State Consumer Disputes Redressal Commission
Country Colonizers Private Limited, vs Priti Kapur on 11 February, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 167 of 2008
Date of institution : 20.2.2008
Date of Decision : 11.2.2011
Country Colonizers Private Limited, Senior Manager, SCO No. 656-657, Ist
Floor, Sector 70, Mohali-160055.
....Appellant.
Versus
1. Priti Kapur w/o Sh. Rajiv Kapur, House No. 1767, Phase-III B-2, Mohali
(Punjab)
...Respondent.
2. Neeraj V. Puri, Managing Partner of Alpha Project and Services, D-
178, Phase VIII-B, Industrial Area, Mohali (Punjab).
3. Sh. Yaman Sandhu, Managing Head and Authorized Signatory of M/s
Country Colonizers Private Limited, Senior Manager, SCO No. 656-
657, Ist Floor, Secotr-70, Mohali, Punjab.
...Performa Respondents.
First Appeal against the order dated 26.12.2007 of
the District Consumer Disputes Redressal Forum,
Ropar.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellant : Sh. Anandeshwar Gautam, Advocate For respondent No.1 : Sh. Vishal Gupta, Advocate For respondents No.2&3 : Dispensed with.
INDERJIT KAUSHIK, PRESIDING MEMBER:
Country Colonizers Private Limited, appellant (in short "the appellant") has filed this appeal against the order dated 26.12.2007 passed by the learned District Consumer Disputes Redressal Forum, Ropar (in short "the District Forum").
2. Facts giving rise to the present appeal are that Smt. Priti Kapur respondent No.1/complainant (in short, "respondent No.1") filed the complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act"), pleading that respondent No. 1 in order to settle at Mohali and to have her own house, intended to buy a plot in an around Mohali, to construct a First Appeal No. 167 of 2008 2 house. The appellant issued advertisement under caption "West End Estate", claiming to be a big colonizer and invited applications from the prospective buyers to buy plots to be developed by the appellant in Sector- 85, S.A.S. Nagar, Mohali. Respondent No. 2 was agent of the appellant for booking of the plots. Respondent No. 1 purchased application form through respondent No. 2 for purchasing the plot.
3. After inspecting the plan prepared by the appellant for carving out the plots and other infrastructure such as market, road amenities etc., respondent no. 1 selected a corner plot to be booked with the appellant and after consent of respondent No. 3, applied vide application dated 20.8.2006 for allotment of that particular residential plot. The price of the said plot was settled at Rs. 16,000/- per sq. yd. and respondent No. 1 got booked the specific plot measuring 350 sq. yds. Described as "First Corner Plot of 350 sq. yds. Facing 80 feet wide and 40 feet dividing road on back of business-cum-regional commercial complex", Sector-85, Mohali. The appellant through respondent No. 3 agreed to earmark the selected corner plot and to allot the same to respondent No. 1 and obtained a cheque No. 084803 dated 20.8.2006 of UTI Bank, Chandigarh for a sum of Rs. 5,60,000/- from respondent No. 1 on 21.8.2006 and noted down on the back of the cheque, receipt of 10% booking amount for first plot at main entrance (C-5) adjoining 80 feet road and 40 feet dividing road on back of business-cum-regional complex. The endorsement was signed by respondent No. 3 in the presence of respondent No. 2 and a separate receipt was also issued. Respondent No. 3 in provisional registration form dated 20.8.2006, appended his signatures on endorsement of booking of the said particular corner plot of 350 sq. yds.
4. Thereafter, on the demand of the appellant, another cheque bearing no. 84804 dated 10.10.2006 of UTI Bank, Chandigarh for a sum of Rs. 5,60,000/- was issued in favour of the appellant as second installment and similar endorsement was made but that cheque was returned and First Appeal No. 167 of 2008 3 another cheque dated 21.10.2006 bearing No. 084805 of UTI Bank, Chandigarh for a sum of Rs. 3,40,000/- was issued in favour of the appellant. On that cheque also, the above endorsement of corner plot was made and a separate receipt for the said amount was also issued. The installments were paid as per the payment plan as agreed between the parties and as per terms and conditions.
5. Appellant and respondents No. 2 & 3 by way of an agreement with respondent No. 1, agreed to sell the corner plot measuring 350 sq. yds. @ Rs. 16,000/- per sq. yd. and received Rs. 9,00,000/- from respondent No. 1 in two installments.
