State Consumer Disputes Redressal Commission
Raj Kumar Goyal vs Rajiv Sethi on 1 May, 2012
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T.,
CHANDIGARH
Appeal Case No.
:
112
of 2012
Date of Institution
:
03.04.2012
Date of Decision
:
01.05.2012
1.
Raj Kumar Goyal S/o Sh. Diwan Chand, R/o H.No.47, Young
Dwellers Society, Sector-49, Chandigarh.
2.
Balkar Singh S/o Sh.Kundan Singh, resident of H.No.989,
Sector 69, Mohali.
.Appellants/Opposite Parties
No.5 and 3(in the
Complaint)
V E R S U S
1.
Rajiv Sethi S/o Krishan
Sethi, R/o Lower Sham Nagar, Dharamshala, District Kangra, Himachal
Pradesh. (Complainant)
2.
The Nectar Co-operative House
Building Society Ltd. Operating Office
at SCO No. 208-209, Top Floor, Sector 34-A, Chandigarh, through
its President Sh.Sudeep Singh Sabharwal,R/o
House No.1285, Sector 34, Chandigarh. (Opposite
Party No.1 in the Complaint)
3. Sudeep Singh Sabharwal, President, The
Nectar Co- operative House Building Society Ltd. ,R/o House No.1285, Sector 34,Chandigarh. (Opposite Party No.2 in the Complaint)
4. Smt. Kulwinder Kaur, Cashier, The
Nectar Co-operative House Building
Society Ltd., Operating office at SCO No. 208-209, Top Floor, Sector 34-A, Chandigarh. (Opposite Party No.4 in the Complaint)
5. a) Official Liquidator, The Nector Co-Op
House Building Society Ltd. C/o
Assistant Registrar Cooperative Societies, Punjab, 30 Bays Building Sector 17-C, Chandigarh.
b) Official Liquidator The Nector Co-op House Building Society Ltd. C/o Assistant Registrar Cooperative
Societies, Punjab Randhawa Road,
Kharar02. (Opposite Party No.6 in the Complaint)
....Respondents.
Appeal U/s 15 of
Consumer Protection Act, 1986
BEFORE: JUSTICE
SHAM SUNDER, PRESIDENT.
MRS. NEENA SANDHU,
MEMBER.
Present:
Sh.Gunjan Rishi, Advocate for the appellants.
PER JUSTICE SHAM SUNDER, PRESIDENT This appeal is directed against the order dated 2.1.2012, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which it accepted the complaint of the complainant (now respondent No.1) and directed Opposite Parties No.1 to 5, to refund the deposited amount of Rs.3,54,760/- to the complainant alongwith interest @ 12% p.a. from the respective dates of deposit, till realization and Rs.15,000/- as costs of litigation, within one month from the date of receipt of the certified copy.
2. The facts, in brief, are that Opposite Parties No.2 to 5 (now appellants and respondent Nos.3 & 4) formed a Society known as The Nectar Co-operative House Building Society (now respondent No.2), SAS Nagar, Mohali. The complainant, with a view to own a house/flat in the proposed project of the Opposite Parties, within the master plan of Sector 74, Mohali, purchased a plot of 250 square yards in the said Society and paid a sum of Rs.10,500/- vide receipt dated 4.1.2007 towards earnest money/share and Rs.510/- as share and administrative fee vide receipt dated 4.1.2007. He also deposited Rs.3,43,750/- vide receipt dated 4.1.2007 and Rs.40,000/- vide draft No.366726 dated 26.12.2006. In total, the complainant deposited a sum of Rs.3,94,760/- towards part payment of price of the plot. Apart from the said amount of Rs.3,94,760/-, a sum of Rs.97,000/- was also paid to the Society on account of unforeseen expenses. It was promised by the Opposite Parties, that the project would start within a couple of months, after obtaining the requisite permissions, from the concerned authorities, and getting the sale deed registered, in favour of the Society. It was stated that even after the lapse of sufficient long time, no construction of any sort, was started by the Society. No boundary wall was constructed and no demarcation was got effected. All these circumstances, created a doubt, in the mind of the complainant, regarding the genuineness of the claim of the Society. The complainant paid a number of visits, to the office of the Society, to know about the status of the project, but to no avail. Finding that there was no construction at the site, vide registered letter dated 31.1.2011,the complainant, asked for the refund of amount of Rs.4,91,760/- with interest @18% p.a. from the date of deposits; and payment of compensation , on account of physical harassment and mental agony and loss of appreciation in the property, but to no avail. It was further stated that as the area of operation of the said Society was limited to Block Majri, therefore, it could not operate in the circle of Mohali. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, he filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only).
