Order dictated by: Ms.Rachna Arora, Presiding Member Savita Arora, Proprietor of M/s. Ravi Exclusif has filed the present complaint under section
12 & 13 of the Consumer Protection Act on the allegations that M/s. Ravi Exclusive if the proprietorship concern of the complainant and complainant Savita Arora is the proprietor of the said concern. Due to her business activities she is not able to pursue the present complaint and personally appear before the Forum, as such she has appointed and given authority letter in favour of Sh.Ravinder Arora, who is manager of concern of the complainant and is fully conversant with the facts of the complaint. Copy of the authority letter is enclosed herewith as Ex.C-1.
2. Opposite party floated a scheme for development a Industrial Park Known as Model Industrial Park at Vallah and to allot industrial plots to the people . In this regard complainant booked plot No. 1051 industrial plot at Model Industrial Park, Vallah with the opposite party for which payment of Rs. 5,16,000/- was taken by the opposite parties from the complainant in advance for registration of allotment of said plot. This payment was made by the complainant vide cheque No. 713015 dated 12.2.2013 drawn on Oriental Bank of Commerce, Amritsar which was duly credited to the account of the opposite parties and receipt was duly issued by the opposite parties to the complainant. As such the complainant hired the services of the opposite parties.
3. After this complainant approached the opposite parties and contacted even opposite party No. 3 time and again and asked for execution of the builder buyer agreement and about the allotment of site of the plot to the complainant, but the opposite parties all the time lingered on the matter with one pretext or the other that work is under progress and the agreement will be executed very soon and possession of the plot will be handed over to the complainant accordingly. But till date nothing has been done at their level even after lapse of four years. The complainant ultimately wrote letter dated 18.5.2017 for doing the needful or to refund back the amount alongwith interest . The intentions of the opposite parties are malafide and they want to grab the amount of complainant and thus they have acted in a most illegal and irresponsible manner and their act and conduct has been unlawful and illegal and opposite parties have thus committed criminal breach of trust and misappropriation and cheating etc. The abovesaid act on the part of the opposite parties amounts to deficiency in service as well as unfair trade practice on the part of the opposite parties for which the complainant has suffered mental pain agony, harassment and inconvenience besides financial and monetary loss. Vide instant complaint, complainant has sought for the following reliefs:- Opposite parties be directed to immediately refund the amount of Rs. 5,16,000/- of the complainant alongwith interest @ 24% p.a. Compensation to the tune of Rs. 1,00,000/- may also be awarded to the complainant; Complainant may also be awarded Rs. 11000/- as litigation expenses and Rs. 33000/- as counsel fee for the present litigation ; Any other relief to which the complainant is found entitle to under law may also be awarded to the complainant. Hence, this complaint.
4. Upon notice, opposite parties No.1 to 3 appeared and filed joint written version in which it was submitted that complainant has concealed the material facts from the notice of this Forum and as per section 2(1)(d) of the Consumer Protection Act, 1986 complainant cannot be defined as consumer. Moreover the complainant filed the complaint on the basis of his own interpretations made to the various provisions of the application agreement for allotment of Industrial plot in Model Industrial Park, Amritsar dated 12.3.2013 which are totally wrong. The complainant failed to act as per mutually agreed terms and conditions of the application for the allotment of Industrial plot to clear the due installments and take over the possession of the allotted plot, therefore the complainant cannot be allowed to take advantage of his own wrongs. The complainant out of her free will through application form bearing No.MIP 014 dated 12.2.2013 alongwith a cheque dated 12.2.2013 bearing No. 713015 drawn on Oriental Bank of Commerce for an amount of Rs. 5,16,000/- towards the booking amount or the earnest money (being 15% of the basic sale price) had applied for the allotment of a plot measuring 516.69 sq.yds in the aforesaid Model Industrial Park Amritsar. The complainant had been allotted plot bearing No. 1051 of the aforesaid measurement in the said Model Industrial Park, Amritsar. The terms and conditions of the application had also been entered into by and in between the complainant and opposite party No.1 on 12.2.2013 wherein all the terms and conditions have been expressly stated including the clause regarding arbitration proceedings and other terms and conditions governing the sale of the abovesaid industrial plot. Some of the material terms and conditions that had been agreed to by and in between the complainant and opposite party No.1 company are given below:-
2. The applicant shall pay the total price of the said plot in accordance with the payment plan opted by the Applicant and in addition, the applicant shall also be liable to pay the other amounts, charges and dues as mentioned in this application and the agreement. The applicant agrees and understands that the total price of the said plot is calculated on the basis of the plot area which is tentative and subject to change at the sole discretion of the company or as may be directed by the competent authority(ies).
