FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH. First Appeal No.154 of 2019 Date of Institution : 20.03.2019 Date of Reserve : 27.11.2020 Date of Decision : 08.12.2020
1. Ashok Kumar S/o Sh.Roop Lal, R/o H.No.214, Pine Homes, Dhakoli, Zirakpur, Mohali, Panjab.
2. Ramla Jindal W/o Sh.Ashok Kumar R/o H.No.214, Pine Homes, Dhakoli, Zirakpur, Mohali, Panjab. ....Appellants/Complainants Versus
1. Punjab Empires Pvt. Ltd., Registered Office, 2022, Sector 64, Mohali, Punjab through its Directors Sh.Darshan Singh.
2. Sh.Randhir Sood, Director, Punjab Empires Pvt. Ltd., R/o Kothi No.1309, Sector 15-B, Chandigarh (Office Address)
3. Sh.Randhir Sood, Director, Punjab Empires Pvt. Ltd., R/o Kothi No.1, Near Atta Chakki, Near Tobha, Village Kansal, Distt. Mohali (Alternate/residence address).
4. Sh.Darshan Singh, Director, Punjab Empires Pvt. Ltd., Registered Office, 2022, Sector-64, Mohali, Punjab.
5. Sh.Satinder Kumar Singh S/o Sh.B.N.Singh, C/o Booth No.2, Sector 47-C, Chandigarh authorized signatory of Punjab Empires Pvt. Ltd. First Appeal No 154 of 2019 2
6. Sh.Vinod Kumar, Accountant of Punjab Empires Pvt. Ltd., C/o H.No.1309, Sector 15-B, Chandigarh.
7. Smt. Sangeeta Sood W/o Sh.Randhir Sood R/o H.No.889 (First Kothi), near Atta Chakki/Tobba Village Kansal, District Mohali. .Respondents/Opposite parties First Appeal against the order dated 05.02.2019 of the District Consumer Disputes Redressal Forum, (now Commission), SAS Nagar, Mohali. Quorum:- Mr.Rajinder Kumar Goyal, Presiding Member Mrs.Kiran Sibal, Member Present: For the appellant : Sh.Ramesh Kumar, Advocate For respondent No.2 : None For respondent No.1,3to7: Ex-parte RAJINDER KUMAR GOYAL, PRESIDING MEMBER This appeal has been preferred against the order dated 05.02.2019 passed by District Consumer Disputes Redressal Forum, SAS Nagar (now in short District Commission), whereby the complaint filed by the complainants, under the Consumer Protection Act, 1986 (in short the Act), was dismissed. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission. First Appeal No 154 of 2019 3 Facts of the Complaint
2. Brief facts, as averred in the complaint, are that the opposite parties took a sum of Rs.12,22,000/- from the complainants upto the date of 01.07.2013 against the projected sale of alleged plot No.62, measuring 138.88 sq. Yards in Gulmohar Valley, Lalru promoted by them. The said project was neither approved nor had the requisite permissions but the opposite parties in connivance with certain revenue officials got the registry of the alleged plot executed on 01.07.2013 at the office of the Sub Registrar, Dera Bassi. It was further averred that no such plot number 62 was ever existed in the alleged Gulmohar Valley, Lalru. The complainants upon being confronted, the opposite parties agreed to immediately refund the total amount of Rs.12,22,000/- along with interest at the rate of 18% plus reimbursement of all the expenses borne by the complainants. On 11.05.2015, the opposite parties prevailed upon the complainants to sign an agreement in the form of an agreement to sell for the sale of the above said plot by the complainants back to the company, in which the sale consideration was shown as Rs.12,22,000/-. The opposite parties also assured the complainants that the other payments relating to registry expenses and due interest will be paid in due course of time as they were allegedly not possessed with enough finances at that stage. However, the opposite parties did not abide by the terms and conditions of the agreement dated 11.05.2015 where they were to refund/pay the full principal amount of Rs.12,22,000/-. Thereafter, First Appeal No 154 of 2019 4 the opposite parties gave a cheque bearing No.984109 dated 14.05.2015 of Rs.1,00,000/-. Thereafter, no further payment was made to the complainants till 28.03.2016. Another cheque of Rs.1,00,000/- was given to the complainants and promised to give the balance payments of Rs.10,22,000/- within three months i.e. upto 29.06.2016. The opposite parties completed the refund payment only on 17.04.2017 which is evident from the Sale Deed dated 17.04.2017. In the sale deed total sale consideration has been mentioned as Rs.2,22,500/- instead of actual sale consideration of Rs.12,22,000/-. The complainants issued various letters to the opposite parties, but the opposite parties have not replied and ignored the same. Thereafter, a legal notice dated 06.10.2017 was served upon the opposite parties and expressed his willingness to receive another sum of Rs.11,00,000/- as the balance amount towards settlement of all the issues, including interest due on amounts paid, repeated delay in refund etc. However, all the notices have been received back with remarks refused or unclaimed. Alleging deficiency in service on the part of opposite parties the complainants approached the District Commission and sought the following reliefs:-