3. Opposite Parties No.1,2,4 & 6 The Nectar Cooperative House Building Society Ltd., Sudeep Singh Sabharwal, President of the Society, Smt.Kulwinder Kaur, Cashier of the Society, and the Official Liquidator of the Society were duly served, but they did not come present without any sufficient cause. Accordingly, they were proceeded against ex parte by the District Forum.
4. Opposite Parties No.3 & 5, in their joint written version, took up the preliminary objections, to the effect, that the complainant did not fall within the definition of a consumer ; that the complaint was barred by limitation ; that the complaint was not maintainable, as already the Society had gone into liquidation ; and the Registrar of the Cooperative Societies, by taking cognizance, had appointed a Liquidator, vide order dated 23.4.2007, as a result whereof, all the assets and properties of the Society had been taken over by him, after the dissolution of the Society ; and that the District Forum, at Chandigarh, had no jurisdiction to entertain and try the complaint. It was stated that the answering Opposite Parties, never issued any receipt regarding the payment of amounts, mentioned by the complainant, in the complaint. It was further stated that the receipts for the amounts, which were received, were issued by Smt. Kulwinder Kaur, Opposite Party No.4. It was further stated that the entire correspondence for demanding instalments, was exchanged by the President, or the Cashier of the Society. It was further stated that the answering Opposite Parties, had no role to play, in the transaction. It was further stated that the answering Opposite Parties, were neither deficient, in rendering service, nor indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence and record, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, was filed by the appellants/ Opposite Parties No.3 & 5.
8. Alongwith the appeal, an application for condonation of delay of 53 days as per the office report, and 50 days, as per the applicants/appellants, in filing the same(appeal) was moved. It was stated, in the application, that the applicants/appellants had to file three appeals, simultaneously, and were not in possession of sufficient amount of Rs.75,000/-, which was required to be deposited, at the time of filing the same. It was further stated that the delay was neither intentional, nor deliberate, but on account of the reasons, referred to above. Accordingly, a prayer referred to, at the outset of this paragraph, was made.
9..
We have heard the Counsel for the applicants/appellants, and have gone through the evidence produced in the District Forum, carefully.
10. The first question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 53 days, as per the office report, and 50 days as per the applicants/appellants, in filing the appeal under Section 15 of the Act. It was held in Smt.Tara Wanti Vs State of Haryana through the Collector, Kurukshetra AIR 1995 Punjab & Haryana 32, a case decided by a Full Bench of the Punjab & Haryana High Court, that sufficient cause, within the meaning of Section 5 of the Limitation Act, must be a cause, which is beyond the control of the party, invoking the aid of the Section, and the test to be applied, would be to see, as to whether, it was a bona-fide cause, in as much as, nothing could be considered to be bonafide, which is not done, with due care and attention. In New Bank of India Vs. M/s Marvels ( India): 93 (2001) DLT 558, Delhi High Court held as under ;
No doubt the words sufficient cause should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all sufficient cause is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.
11. In Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it was held as under;
There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.
12. Keeping in view the principle of law, laid down, in the aforesaid cases, it is to be seen, as to whether, the applicants/appellants have been able to establish that it was, on account of the circumstances, beyond their control, that they could not file the appeal, in time. The appeal could be filed within 30 days, from the date of receipt of a copy of the order. The ground taken up by the applicants/appellants, in the application, for condonation of delay, is that the appellants had to file three appeals simultaneously for which they required Rs.75,000/- for depositing the mandatory fee , which could only be arranged, after about 50 days, and, as such, the delay occurred in filing the appeal. The delay of 53 days, as per the office report, and 50 days, as per the applicants/appellants , which is beyond 23 days, more than the normal period of filing an appeal U/s 15 of the Act, was on account of the complete inaction and lack of bonafides, attributable to the applicants/appellants. The cause, set up by the applicants/appellants, regarding financial hardship, in the application, for condonation of delay, could not be said to be such, as was beyond their control, which prevented them, from filing the appeal in time. The delay, in filing the appeal was, thus, intentional and deliberate. The applicants/appellants, therefore, failed to prove any sufficient cause, in filing the appeal, after such a long delay of 53 days. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 53 days, as per the office report, and 50 days, as per the applicants/appellants, cannot be condoned. The application is, thus, liable to be dismissed.
13. In the main appeal, the Counsel for the appellants, submitted that the alleged amount of Rs.4,91,760/-, vide various receipts, was deposited by the complainant, with the Cashier, in the year 2006. He further submitted that the complaint was filed on 28.4.2011, though the cause of action, accrued to the complainant, in the year 2007 itself, and, as such the same was barred by time. He further submitted that this point was highlighted before the District Forum, but it did not take into consideration the same, in its proper perspective, as a result whereof, it fell into a grave error, in entertaining and deciding the complaint. The submission of the Counsel for appellants, in this regard, does not appear to be correct.
