. State Commission passed impugned order on 04.11.2010. On the date of order of State Commission no civil suit was pending.
10. Anil Kumar filed another civil suit i.e. Civil Suit No. 48 of 20.04.2017, against Jasbir Singh and Kuldeep Singh, concealing the material facts of filing Civil Suit i.e. RT No. 845 of 07.11.2006/ 14.03.2007 as well as criminal case, which resulted in acquittal. In this suit, services of summons were affected through publication and exparte decree was passed on 17.05.2019. On coming to know about the exparte decree, the complainants Jasbir Singh and Kuldeep Singh filed an application under Order 9 Rule 13 C.P.C., on 28.01.2020, for setting aside exparte decree, dated 17.05.2019. The application could not be heard till today, due to Covid-19 and still pending.
11. Anil Kumar did not challenge the genuineness of his signature on allotment letter dated 04.03.2006, which contained his acknowledgement of receipt of Rs.11 lakh. He took the plea that his signatures have been obtained on blank papers, during his abduction, which have been utilised for fabricating allotment letters. High Court, in its order dated 29.03.2017, passed in Criminal Appeal D-531 DB of 2015, has specifically held that the prosecution had failed to prove that allotment letters were fabricated documents. In such circumstances, State Commission has not committed any error in directing Anil Kumar to refund the money recovered from the complainant as mentioned in allotment letter. State Commission has also recorded finding that Anil Kumar was in habit of cheating various consumers by collecting money from them and issuing such allotment letters, for which several criminal cases were lodged against him. This finding has not been challenged at all. The argument that highly complicated issue of fact is involved in the complaint is not liable to be accepted.
12. By virtue of Section 3 of Consumer Protection Act, 1986, a consumer is provided additional speedy and inexpensive remedy to approach Consumer Forum. The consumer is a dominus litis and has right to choose his forum. The remedy available under Consumer Protection Act, 1986 cannot be allowed to be frustrated by filing frivolous and false criminal and civil cases. Limitation Act, 1963, provides three years limitation, for a suit for cancellation of a document. Anil Kumar was contesting consumer complaints, since 2008 and had knowledge of allotment letters dated 04.03.2006, at least from the date of filing his written reply in the consumer complaints. Civil Suit No. 48 of 20.04.2017 was long barred by limitation and ought to have been dismissed as time barred in view of legislative mandate under Section 3 of the Limitation Act, 1963. Issue of limitation is an issue of jurisdiction. Civil Judge had no jurisdiction to decree the suit and the exparte decree dated 17.05.2019, passed in Civil Suit No. 48 of 20.04.2017 is nullity.
O R D E R
In view of aforementioned discussions the revision has no merit and it is dismissed.
...................... C. VISWANATH PRESIDING MEMBER ......................J RAM SURAT RAM MAURYA MEMBER