i) To pay Rs.11,00,000/- as the balance amount towards settlement of all issues, including interest due on amounts paid to the respondents, repeated delay in refund, re-imbursement of registry and other expenses, compensation towards unfair trade practices of floating an illegal colony, selling plots illegally, causing the First Appeal No 154 of 2019 5 complainants to enter into wrongful transactions, causing financial losses, physical and mental harassment; and ii) to pay Rs.55,000/- as legal costs Defence of the Opposite Parties
3. Upon notice, opposite parties No.1,2 and 4 to 7 were not appeared and proceeded against ex-parte vide order by the District Commission, whereas opposite party No.3 was given up in view of the statement of the complainant. Evidence of the Parties
4. In support of his evidence, the complainant tendered in his affidavit as Ex.CW-1/1 along with documents as Ex.C-1 to Ex.C-20. Finding of the District Commission
5. The District Commission after going through the same and hearing learned counsel for the parties dismissed the complaint. Hence, this appeal by the appellants / complainants.
6. Notice of the appeal was issued to the respondents/opposite parties. The respondents No.1,3 to 7 not appeared and have been proceeded against ex-parte vide orders dated 26.08.2019 and 13.11.2019, whereas respondent No.2 appeared through his counsel.
7. We have heard the counsel for the appellants and have carefully gone through the record as well as written arguments filed by the appellants as none has appeared on behalf of respondent No.2 at the time of final arguments. First Appeal No 154 of 2019 6 Contentions of the Appellants/Complainants
8. Learned counsel for the appellants argued that the District Commission has passed the order without going into the facts and evidence brought on the record. The District Commission has also failed to consider the fact also that the respondents beside deficient in service, have also committed fraud with the appellants as they had sold and got executed the sale deed of such a plot which never exists. The District Commission has failed to consider this fact that although the sale consideration amount of this plot No.62 is mentioned as Rs.4,17,750/- in the sale deed whereas the actual sale price in the sale deed has not been reflected i.e. Rs.12,22,000/- which was actually paid by the appellants/complainants. The only issue involved in this case is whether the respondents/opposite parties are duty bound to pay the registration charges which the appellants had spent on execution of sale deed in their favour or not? It is not disputed that the appellants paid a sum of Rs.12,22,000/- upto 01.07.2013 for purchase of plot but the said plot was not in existence and the respondents/opposite parties in order to save their skin, agreed to re-purchase the said plot. Accordingly, the appellants got executed a sale deed in favour of the respondents/opposite parties as requested by the respondents/opposite parties. The amount deposited by the complainants was used by the opposite parties for their personal use. The respondents/opposite parties were also not having the requisite permissions/approvals of the competent authority. Finally, it is prayed to allow the appeal by setting aside First Appeal No 154 of 2019 7 the order passed by the District Commission and grant all the reliefs as prayed for before the District Commission. Consideration of the Contentions
9. We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellant as none has appeared on behalf of respondent No.2.
10. Brief facts as per the complaint are that the complainants alleged to have paid Rs.12,22,000/- to the opposite parties for purchase of a plot bearing No.62, measuring 138.88 sq. yards in Gulmohar Valley, Lalru. Further alleged that after Registration of sale deed vide Ex.C-1 dated 07.02.2013, they came to know that no such plot bearing No.62 ever existed in the Gulmohar Valley, Lalru. Further, it was alleged that upon confronted, the opposite parties agreed to refund the money along with interest and an agreement to sell for the plot, in question, was executed between the parties vide Ex.C-4.