8. The applicant shall have no right to cancel/withdraw its application for allotment of the said plot once such application is made, unless otherwise agreed by the company, in which case the company shall forfeit the amounts as stated hereunder and in accordance with the terms and conditions as stated herein: In the event of cancellation/withdrawal, prior to execution of the plot buyer agreement, the company shall forfeit the earnest money. In the event of cancwellation/withdrawal, prior to execution of the plot buyer agreement, the company shall forfeit the booking amount and interest due on delayed payments (if any).
30. The applicant agrees that the company shall be entitled to forfeit the earnest money/booking amount (as the case may be) alongwith the Non refundable amounts and cancel the allotment in case of non fulfillment /breach of the terms and conditions of the application and the agreement, including withdrawl of the application and also in the event of the failure by the applicant to sign and return to the company the agreement within 30 (thirty days) from the date of its dispatch by the company. The applicant shall be left with no lien, right, title, interest or any claim of whatsoever. The amount(s), if any paid over and above the Earnest money/booking amount (as the case may be) and the non refundable amounts would be refunded (without any interest or compensation of whatsoever nature) in the said plot. The company shall thereafter be free to resell and/or deal with the said plot in any manner whatsoever. The amount(s) if any paid over and above the earnest money/booking amount (as the case may be) and the Non refundable amounts would be refunded (without any interest or compensation of whatsoever nature) to the applicant by the company only after realizing such amounts from resale of the said plot or within 60 days, whichever is earlier. The company shall at all times have the first lien and charge on the said plot for all its dues payable by the applicant to the company.
34. The company is not required to send reminders/notices to the applicant in respect of the obligations of the applicant as set out in this application and/or the agreement and the applicant is required to comply with all its obligations on its own.
36. The applicant understands that the final allotment of the said plot is entirely at the discretion of the company.
5. The total sale price of the said plot was Rs. 24,28,443/- (i.e. Rs. 20,66,760/- as BSP, 2,06,676/- as PLC, Rs. 51,669/- as IFMS and Rs. 10,338/ as EDC) and that the complainant was required to make the payment of the same as per terms and conditions embodied in the said plot buyers agreement. Apart from the abovesaid amount, the complainant was also to pay other charges which may be demanded by the State/Central Government or other statutory authority for providing the facilities. The complainant at the time of booking of the said plot had made the payment of a sum of Rs. 5,16,000/- (being 15% of the basic sale price). Thereafter the complainant has not made any payment as per terms and conditions of the agreement. The complainant has been committing inordinate delay in depositing the amount of installments due and as such the complainant also become liable to pay interest in terms of the agreement between the parties. The complainant neither deposited the amount due against the plot in question nor came forward to take demarcation of the plot allotted to the complainant ad constructed a boundary wall on the said plot. Therefore, complaint is liable to be dismissed.
6. In his bid to prove the case Sh.D.V.Joshi,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.CW1/A, authority letter Ex.C-1, copy of acknowledgement Ex.C-2, copy of letter dated 18.5.2017 Ex.C-3, copy of regd.envelope ExC-4, copy of legal notice Ex.C-5, copy of 3 postal receipts Ex.C-6 and closed the evidence on behalf of the complainant.
7. To rebut the aforesaid evidence Sh.Anoop Sharma,Adv.counsel for the opposite parties tendered into evidence affidavit of Sh.Anoop Sharma, authorized representative Ex.OP1/A alongwith documents relating to agreement of allotment Ex.OP1 to Ex.OP33 and closed the evidence on behalf of the opposite parties.
8. We have heard the Ld.counsel for the parties and have carefully gone through the record on the file and also gone through the written synopsis submitted by both the parties.