6. The plan prepared by the appellant of Sector-85 to be developed, was with the appellant and no copy was ever supplied to respondent No. 1 with ulterior motive and malafide intention. Respondent No. 1 received a letter dated 8.11.2006 from the appellant, asking her to meet the representative of the appellant between 13.11.2006 to 15.11.2006 for selection of plot and execution of buyer agreement. Respondent No. 1 has already selected the plot while booking and made the payment accordingly and was always ready and willing to execute the buyer agreement of that particular plot with the appellant, but the appellant and respondents No. 2 & 3 backed out from their promise to sell the particular booked plot with ulterior motive and malafide intention or else, respondent No. 1 should not have paid this much amount.
7. Consequent to letter dated 8.11.2006, respondent No. 1 along with her husband visited the representative of the appellant on 13.11.2006 and selected the same plot which at the time of booking, was agreed to be sold to respondent No. 1 but the appellant backed out of the agreement and asked respondent No. 1 to select any other plot in place of the earlier selected plot at the entrance to C-5, but respondent No. 1 did not agree.
8. Smelling something fishy on the part of the appellant and finding that they were backing out, respondent No. 1 on 13.11.2006 itself First Appeal No. 167 of 2008 4 issued a registered letter to the appellant at their Delhi and Mohali address and also to respondent No. 2 through regd. AD and respondent No. 1 again received communication dated 18.11.2006 from CMO of the appellant, acknowledging receipt of notice dated 1.11.2006 and intimated that he would meet personally respondent No. 1 at Mohali at a day to be notified in advance and on 20th December, 2006, a telephonic call was received and respondent No. 1 met Sh. Yaman Sandhu, representative of the appellant. Sh. Yaman Sandhu in order to deprive respondent No. 1 of the selected plot, took the plea that the area of the plot which was booked, has been increased considerably and the entrance to such plot, was also changed due to construction of security gate etc. and the same was got approved from PUDA. The plan for developing the plot was also got approved from PUDA, but the appellant should not have changed the earlier plan, but it was done on false pretext and against the terms of the agreement which amount to unfair practice to harm the consumer.
9. Knowing the malafide intention of the appellant, respondent No. 1 again issued a registered notice dated 20.12.2006 to the appellant at their Mohali and New Delhi address and also to Sh. Yaman Sandhu respondent No. 3, which were duly received, but nothing was heard from the appellant and its management or respondent No. 3. The appellant and respondents No. 2 & 3 have backed out from their promise of agreement to allot a particular plot booked by respondent No. 1 and they had done this with malafide intention and ulterior motive which has caused harassment and mental tension to respondent No. 1 and act of the appellant amounts to deficiency in service and breach of agreement. Hence, it was prayed that the appellant and respondent No. 3 be directed to:-
(i) allot and put respondent No. 1 in possession of selected plot measuring 350 sq. yds. Described as "First Corner Plot of 350 sq. yds facing 80 feet wide and 40 feet dividing road on back of business-cum-regional commercial complex", Sector-85, Mohali, First Appeal No. 167 of 2008 5 after receiving the balance installments as agreed between the parties;
(ii) not to make allotment of this plot to any other person and also not to change the plan of plots made earlier by the appellant and shown to respondent No. 1 at the time of booking;
(iii) not to alter the booked plot of respondent No. 1 or its area and if the same has been allotted to somebody else, the allotment be cancelled and the possession may not be delivered to such person;
(iv) to pay Rs. 18,00,000/- as compensation and damages for
causing harassment and inconvenience; and
(v) pay Rs. 35,000/- as costs of litigation.
10. In the reply filed on behalf of the appellant and respondents no. 2 & 3, it was submitted that the appellant is duly registered company under the Companies Act and is licensed by the concerned department in accordance with the Punjab Regional Town Planning Act, 1995 and is authorized to develop its mega township under the name of "West End Estate", Sector-85, SAS Nagar, Mohali, Punjab vide licence issued by the competent authority/Punjab Urban Development Authority, Mohali. The company has its office at Mohali and nowhere else and all transactions are done in the office of the company at Mohali. It was admitted that respondent No. 1 approached the appellant through respondent No. 2 by moving an application for provisional registration for allotment of residential plot at West End Estate, Mohali. The jurisdiction of the District Forum and of any other court is excluded as per the terms and conditions.
11. The value of the plot is approximately Rs. 56.00 lacs excluding other charges, therefore, the jurisdiction of the District Forum is excluded under the Act. Respondent No. 1 sought all the details regarding the project and procedure for registration at the office of respondent No. 2 and the complaint is barred both on account of pecuniary as well as territorial jurisdiction under the Act. The arbitration proceedings had already been First Appeal No. 167 of 2008 6 initiated at the instance of the company and Sh. S.S. Malik, Senior Advocate has been appointed as Arbitrator for settling the dispute, but respondent No. 1 has deliberately chosen to file the present complaint, by stating wrong facts and without disclosing the terms and conditions of the application and the complaint may kindly be dismissed. Short reply is filed and the appellant and respondents No. 2 & 3 reserve right to file a detailed reply on merits and prayed that ex-parte injunction issued vide order dated 16.4.2007 may be vacated and respondent No. 1 be directed to resort to the appropriate proceedings in accordance with the terms and conditions of the provisional registration.
