State Consumer Disputes Redressal Commission
Harish Dhingra vs Taneja Developers & Infrastructure ... on 16 January, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.121 of 2014 Date of Institution : 05.08.2014 Order Reserved on: 13.01.2017 Date of Decision : 16.01.2017 Harish Dhingra son of H.K. Dhingra, resident of H.No. 383, Labour Bureau Enclave, Sector 49-A, Chandigarh. .....Complainant Versus 1. M/s Taneja Developers and Infrastructure Ltd., 9 Kasturba Gandhi Marg, New Delhi. 2. Regional Office, Taneja Developers and Infrastructure Ltd, Office site on N.H. 21, Chandigarh-Kharar Road, Near Village Balongi, District Mohali. 3. Office of Chief Town Planner, Punjab Sector 18-B, Chandigarh ....Opposite Parties Consumer Complaint U/s 17(1)(a) of The Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Shri J.S Gill, Member.
Present:-
For the complainant : Sh. R.S Bal, Advocate For opposite parties no.1&2 : Sh. Manoj Vashishtha, Advocate For opposite party no.3 : None . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs on the averments that OPs no.1 and 2 Taneja Developers and Infrastructure Ltd purchased land on Mohali-Kharar Road NH 21 and induced the general public through their dealers to invest in their future projects. Vinod Kumar Sharma resident of House No. B-1, DDA Flats, Sarita Vihar New Delhi 110076, deposited Rs. 3 lac through a cheque no. 506766 drawn on Corporation Bank Sarita Vihar New Delhi. The said amount was against an advanced future project for a residential plot of 250 sq. yards. The OPs issued receipt dated 16.06.2005 with number M/P/104109 and MPP 10733. OPs no.1 and 2 after obtaining necessary permission from GMADA/PUDA and after calculating its cost and other expenses, offered 250 sq. yards residential plot in TDI City Mohali on NH 21 @ Rs.6500/- per sq. yard. The total amount of Rs.16,25,000/- plus Rs.4,12,500/- as EDC. Sh. Vinod Kumar Sharma transferred the said rights of the residential plot in the name of Mr. Harish Dhingra son of Sh. H.K. Dhingra, the complainant in this case and stamped the said plot in the name of the complainant on the backside of the said receipt. The OPs/company demanded Rs.1,87,500/- against installment no.2 from the complainant, who deposited the same through a cheque no. 959222 dated 31.12.2007. The complainant was further asked to deposit another amount as EDC-1, which was to the tune of Rs.2,06,250/-, which was deposited by the complainant on 05.08.2008 and receipt to this effect was issued. OPs no.1 and 2 had been telling the complainant repeatedly that soon, the allotment letter of the said residential plot would be issued to the complainant, but no such allotment letter has been issued. Instead of allotting the plot to the complainant, OPs no.1 and 2 started demanding more money from the complainant. The complainant came to know that the said project of the company had only been approved by the appropriate authorities of the government. The complainant submitted a forwarding letter to the Manager of the said company along with cheque no. 151951 dated 06.06.2011 for a sum of Rs.3,25,000/- as due against the said plot. The OPs/Company refused to accept the said cheque because the said cheque was issued by one Jasbir Singh and not the complainant. The said cheque was returned to the complainant only on the ground that it was not issued by the complainant. The OPs had intentionally refused to accept the said cheque as their intention was to just cancel the said plot and sell it to somebody else. The complainant again sent a fresh cheque of the same amount i.e. Rs.3,25,000/- on his own name on 28.11.2011 along with forwarding letter on 28.11.2011, which was returned to complainant by OPs on the ground of delay and plot has been cancelled in the name of the complainant. The complainant approached office of the OPs no.1 and 2 in this regard, but to no use. On 14.01.2014, the complainant again sent one written letter to OPs demanding the allotment letter, but nothing has been done so far in that behalf. The OP's act is based on cheating the complainant. The complainant has, thus, filed the complaint directing OPs to issue allotment letter because it was the bounden duty of the OPs as per company's own schedule, OPs be directed to reserve the residential plot during the pendency of this complaint as there was a possibility that it might sell all the reserved residential land. The OPs be further directed to pay compensation of Rs.5 lac on account of mental harassment with interest on the amount @ 30% since 2006 plus 50% EDC on 05.08.2008 and sought some other reliefs mentioned in the complaint.
2. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant raising preliminary objections that complaint is not maintainable and is liable to be dismissed. The same is barred by limitation. The complainant is not consumer of OPs under Section 2(1)(d) of the Consumer Protection Act. The disputed questions of facts and law are involved in the present complaint, which can be proved or disproved by lending voluminous evidence and therefore present complaint cannot be entertained by this Commission in the summary jurisdiction under the CP Act. The complainant purchased the registration rights of Sh. Vinod Kumar Sharma and on request of Vinod Kumar Sharma, his registration deposit rights were transferred in favour of the complainant. After getting his rights transferred, the complainant made subsequent payments of Rs.1,97,000/- on 21.12.2007 and Rs.2,06,250/- on 05.05.2008. Thereafter, he failed to follow the payment schedule, as prescribed in the application form itself. Therefore, his registration was cancelled on 06.08.2009. All these material facts have been concealed by the complainant. On merits, it was averred that Government of Punjab with a view to attract new investments in the State, formulated Industrial Policy-2003. Housing and Urban Development were also made the subjects of the said policy. The OP Company with a view to set up a mega housing project in village Bhogomajra and Village Behrampur (Mohali) submitted its proposal to Directorate of Industries and Commerce Punjab to develop a Mega Housing Project with an investment of over Rs.310.57 crores. The said proposal was accepted by Directorate of Industries and Commerce Punjab and a letter of intent was issued in favour of OP company on 31.08.2006. The complainant has deliberately not produced on record the cancellation letter. The OP company was also not in a position to produce on record the said cancellation letter, as a fire broke out in the office of OP company on 20.10.2010 and most of the external storage devices and the main server was damaged. A DDR no. 32-A was recorded by the police station New Delhi on 20.01.2010 with regard to incident of fire. Despite best efforts put in by the officials of OPs company, the record pertaining to cancellation of registration with regard to allotment of plot in favour of complainant could not be regenerated. Rest of the averments have been denied by OPs and it prayed for dismissal of the complaint.
3. The complainant tendered in evidence his affidavit Ex.C-A, affidavit of Mohan Dutt husband of the complainant along with copies of documents Ex.C-1 to Ex.C-10. As against it; OPs tendered in evidence affidavit of Sh.Rohit Gogia authorized signatory of OPs Ex.OP1-2/A along with copies of documents Ex.OP1-2/1 to Ex.OP-1-2/2 and closed the evidence.
4. We have heard learned counsel for the parties and have also referred to evidence on the record.
5. The complainant tendered the evidence to prove his case. Ex.C-1 is receipt no.10410 dated 16.06.2005 with regard to deposit of Rs. 3 lac by Vinod Kumar Sharma through cheque no. 506766 dated 06.06.2005 with OPs. Ex.C-A is affidavit of Harish Dhingra in whose name the registration was transferred by Vinod Kumar Sharma. Ex.C-2 is receipt regarding transfer of registration in the name of the complainant on 18.01.2006. Ex.C-3 is receipt dated 31.12.2007 of Rs.1,87,500/- only through cheque no.959222 dated 31.12.2007 drawn on HDFC Bank Ltd, Sector 35-B, Chandigarh received by OPs from Harish Dhingra complainant. Ex.C-4 is receipt no. 83971 dated 05.08.2008 of the amount of Rs.2,06,250/- in favour of OPs. Ex.C-5 is document bearing reference no. 10733 dated 18.01.2006 sent to the OPs by complainant for sending the amount of Rs.3,25,000/- and cheque is Ex.C-6 in this regard. Ex.C-7 is letter for payment of Rs.3,25,000/- and cheque is Ex.C-8. The representations moved by the complainant to OPs are Ex.C-9 and Ex.C-10 regarding allotment letter of the plot.
6. As against it; OPs tendered in evidence affidavit of Rohit Gogia authorized signatory of OPs Ex.OP1-2/A. Ex.OP-1-2/1 is advance registration form TDI Projects in the name of Vinod Kumar Sharma regarding offer of allotment of residential plot at the basic price of Rs.6500/- per sq. yards for Rs.16,25,000/-, the amount of Rs.3 lac was to be paid at the time of booking. Payment plan Schedules-1 and II attached with it. Ex.OP-1-2/2 is letter dated 21.01.10 sent to OPs by SHO of police station Connaught place New Delhi regarding destroy of the record of TDI Ltd in the fire, which engulfed there, but no casualty was involved. This evidence brought on record by the OPs in this case.