The District Forum rightly came to the conclusion, that the amount of Rs.3,54,760/- in all, was deposited by the complainant, in the year 2007 vide different receipts. He was issued the share certificate, for the allotment of a plot/flat. Even after the lapse of a sufficient long time, when the complainant visited the site, he found that there was no sign of any construction. Even the necessary permissions, from the competent authorities, for raising construction, had not been obtained by the Opposite Parties. He, throughout, remained under the impression that one day the project would be developed, after obtaining the necessary approvals, from the competent authorities, and he would be allotted a plot and delivered possession, for which he had already deposited the amount, but to no avail.
Under these circumstances, there was a continuing cause of action, in favour of the complainant, until and unless, either he was allotted the plot/flat and delivered possession thereof, or refunded the amount. It was not one time cause of action, which accrued to the complainant, and his failure to file a complaint, within two years, from that date, disentitled him to claim the relief. The District Forum was also right, in holding that the cause of action, being continuing, the complaint filed by the complainant was within limitation. The submission of the Counsel for the appellants, in this regard, being devoid of merit, must fail, and the same stands rejected.
14. The Counsel for the appellants, in the grounds of appeal, no doubt, placed reliance on Kandimalla Raghavaiah & Co. Vs National Insurance Co. & Anr. 2009(3)RCR(Civil)888(SC) and State Bank of India Vs M/s B.S. Agricultural Industries (I) 2009(2)RCR(Civil)628(SC), in support of his contention, that the cause of action accrued to the complainant, in the year 2007, when he deposited the amount, and he could file a complaint within a period of two years, from that date. There is, no dispute, with the proposition of law, laid down, in the aforesaid cases. However, in the instant case, as held above, there was a continuing cause of action, in favour of the complainant, as he had neither been allotted the plot/flat nor delivered possession thereof, nor refund of the amount, deposited by him, with interest, had been made, despite his request. Under these circumstances, it could not be said that the cause of action accrued to the complainant only in 2007, and he could file a complaint within a period of two years from the last date of making payment to the Opposite Parties.
The perusal of the facts of the aforesaid cases, clearly goes to show that the cause of action accrued to the complainants, therein, on a particular date, but they failed to file the complaints within a period of two years, from the date of accrual of cause of action. It was, under these circumstances, that, in the aforesaid cases, held that the complaints were barred by time, and the same could not be entertained for hearing by the Consumer Fora as envisaged by Section 24-A of the Act. The facts of the instant case, being clearly distinguishable, from the aforesaid cases, no help, from the proposition of law, laid down therein, could be drawn by the Counsel for the appellants. The submission of the Counsel for the appellants, being devoid of merit, must fail , and the same is rejected.
15. It was next submitted by the Counsel for the appellants, that the amount, aforesaid, was received by Mrs. Kulwinder Kaur, who was the Cashier of the Society or Mr.Sudeep Singh Sabharwal, who was the President of the Society. He further submitted that no amount was received by the appellants, and, as such they could not be made liable to refund the same. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Sh.Raj Kumar Goyal, appellant NO.1, was the Vice President of the Society, whereas, Balkar Singh was the Secretary of the Society. They were, at the relevant time, the main functionaries of the Society. The Society was not to act itself, but it was to act through its office bearers. Even if, it is assumed, for the sake of arguments, that Mrs. Kulwinder Kaur, Cashier and Sh.Sudeep Singh Sabharwal, President of the Society, obtained the amount from the complainant, the same was, on behalf of the Society. Under these circumstances, both the appellants, the President and the Cashier were incharge of and responsible to the Society, for the conduct to its day to day business. They could not deny their liability qua a third person, who deposited the amount, for the allotment of a plot/flat, with the Society, through its office bearers. Both the appellants, alongwith the other office bearers of the Society, were, thus, jointly and severally liable to refund the amount. Under these circumstances, the submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected.
16. It was next submitted by the Counsel for the appellants, that already FIR No.503 dated 2.11.2007 under Sections 406 & 420 I.P.C., in Police Station, Sector-34, Chandigarh, by Sh.Raj Kumar Goyal, appellant No.1 has been got registered against Sudeep Singh Sabharwal, President of the Society, his wife Amandeep Kaur, Kulwinder Kaur, Cashier of the Society and Sarabjit Singh. He further submitted that the criminal trial is pending against them. He further submitted that Sudeep Singh Sabharwal and Kulwinder Kaur have already been declared proclaimed offenders, in the same. He further submitted that, since a criminal case, is already registered against these persons, the consumer complaint, was not maintainable. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Section-3 of the Act, which reads as under, provides an additional remedy ;
3.Act not in derogation of any other law:- The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
17. The mere fact that a criminal case, under the Indian Penal Code has been got registered against the President of the Society, as also against Kulwinder Kaur, Cashier of the same and the trial is pending against them, before the Criminal Court, did not debar the complainant from filing the Consumer Complaint, claiming refund of the amount, with interest and compensation. The Criminal Court cannot grant the reliefs, which are available to the complainant under the Act. In Trans Mediterranean Airways) Vs Universal Exports & Anr. IV(2011CPJ13(SC), it was observed as under ;
In our view, the protection provided under the CP Act to consumers is in addition to the remedies available under any other Statute. It does not extinguish the remedies under another Statute but provides an additional or alternative remedy.