12. Parties adduced evidence in support of their respective versions by way of affidavits and documents.
13. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the jurisdiction of the District Forum is not barred including the territorial jurisdiction. There is no evidence to show that the complainant (respondent No. 1) had ever failed to abide by the terms and conditions of the application for the provisional allotment. It has not been shown that there was any specific agreement between the parties that for getting preferential plot allotted as noted in endorsement at difference places in the form on or the back of the cheques, payment of PLC as per the printed clause was made a condition precedent and opposite parties (appellant and respondents No. 2 & 3) cannot wriggle out of the said endorsement. To deny the allotment of preferential plot to respondent No. 1 in the wake of aforesaid facts and circumstances, is deficiency in service on the part of the opposite parties. The complaint was accepted and the appellant and respondents No. 2 & 3 were directed to allot and put respondent No. 1 in possession of the selected first corner plot of 350 sq. yds. facing 80 feet wide and 40 feet dividing road at the back of the business-cum-regional commercial complex, Sector-85, Mohali and to First Appeal No. 167 of 2008 7 receive the balance installments of the price of the plot from respondent No. 1, as agreed between the parties. The appellant and respondents No. 2 & 3 were further directed not to allot the said plot to any other person and not to change the plan of the building made earlier by the appellant and shown to respondent No. 1 at the time of booking. Further direction was given not to alter the booked plot or its area and also directed to pay Rs. 2,000/- as costs of litigation.
14. Aggrieved by the impugned order dated 26.12.2007, the appellant has come up in the appeal.
15. We have gone through the pleadings of the parties, perused the record of the learned District Forum as well as heard the arguments of the learned counsel for respondents No. 1 and gone through the written submissions filed by the counsel for the appellant.
16. During the pendency of the appeal, counsel for the appellant submitted that in case respondent No. 1 pays the PLC as agreed, then respondent No. 1 will be allotted a corner plot as per the agreement and the counsel for respondent No. 1 agreed to pay the same and the matter was referred to the Lok Adalat, but the matter could not be settled in the Lok Adalat and the case was again listed for arguments and the appellant filed the written arguments.
17. In the written arguments filed by the learned counsel for the appellant, it was submitted that the District Forum has exceeded its jurisdiction and the order passed by the District Forum is in nullity. The District Forum has not taken into consideration the various factors to examine the status of locus of respondent No. 1, who is the applicant and the application is under consideration for allotment of the plot and no right, title or interest has accrued in favour of respondent No. 1. The payment as evaluated at the time of submission of the application was not paid by respondent No. 1 and now the same has increased manifolds. The District Forum has ignored the rules observed in the land purchase transactions First Appeal No. 167 of 2008 8 and allotment of land by way of draw of lots by the Companies or any Government body making allotments of plot pursuant to applications made by a person. Payment for preferential location charges (P.L.C.) was required to be made at the time of the submission of the application by respondent No. 1 but the same was not made and now the same cannot be made at this stage. The judgment of the District Forum is based on conjectures and is not based on the facts and the evidence and the pleadings and prayed that the appeal be accepted as the order is illegal.
18. It was contended on behalf of respondent No. 1 that respondent No. 1 applied for purchasing a plot vide application dated 20.8.2006 and selected a particular corner plot and booked the same with the appellant with consent of respondents No. 2 and 3. A cheque dated 20.8.2006 for the amount of Rs. 5,60,000/- for that particular plot was given which was received by the appellant through respondent No. 3 and on the back of the receipt of the cheque, it was clearly mentioned that the first plot at main entrance (C-5) facing 80 feet wide and 40 feet driving road on the back of business-cum-regional commercial complex was booked and this endorsement was signed by respondent No. 3 and a separate receipt was also issued against Rs. 5,60,000/-. Thereafter, another cheque dated 21.10.2006 for Rs. 3,40,000/- was issued in favour of the appellant as second installment and the similar endorsement was made. It was argued that the appellant or respondents No. 2 & 3 have not bothered to file any detailed reply and they wanted the complaint to be dismissed on the grounds that arbitration proceedings are pending and the District Forum has no jurisdiction, but after deciding those issues, the appellant and respondents No. 2 & 3 did not file any detailed reply and how they cannot wriggle out of their undertaking because no evidence has been led to rebut the evidence led by respondent No. 1. It has been contended that for preferential location charges i.e. @ PLC Rs. 1237/- per sq. yd. were to be paid etc. as per Ex. C6 and the price list-cum-payment plan Ex. C-7 First Appeal No. 167 of 2008 9 support the case of respondent No. 1. The general terms and conditions for registration for allotment of residential plots at West End Estate, SAS Nagar, Mohali Ex. C-1/1 further prove the same. Endorsements Ex. C-13, Ex. C-14 and Ex. C-16A clearly prove that the above corner plot was sold to respondent No. 1 and the appellant and respondents No. 2 & 3 cannot back out from the same.