7. On careful examination of the documents on the file and hearing respective submissions of counsel for the parties, we proceed to decide the case on the basis of evidence in this case. The booking amount was deposited by Vinod Kumar Sharma for residential plot with OPs originally, vide receipt dated 16.06.2005 Ex.C-1 of the amount of Rs.3 lac, it was transferred in the name of Harish Dhingra, vide Ex.C-2. Harish Dhingra paid amount of Rs.1,87,500/- on 31.12.2007 vide Ex.C-3. The amount of Rs.2,06,250/-paid to OPs by complainant on 05.08.2008, vide Ex.C-4. Ex.C-5 is letter dated 06.06.2011 by complainant to OPs regarding acknowledgement of receipt of amount of Rs.3,25,000/- and cheque dated 06.06.2011 is Ex.C-6. Letter is Ex.C-7 dated 28.11.2011and cheque in this regard is Ex.C-8. The OPs received the total amount of Rs. 1,87,500/- from original person, who booked the plot, besides Rs.2,06,250/-, vide receipt Ex.C-4. The amount of Rs.3,25,000/- was received on 16.06.2011 and amount of Rs.3,25,000/- was received on 28.11.2011. The complainant's side has, thus, paid Rs.10,43,750/-. The stand of the OPs is that they have cancelled the plot, no such record has been produced by OPs in this regard, if record in one office at Delhi was gutted by fire, then OPs could have produced record from the other correspondening office of it either at Mohali or at some other place. Most of the record is computer stored and could be easily generated by the OPs. Non-production of the cancellation letter by OPs raises an adverse inference against OPs in our opinion. The document if produced would have affected the interest of OPs adversely and due to this reason, it has been withheld by it. The OPs have received the amount of Rs.10,43,750/- from the complainant's side and what was the authority with the OPs to receive such huge amount from the complainant. The OPs have also not produced on record any schedule of payment in this case, agreed upon between the parties. OPs placed on file photocopy of schedule of payment only. The digit 6500 per sq. yards has been overwritten on it and the amount of Rs. 3 lac at the time of booking is recorded only. Most of its columns are lying blank and no remarks has been mentioned in them, whether default has been committed by the complainant and they have not been filled by the OPs for some reasons. On the other hand, Sh. R.S. Bal, counsel for the complainant produced on record some payment plan of the OPs in favour of some third person Varinder Pal Singh to the effect that payment plan is sampled by OPs in that fashion. We find that the payment plan schedule record produced by OPs has rather handicapped this Commission in coming to the correct conclusion in this case. The OPs have deliberately not produced the payment plan of this flat in residential area by the complainant and prior to him his predecessor Vinod Kumar Sharma. The OPs received huge amounts from the complainant and gobbled it up only. The unfair trade practice has been defined in Section 2 (r) of Consumer Protection Act, 1986. If OPs adopted any unfair trade, practice or deceptive practice, as defined in above section elaborately, then in that eventuality the service provider can be hauled up in the Act for this deficiency on its part. In case the OPs being service provider makes a false or misleading representation, then in that eventuality, it also falls under the category of unfair trade practice as enumerated in the Act.
8. We are of this view that OPs have not produced on record the cancellation letter or the payment schedule of the property, which was in their possession and they cannot be absolved on this premise that complainant could have produced them. The onus is rather on the OPs to prove that complainant committed any default in making the payment of the installments or performing his part. The complainant has deposited the huge amounts with OPs, which indicates the good intention of the complainant, but OPs just washed off their hands on the mere pretext that their record has been gutted in the fire. The OPs could have proved this fact through some other record stored in the computer disk by regenerating it therefrom. Nothing has been done by OPs in this case. The complainant has been kept in darkness by OPs, despite recovering the huge amount of money from him about the terms and conditions of the contract. We do not agree with the submissions of the counsel for OPs that plot has been cancelled due to default of the complainant. OPs have not disclosed any default on the part of the complainant.
9. In the light of our above discussion, we accept the complaint of the complainant by directing the OPs to issue allotment letter to complainant as early as possible accompanied with schedule of payment showing it, whether it is construction linked or not within a period of one month from the date of receipt of copy of this order. The OPs are further directed not to sell this plot to any other person. We award composite compensation of Rs.75,000/- for mental harassment and costs of litigation to the complainant.
10. Arguments in this complaint were heard on 13.01.2017 and the order was reserved. Now the order be communicated to the parties.
11. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S GILL) MEMBER January 16, 2017 (ravi)