State Consumer Disputes Redressal Commission
M/S Panache Infra vs Vishal Guleria on 2 February, 2016
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 38 of 2016 Date of Institution 27.01.2016 Date of Decision 02.02.2016 M/s Panache Infra, through its Partner, having Office at SCO No. 34-35-36-37, Second Floor, Cabin 201-A, Sector 9-D, Chandigarh (Old Address), now having office at SCO No.156-160, 2nd floor, Cabin No.226, Sector 8-C, Chandigarh. 2. Tarun Vats, Partner, M/s Panache Infra, having office at SCO No. 34-35-36-37, Second Floor, Cabin 201-A, Sector 9-D, Chandigarh (Old Address), now having office at SCO No.156-160, 2nd floor, Cabin No.226, Sector 8-C, Chandigarh. 3. Amit Chugh, Partner, M/s Panache Infra, having office at SCO No. 34-35-36-37, Second Floor, Cabin 201-A, Sector 9-D, Chandigarh (Old Address), now having office at SCO No.156-160, 2nd floor, Cabin No.226, Sector 8-C, Chandigarh. .....Appellants/Opposite Parties. Versus Vishal Guleria son of Sh.Bikram Singh Guleria, resident of House No. 13-A, Shivjot Enclave, Kharar - 140301, present at E-201, Aero Homes, Gazipur Road, Zirakpur, Punjab ......Respondent/Complainant. BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:
Sh.Inderdeep Singh, Advocate for the appellants PER PADMA PANDEY, MEMBER This appeal has been filed by the Opposite Parties, against the order dated 21.12.2015, rendered by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the Forum only), vide which, it allowed Consumer Complaint No.158 of 2015, filed by the complainant, with the following directions: -
"10. In the light of above observations, we are of the concerted view that the Opposite Parties are deficient in rendering proper service to the complainant and indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are, jointly & severally, directed:-
i) To refund the amount of Rs.9,65,000/- to the complainant alongwith interest @12% per annum from the respective dates of deposit till realization.
ii) To make payment of Rs.1,00,000/- to the complainant towards compensation for causing mental and physical harassment.
iii) To make payment of Rs.25,000/- to the complainant as litigation expenses.
11. This order shall be complied with by the Opposite Parties within one month from the date of receipt of its certified copy; thereafter, the Opposite Parties shall pay the amount at Sr. No.(ii) above with interest @ 12% per annum from the date of filing of the complaint till realization, besides complying with directions at Sr. No.(i) and (iii) above."
2. The facts, in brief, are that Opposite Parties No.2 and 3 approached the complainant and told that they launched/floated a scheme, under which, the complainant would invest Rs.7,25,000/- and the said amount would be used to develop agricultural land measuring 525 sq. yards i.e. unit. It was also assured that if the aforesaid amount of Rs.7,25,000/- made by the complainant then the Buy Back Agreement would be executed under the scheme, under which, the complainant would get within 12 months from the date of Buy Back Agreement a total sum of Rs.9 lacs and post-dated cheque of Rs.9 lacs would be handed over to the complainant at the time of Buy Back Agreement or Registry, Sale Deed of the unit, in favour of the complainant. On acting upon the abovesaid assurances made by the Opposite Parties, the complainant booked a unit measuring 525 sq. yards by investing a total sum of Rs.7,25,000/- in the scheme of the Opposite Parties vide receipts (Annexure C-1 to C-3). Buy-Back Agreement (Annexure C-4) was also executed between Opposite Party No.1 and the complainant on 17.06.2013. It was stated that the Opposite Parties issued one post-dated cheque dated 17.06.2014, in favour of the complainant, amounting to Rs.9 lacs, as a security for the aforesaid deposited amount and assured return. It was further stated that before the complainant could present the aforesaid cheque of Rs.9 lacs, Opposite Parties No.2 and 3 approached him (complainant) and requested not to present the aforesaid cheque for clearance due to insufficiency of funds. Thereafter, Addendum Agreement (Annexure C-5), to the Buy Back Agreement dated 17.06.2013,was executed between the parties, whereby, they in discharge of their legal liability, issued as many as five cheques of small amounts (Annexure C-6 Colly) and took back the original cheque of Rs.9 lacs (Annexure C-7). It was averred that Opposite Party No.2 approached the complainant in December, 2014 with a request that instead of presenting of earlier cheques of small amounts, he should take a new cheque of Rs.9,65,000/- only and the same would be definitely honoured. Acting on the said assurance, the complainant returned the cheques, which were issued in pursuance to the addendum agreement. Further, Opposite Party No.2 had also taken back the original Buy Back Agreement from the complainant and the same had not been returned back to him, till date. Thereafter, the complainant presented the aforesaid cheque of Rs.9,65,000/- dated 25.12.2014, for encashment to his Bankers, but the same had been received back dishonoured by the bank of Opposite Parties on 02.02.2015 with the remarks "Insufficient Funds". Photocopies of the cheque mentioned above and cheque returning memos are Annexure C-8 and C-9. Pursuant to the dishonour of the cheque issued by the Opposite Parties, the complainant served the Opposite Parties with statutory notice under Section 138 of the Negotiable Instruments Act, but despite of service of notice on the Opposite Parties, they failed to make the payment of even a single penny. It was further averred that the complainant visited the office of the Opposite Parties number of times for the redressal of his grievance, but to no avail. It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged 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 (in short the "Act" only), was filed.