18. The principle of law, laid down, in the aforesaid case, by the Honble Supreme Court, presents a clear answer, to the challenge, made by the Counsel for the appellants, to the order impugned, on the ground that, in the face of the registration of a criminal case, against the aforesaid persons, and the pendency of trial, the Consumer Complaint was not maintainable. The principle of law, laid down in the aforesaid case, is fully applicable to the facts of the instant case. The submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected.
19. It was next submitted by the Counsel for the appellants that since already the Society, in question, has been dissolved and a liquidator has been appointed, who has taken over all the assets and liabilities thereof, the former (Society) and its office bearers could not be made personally liable for the refund of amount, to the complainant. It may be stated here, that if the office bearers of the Society, at the relevant time, after having received the amount, from the complainant, for the allotment of a plot/flat, committed the acts of malfeasance, misfeasance, as also of embezzlement, then they could be made liable, for such acts, and could be held personally liable to refund the amount. In such circumstances, the office bearers of the Society, could not absolve themselves of their personal liability, on account of their acts of malfeasance, misfeasance and embezzlement. The mere fact, that an FIR under Sections 406 and 420 I.P.C. against the President and the Cashier and other persons, had been registered, at the instance of some of the office bearers of the Society, in itself, was sufficient to clinch that the amount, in question, was embezzled. In this view of the matter, the submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected.
20. It was next submitted by the Counsel for the appellants, that the complainant was not a consumer qua the appellants/opposite parties. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. In the instant case, the services of the appellants and other office bearers were hired by the complainant for consideration. He applied for the allotment of a plot, after making payment of its price. There was no permission with the Opposite Parties, for raising the construction. Once the complainant deposited the amount, aforesaid, for the allotment of a plot/flat, after hiring services of the Opposite Parties, he fell within the definition of a consumer, as provided in Section 2(1)(d)(ii) of the Act, which reads as under ;
Consumer"
means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;
It, therefore, could not be said that the complainant was not a consumer qua the Opposite Parties. The submission of the Counsel for the appellants, thus, being devoid of merit, must fail, and the same stands rejected.
21. Not only this, the Opposite Parties indulged into unfair trade practice. They formed the Society i.e. The Nectar Cooperative House Building Society Ltd. in respect of the proposed project, within the master plan of Sector-74, Mohali. However, it is evident from C20, a copy of the letter dated 27.10.2008 from the Assistant Registrar, Cooperative Societies, Kharar to one Sukhbir Singh son of Sh.Mehar Singh that as per bye laws, the area of operation of the Nectar Cooperative House Building Society Ltd. Registration No.648 was only limited to Block Majri. It was further made clear, in this letter, that since the area of operation of the Society, aforesaid, was Block Majri circle only, therefore, no question arose of conducting the operation by the concerned Society, in the circle of Mohali. Since the Society, in question, had no area of operation, in circle Mohali, and, on the other hand, the area of its operation, was limited to Block Majri only, it misrepresented to the complainant, that it was going to develop a project, within the master plan of Mohali. It was, on the basis of such misrepresentation, having been made by the Opposite Parties, that the complainant was misled to deposit the amount, aforesaid, for the allotment of a plot/flat by issuing a share. Naturally when the Society had no area of operation relating to Sector 74, Mohali, it could not develop any project therein. By misleading the prospective vendees, in this regard, the opposite parties, thus, indulged into unfair trade practice.
22. The District Forum was, thus, right in holding that, by not refunding the amount with interest, despite demand, to the complainant, and by misleading him, in the manner, referred to above, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
23. No other point, was urged, by the Counsel for the appellants.
24. The order of the District Forum ,does not suffer from any illegality or perversity, warranting the interference of this Commission.
25. For the reasons recorded above, the application for condonation of delay is dismissed. Consequently, the appeal is dismissed, being barred by time, as also on merits, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
26. Certified Copies of this order be sent to the parties, free of charge.
27. The file be consigned to the Record Room, after compliance.
Pronounced.
May 1,2012 sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER *Js STATE COMMISSION (Appeal No.112 of 2012) Present:
Sh.Gunjan Rishi, Advocate for the appellants.
Dated:
ORDER Vide our detailed order of the even date, recorded separately, the application for condonation of delay has been dismissed. Consequently, the appeal has been dismissed, being barred by time, as also on merits, at the preliminary stage, with no order as to costs.
(Neena Sandhu) (Justice Sham Sunder ) Member President