11. Now as per documents available on record, the complainant has failed to produce any payment receipt pertaining to alleged payment of Rs.12,22,000/- for purchase of the plot bearing No.62 in Gulmohar Valley. Even no such agreement has been placed in evidence. Further, the sale deed Ex.C-1 dated 07.02.2013 executed pertaining to the sale of the plot, in question, is for Rs.4,17,750/- only and not of Rs.12,22,000/- as pleaded in the complaint. It has been mentioned in the sale deed that physical possession at site has been delivered. Then, how does the question of non-existence of plot No.62 arise? First Appeal No 154 of 2019 8
12. Further, as per Agreement to Sell, Ex C-4, both the parties have executed sale deed, vide Ex.C-9, dated 17.04.2017 for the plot, in question, for an amount of Rs.2,22,500/- and the complainant received the said amount before the Sub-Registrar, Derabassi. Mere pleadings given in the complaint cannot be considered as evidence if any cogent and convincing evidence is not placed. The complainant has failed to produce any evidence on the record to evident that the payment of Rs.12,22,000/- was paid to the opposite parties. Moreover, the sale deeds executed by both the parties are not of that much amount. Even no agreement was executed by the parties before the execution of the sale deed dated 07.02.2013.
13. We find that there are complex questions of facts and law are involved in this complaint and these issues cannot be decided in summary procedure and cannot be decided by the Consumer Fora. These kinds of matters require elaborate evidence, enjoining upon the cross-examination and re-examination of the witnesses and even statements of document expert witness to settle the controversy in this case. The Consumer Fora generally decide the cases on the basis of the documents alone, which are not of seriously disputed in nature. The Apex Court has held in Oriental Insurance Company Ltd versus Munimahesh Patel reported in 2006(4) CivCC 203 Page 1 that proceedings before Commission are essentially summary in nature and issue which involve dispute factual questions should not be adjudicated by the Commission. We find that complex factual matrix requires in this case that First Appeal No 154 of 2019 9 matter should be examined by an appropriate court of law in regular proceedings and not in summary manner by this Commission. Since in the present case, a handsome amount is involved and the complainants are unable to prove on record any cogent and convincing evidence that the said amount was paid for purchase of plot for residential purposes and the said plot was again resold by the complainant. Moreover, the amount mentioned in the sale deed is much less than of the amount as the complainants alleged in their complaint. Therefore, it is deemed appropriate to lay our hands off the adjudication in this case.
14. The Larger bench of National Commission has held in Reliance Industries Ltd. Versus United India Insurance Co. Ltd., reported in 1998(1) CPJ 13 that question of ownership of goods, conspiracy and fraud were raised, which required elaborate inquiry for disposal. The matter can be properly decided by civil court and not under Consumer Protection Act. Honble National Commission has also held in M/s Singhal Swaroop Ispat Ltd versus United Commercial Bank reported in 1992(3) CPJ
50 that where the allegations of fraud, forgery have been raised by the parties against one another requiring elaborate oral or documentary evidence, the matter be relegated to civil court for adjudication.
15. The District Commission has rightly observed that the complainants want to prove recitals regarding sale consideration amount mentioned in Ex.C-9 as fraud or result of intimidation etc. then remedy available with them is to approach civil court. It was First Appeal No 154 of 2019 10 further observed that as the complainants seeking refund through this complaint by alleging commission of fraud on the part of the OPs and as such they are required to lead elaborate evidence to prove this allegation of fraud or of misrepresentation or like that.
16. Sequel to the above discussions, the appeal filed by the appellants/complainants is hereby dismissed being devoid of merits and the order passed by the District Commission is upheld.
17. Arguments in this appeal were heard on 27.11.2020 and the order was reserved. The certified copies of the orders be communicated to the parties, as per rules.
18. This appeal could not be decided within the statutory period due to heavy pendency of court cases. (RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER December 08,2020 parmod