A. Goyal vs Jaidev Aggarwal & Anr

The present Revision Petition, under Section 21(b) of Consumer Protection Act, 1986 (for short "the Act") has been filed against the order dated 13.05.2016 of the State Consumer Disputes Redressal Commission, Punjab (for short "the State Commission") in Appeal No.595 of 2012 whereby the said Appeal against the order dated 08.03.2011 of the District Consumer Disputes Redressal Forum, SAS Nagar, Mohali, (for short "the District Forum") in Complaint No.28 of 2011 was dismissed.

The brief history of the matter is that the Respondent No.1 (hereinafter called as "the Complainant") had filed a Complaint against the Petitioner and Respondent No.2. Vide order dated 08.03.2011, his Complaint was allowed ex parte against the Petitioner and the Respondent No.2 since both the Petitioner and the Respondent No.2 did not attend the proceedings before the District Forum despite service of process. Before the District Forum, the evidences were led only by the Complainant and no evidence or defence was put up by the Petitioner or the Respondent No.2. The Petitioner filed an Appeal before the State Commission. The Appeal was delayed. The application for condonation of delay in the said Appeal was dismissed and the Appeal was also dismissed in limine. The Petitioner challenged the order of dismissal of his Appeal in limine before this Commission vide Revision Petition No.4878 of 2012 titled as A. Goyal Vs. Jaidev Aggarwal and this Commission allowed the Revision Petition, condoned the delay in filing the Appeal and directed the State Commission to decide the Appeal on merits.

Thereafter, after hearing the parties, i.e., the Petitioner and the Complainant, the impugned order has been passed by the State Commission. It is pertinent to note that Respondent no.2 did not contest the Appeal and did not attend the proceedings before the State Commission.

The brief facts as set out by the Complainant in the Complaint are that in the beginning of year 2006, he met the Petitioner in the shop of their mutual friend. Petitioner introduced himself as a reputed realtor and allured him to book a land in a venture which he was going to start jointly with D.D. Buildwell (Respondent No.2) and was at initial stage and also represented to him that apart from the money being invested by them in that venture, they were also raising funds from the public as well and that the actual work of the project was going to start within three months. The Complainant was also given the impression that the plot shall be allotted to him on special price of 8400/- per sq. yd. and that if he deposited a sum of 4,20,000/- being 25% of the total consideration amount of the flat of 200 sq. yd., he would be given a corner plot as an additional benefit. The Complainant has also stated in his Complaint that on this representation given by the Petitioner, he agreed to book a plot and handed over a cheque no.585263 dated 28.01.2006 drawn on Punjab National Bank in favour of D.D. Buildwell to the Petitioner. On 23.02.2006, he received a receipt from D.D. Buildwell. When the construction was not raised by the Petitioner and D.D. Buildwell till May 2008, the Complainant, as contended in the Complaint, approached the Petitioner and asked him for the refund of his money along with interest. He was told by the Petitioner that D.D. Buildwell would release the money deposited along with interest only after the issuance of No Objection Certificate by him and accordingly, he issued a No Objection Certificate dated 07.05.2008 for the refund of the deposited amount along with interest in favour of Complainant. The Complainant then approached M/s D.D. Buildwell for refund of the money and this money was not released. Hence, he filed the Complaint.

The Complainant filed all the relevant documents and also led his evidence by way of affidavit. While deciding the Appeal, the State Commission has perused all the documents which were part of the trial court record and also had gone through the evidences and thereafter concluded that there was a privity of contract between the Complainant and the Petitioner and the D.D. Buildwell and held that the Petitioner is jointly liable for refund of the money.

This order is impugned before us. The only ground taken is that there is no privity of contract between the Complainant and the Petitioner. It is argued that the cheque was given by the Petitioner in the name of D.D. Buildwell and the receipt was issued by D.D. Buildwell. It is argued that the D.D. Buildwell did not release the money despite issuance of No Objection Certificate by him. It is argued that at the most it can be said that Petitioner had acted as property dealer of D.D. Buildwell. It is submitted that the Petitioner was nowhere in the picture in the transaction between the Complainant and D.D. Buildwell and therefore he cannot be held jointly liable.

Learned Counsel for the Complainant has submitted that the Petitioner had represented to the Complainant that the venture was a joint venture between him and the D.D. Buildwell and when he handed over the cheque to the Petitioner it was issued in the name of D.D. Buildwell at his instance. It is submitted that the Petitioner had also made it clear to the Complainant that this money would not be refunded unless he issued a No Objection Certificate and thereafter, he issued a No Objection Certificate on the basis of which the Complainant applied for refund of the money to D.D. Buildwell and this further shows that the project whereby the plot was promised to be allotted to him was a joint venture of Petitioner and D.D. Buildwell. That the Petitioner at no stage had acted as a property dealer. It is submitted that Petition has no merit and the same be dismissed.

We have perused the file and the documents placed on record by the Petitioner along with the present Revision Petition. During the course of arguments, it has come to our notice that the document Annexure C-2 which is the No Objection Certificate issued by the Petitioner has not been filed by the Petitioner along with this Revision Petition. Also, copy of the affidavit of evidence filed by the Complainant has not been placed on record by the Petitioner along with this Revision Petition. Learned counsel for the Complainant has provided these documents to us. We have taken the same on record since these are material documents which although should have been filed by the Petitioner but have not been filed. We have perused the documents which have been filed by the Petitioner along with this Revision Petition and the documents supplied by the Complainant to us today. The Complainant's case was that the Petitioner had represented to him that he was in joint venture with D.D. Buildwell which started a project whereby they were allotting plots and that he could also invest money in that venture and that they were also asking the public to give money to them and thereby asked the Complainant to invest and buy a plot and also promised him that if he pays the money of 4,20,000/-, he will be given special price for that plot and also will be given a corner plot as a concession. This piece of contention of the Complainant stands proved by his uncontradicted testimony. This uncontradicted testimony successfully proves that the Petitioner had entered into a joint venture with D.D. Buildwell. The Complainant also produced the document issued by the Petitioner to the Complainant which is in the form of No Objection Certificate whereby he stated that "we have no objection if Company refunds/released his payment" . Had the Petitioner been not in joint venture with D.D. Buildwell there was no occasion for him to give this No objection certificate regarding release of the money to the Complainant.

All these facts clearly show that there was privity of contract between the Complainant and D.D. Buildwell and the Petitioner. We found no infirmity or illegality in the impugned order. Present Revision Petition has no merit. The same is dismissed with no order as to costs.