3. In their written statement, the Opposite Parties, stated that the complainant invested an amount of Rs.7,25,000/- for investment purposes only and was promised that either an appreciated amount would be returned back to him or he would be given a piece of agriculture land measuring 525 sq. yard and the sale deed would be executed in his favour. It was pleaded that the complainant was given a security cheque of Rs.9 lacs and this deal was purely commercial in nature and there was no Consumer-Seller relationship. It was further pleaded that there was no occasion for the complainant to encash the said security cheque, as the Opposite Parties told him that they wanted to exercise the option to execute the sale deed and not interested in paying back the appreciated return, as per the Agreement but he requested for grant of time, as he did not want to get the sale deed executed and willing to wait if the property market improves, so that he can directly be benefitted on the appreciation on his investment, as the same was made for the purpose of free sale. It was averred that the complainant insisted for return of amount because on account of crisis in the property market and it would be very difficult to resell the land. It was admitted that the cheque of Rs.9 lacs was renewed being rendered useless due to expiry of time. It was asserted that all this was done to facilitate the complainant for not getting the sale deed executed, as per the terms of the Agreement. It was further pleaded that there was no occasion for the complainant to present the cheque of Rs.9,65,000/- dated 25.12.2014, since as per the terms of the Agreement dated 17.6.2013, the Opposite Parties were always willing and ready to execute the sale deed. The cheque was never issued to be presented, as it was merely a security cheque and could have been encahsed only on the option of the Opposite Parties, in case, they would have refused to execute the sale deed. It was further asserted that the Opposite Parties never received any alleged notice under Section 138 of the Negotiable Instruments Act. Therefore, the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.
4. The complainant, filed rebuttal by way of affidavit to the written statement filed by the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties.
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 of the case, the Forum, allowed the complaint, vide the impugned order, as stated above.
7. Feeling aggrieved, the Opposite Parties, filed the application for condonation of delay of 3 days in filing the appeal alongwith the instant appeal.
8. We have heard the Counsel for the appellants, on the application, aforesaid, and have gone through the evidence and record of the case, carefully.
9. The Counsel for the appellants/Opposite Parties submitted that the Forum did not consider the real fact regarding that the respondent/complainant is not consumer under Section 2-D of the Consumer Protection Act, 1986. He further submitted that the appellants were always willing and ready to execute the sale deed in favour of the complainant as per the terms of the Agreement dated 17.06.2013 and due to fall in the prices of property, the complainant was adamant on encashing the security cheque, whereas, it has been clearly mentioned in the Agreement that the post-dated cheque(s) issued are only security cheque/s, which can be encashed only, if the appellants do not execute the registration or chooses to return back the appreciation amount and not to execute the sale deed. He further submitted that at present moment, the Opposite Parties are ready and willing to do so. He further submitted that at one hand, the respondent/complainant filed this consumer complaint knowing well that there is no consumer relation between the appellants and the respondent and on the other hand, he filed the complaint under Section 138 of N.I.Act in order to recover the same amount and he cannot avail the two remedies at the same time for the same very cause as it is not permissible under the law. He prayed for allowing the appeal and setting aside the impugned order.
10. After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellant, 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.
11. The first question, that falls for consideration is, as to whether, the Forum rightly held that the complainant fell within the definition of consumer? The Counsel for the appellants/Opposite Parties submitted that as per the Buy Back Agreement dated 17.06.2013, the complainant is an investor, who is investing in the project for profit and, as such, he did not fall within the definition of 'consumer' as per Section 2(d) of the Consumer Protection Act, 1986. However, the complainant has specifically stated in para No.3 of his complaint that he was living in a rented accommodation and had meagre source of income through small private job, thought of to invest hard earned money saved over a period of time in the scheme launched by the Opposite Parties. It is the admitted fact that under the buyback option, the complainant was to get assured return of Rs.1,75,000/-. The said fact also mentioned in the preliminary objection of the reply filed by the Opposite Parties. The Forum rightly stated that in these set of circumstances, there was nothing speculative about the same. Further, it was also stated in the Buyback Agreement dated 17.06.2013 to the extent that Promoters/Opposite Parties will give assured return of 24.138% per annum to the investors. Even, no evidence was produced by the Opposite Parties that the complainant is a property dealer, who deals in the sale and purchase of the property, and, as such, he purchased the unit, in question, for the purpose of investment, with a view to resell the same, as and when, there is escalation, in the prices of real estate. So, we are of the view that the Forum rightly relying upon the judgment passed by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, as mentioned in para No.7 of the impugned order i.e. Kavita Ahuja Vs. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. & Ors., Consumer Case No.137 of 2010, 145 of 2010 and 146 of 2010, and the Forum rightly held that buy back option is the service and the complainant fell within the definition of a consumer.
12. The next question, that falls for consideration, before us, is, as to whether the cheques issued by the Opposite Parties to the complainant were in the nature of security cheques and were not entitled to be encashed? The appellants/Opposite Parties duly attached Buy Back Agreement, which was executed between the parties, on 17.06.2013 as Annexure A-1. A bare perusal of the said Agreement clearly reveals that at point No.(6) of the said Agreement, it is clearly mentioned that after 1 year, investor will have the choice to present the cheque in the bank and terminate this Agreement. In this case, the Opposite Parties failed to get the registration of the unit in favour of the complainant, he took back the original Agreement and issued fresh cheques of small amounts, after taking back the cheques originally issued. Even, Addendum Agreement (Annexure C-5) was executed between the parties and cheque of Rs.9 lacs was replaced with the cheque of small amounts. The Forum rightly held that it was clearly written in the above Agreement that the complainant can take legal action, if these fresh cheques are not honoured. In these circumstances, we are of the view that the Forum rightly held that it is safe to infer that under buyback scheme of the Opposite Parties, the complainant was entitled to encashment of above said cheque. Thus, the order of the Forum, being legal and valid, is liable to be upheld.
13. The order passed by the Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission.
For the reasons recorded above, the appeal, filed by the appellants/Opposite Parties, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs and consequently, the application for condonation of delay is also dismissed being rendered infructuous. The order of the 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.
02.02.2016 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER rb