19. We have considered the submissions made by the learned counsel for the parties.
20. Ex. C-3 is the application for registration and allotment of a residential plot dated 20.8.2006 and alongwith this Rs. 5,60,000/- were remitted through cheque No. 084803 dated 20.8.2006 drawn on U.T.I. Bank Ltd. Sector 34A, Chandigarh in favour of M/s Country Colonisers Pvt. Ltd. i.e. the appellant. Exs. C-4 and C-5 are the personal details of respondent No. 1 and her son. Ex. C-6 is the provisional registration issued on behalf of the appellant and at the time of provisional registration booking was done for "First Corner Plot of 350 Sq. yds. facing 80 feet wide and 40 feet dividing road on back of business-cum-regional commercial complex". Ex. C-7 is the price list-cum-payment plan and preferential location charges(P.L.C.) were to be paid @ Rs. 1237.50p per Sq. yard. Ex. C-9 are the terms and conditions and for a corner plot 7.5% of the basic sale price was to be paid and the basic sale price of the plot was as on the date of booking. Ex. C-10 are the highlights of the Western Estate. Vide cheques Exs. C-11 & C-12 the payment was made and on the back of it the booking amount for the above corner plot was mentioned and Ex. C-15 is the receipt of the payment made. Ex. C-16 is another cheque dated 21.10.2006 regarding 2nd installment and again on the back of it the official of the appellant confirmed that this is the 2nd installment for the above corner plot giving complete details. Receipt is Ex. C-17. Ex. C-19 is written by respondent No. 1 to Mr. Yaman Sandhu of appellant vide which respondent No. 1 reiterated that Rs. 9,00,000/- have been paid in two First Appeal No. 167 of 2008 10 installments and she wants the same plot, which was booked. The appellants has also relied upon the same documents including the terms and conditions and the preferential location charges (PLC). Ex. R-3 is the receipt by which payment of Rs. 3,40,000/- was made and Ex. R-5 is receipt for the payment of Rs. 5.60 lacs. No other document has been filed by the appellant to rebut the evidence led by respondent No. 1.
21. The perusal of all these documents clearly show that the booking was done for "First Corner Plot of 350 sq. yds. Facing 80 feet wide and 40 feet dividing road on back of business-cum-regional commercial complex", Sector-85, Mohali" and as per the terms and conditions of the allotment, vide Ex. C-9 7.5% of the basic sale price was to be paid for corner plot and this fact was also mentioned on the back of the cheques Exs. C-11 and C-12 signed on behalf of the appellant and the writing Exs. C-13 & C-14 wherein the 1st and 2nd installments were taken for the above mentioned plot. The appellant has now taken the totally different plea that after the approval of the plan by PUDA the corner plot could not be allotted and the entire payment has not been made. This plea of the appellant is not tenable because from the very beginning respondent No. 1 has booked the corner plot of 350 Sq. Yds. as described above in detail including in the provisional registration and the appellant agreed to it and the appellant was entitled to only the preferential location charges (PLC) as mentioned above and it is not the case of the appellant that respondent No. 1 has refused to pay the preferential location charges (PLC) but rather the deficiency is on the part of the appellant for not allotting the plot as agreed and having received the major amount of Rs. 9,00,000/- about 5 years back. Jurisdiction of the District Forum cannot be ousted by way of any arbitration clause and the District Forum has nowhere exceeded its jurisdiction and the pleadings of the appellant are not supported by any evidence.
First Appeal No. 167 of 2008 11
21. The order of the District Forum is well reasoned and detailed one and there is no ground to interfere with the same. Accordingly, the appeal being without any merit is dismissed with special costs of Rs. 10,000/- and the order of the District Forum is affirmed and upheld.
22. The arguments in this appeal were heard on 31.1.2011 and the orders were reserved. Now the order be communicated to the parties.
23. The appellant had deposited an amount of Rs. 1,000/- with this Commission at the time of filing of the appeal. This amount of Rs. 1,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
24. Remaining amount shall be paid by the appellant to respondent No. 1 within 30 days from the receipt of the copy of the order.
25. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Inderjit Kaushik)
Presiding Member
February 11, 2011. (B.S. Sekhon)
as Member