9. From the appreciation of the facts and circumstances of the case, it becomes evident that there is no dispute with regard to the Earnest money i.e. Rs. 5,16,000/- i.e. 15% of the sale price. The only matter of contention between the parties is with regard to the possession of the plot. In this regard the plea of the opposite party is that the complainant cannot be covered under the definition of consumer as per section 2(1)(d) of the Consumer Protection Act, 1986. After perusing the entire record as well as pleadings of both the parties, the plot was allotted to the complainant under the scheme for development of Model Industrial Park at Vallah which was a commercial activity , as such complainant is not falling under the definition of consumer under section 2(1)(d) of the Consumer Protection Act. Not only this the complainant in her complaint herself has pleaded that opposite party has committed criminal breach of trust and mis-appropriation and cheating etc. which is also not covered under the Consumer Protection Act. Since the matter relates to intricate questions of law and facts . A probe into the matter is required to be made. As such , this Forum cannot exercise its jurisdiction to decide the intricate questions of law and facts in a summary manner. Reliance in this regard is placed upon Oriental Insurance Company Ltd. Vs. Munimahesh Patel 2006(IV) CPJ page 1, wherein the Hon'ble Supreme has held that :- Court
Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.
Their lordships have further held that :-
The nature of the proceedings before the commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of Law and not by the Commission.
The nature of the dispute, in the present complaint, is squarely covered by the law laid down by their lordships of the a. A similar view has beenHon'ble Supreme Court in the judgement supr taken by the Hon'ble National Consumer Disputes Redressal Commission in 1(2004) CPJ page
101 wherein it has been held by the Hon'ble National Commission in a revision petition titled as . in para No.7 of the judgement R.D. Papers Ltd. Vs. New India Assurance Co. Ltd. & Ors which reads as under:-
After going through the complaint and the written version, it appears to us that the complaint raises complicated questions of facts which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lacs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by the Insurance Company.
10. The other point of contention of the opposite parties is that the complaint has not been filed properly and not maintainable in the present form as the same has been signed, verified and filed by allegedly authorized person Mr. Ravinder Arora and not signed, verified nor affidavit in support of pleadings has been filed by the complainant Ms. Savita Arora. However, no duly executed power of attorney has been filed in favour of so called authorized person Mr. Ravinder Arora. Reliance in this connection has been place upon Anita Sharma Vs. M/s. BHEL Revision that Petition No. 3188 of 2010 decided on 1.3.2013 consumer complaint filed by wife and represented by husband is not maintainable as mere authorization letter does not entitled him to be a consumer.
11 The abovesaid law squarely covers the plea of the opposite parties as the complainant has given the authority letter on a simple piece of paper and has not legally authorized said Ravinder Arora to sign, verify and institute the consumer complaint on behalf of the complainant, as such the complainant is liable to be dismissed.
12. However, for the sake of arguments, if we go through the merits of the case as per agreement Ex.OP/17 the complainant is liable to make 15% as Earnest money at the time of booking and later on 75% within 30 days and 10% on possession . But however, complainant has made payment of the Earnest money i.e. Rs. 5,16,000/- on 12.2.2013 and has not bothered to pay the remaining installments and has applied for refund of the earnest money on 18.5.2017 i.e. after a period of 4 years , as such the complaint is barred by limitation. In this regard Ld.counsel for the opposite parties has placed reliance upon Kandimalla Ragavaiah & Co. Vs. National Insurance took view of the observation made in earlier decided Co. Ltd.& Anr. 2009 CLT 951 (SC) (CP) land mark judgement of State Bank of India Vs. B.S . Agriculture Industries 2009 CTJ 481 has held as follows:- (SC) wherein Honble Supreme Court
It would be seen from the aforesaid provision that it is peremptory in nature ad requires consumer Forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer Forum, however, for the reasons to be recorded I writing may condone the delay in filing the complaint if sufficient cause is shown. The expression shall not admit a complaint occurring in section 24 A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder
13. In view of the above discussion, as the complainant herself is not only a defaulter of the remaining amount but the case of the complainant also comes under the commercial activity . Not only this in the said complaint also allegations of cheating has been pleaded, as such this Forum has no jurisdiction to decide the cases of commercial nature as well as cheating and fraud.
14. Consequently, we hold that there is no merit in the present complaint and the same is hereby dismissed with no order as to costs. Complainant is however, is free to avail remedy before the civil court of competent jurisdiction. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Announced in Open Forum [ Ms. Rachna Arora] PRESIDING MEMBER [ Sh. Jatinder Singh Pannu] MEMBER