M/S. SURYA INFRASTRUCTURE & BUILDERS & ANR. vs AMAN KUMAR

Appellants / Opposite Parties have preferred this appeal against impugned order dated 19.11.2014, passed by State Consumer Disputes Redressal Commission, Punjab (for short, "State Commission") vide which complaint filed by Respondent / Complainant was accepted and following directions were passed against the appellants; "To provide interest to the complainant from the agreed date of delivery of possession @ 7% per annum till the actual delivery of possession of the flats to the complainant on the sale price already deposited by him. The opposite parties are further directed to deliver the possession of above referred two flats to the complainant, for which they have received the entire sale consideration".

Brief facts are, that respondent filed a consumer complaint U/s 17 of the Consumer Protection Act, 1986 (short as, "Act") against appellants on the premise that pursuant to their advertisements, he paid entire sale consideration of Rs. 18 lacs each, for two flats to the appellants on 24.11.2007, with the understanding that physical possession of the flats would be delivered to him by 30.03.2009. Agreement to sell was executed on the same day between the parties. However, possession was not delivered to the respondent despite payment of entire sale consideration. Respondent also sent notice to the appellants, but to no effect. Thereafter, respondent filed complaint, praying that appellants be directed to deliver possession of the flats as per allotment letter dated 24-11-2008 or in the alternative to refund amount of Rs. 36 lacs alongwith interest @ 24% p.a. from the date of deposit till payment and to pay Rs. 5 lacs for causing harassment and mental agony. In addition, respondent sought Rs. 5 Lacs for unfair trade practices and Rs. 22,000/- as litigation expenses.

Appellants in their written statement have taken the plea, that they used to take loan on interest from the respondent. As a security, they were giving different documents to the respondent. In month of November, 2008, when appellants were in dire need of money, they approached respondent and took money from him on interest and issued different receipts in his favour. However, two agreements of two flats in their project were executed in favour of respondent only as a security. It is further stated, that appellants returned the payment after some time and cheques given as security were also returned to them by the respondent. When appellants demanded the agreement dated 24.11.2008 from the respondent, he assured to destroy the agreement, in as much as he had received the entire payment from them. However, respondent did not destroy the above said agreement which respondent had obtained from the appellants, as security for loan.

However, appellants have admitted that they have been giving the facility of flats in the above project. They denied that respondent had approached them for purchase of flats or they are selling the flats @ Rs. 15-16 lacs. It was further averred, that there is no agreement to sell between the parties. The respondent is a money lender and they used to take loan on interest from him.

The State Commission, vide impugned order allowed the complaint.

I have heard Ld. Counsel for appellants and gone through the record.

It is submitted by Ld. Counsel, that respondent is not a consumer as defined under section 2(1) (d) of the Act nor there was any consumer dispute between the parties. The respondent has not purchased the flats for any consideration from the appellants. Rather appellants have kept the allotment letters with the respondent as security to get financial assistance of Rs. 43.00 lac from the respondent for which parties have agreed vide agreement dated 24.11.2008.

It is further contended, that respondent has booked two flats, where as he was already having a residential house at Panchkula, where he is residing with his family. The respondent has purchased two flats for resale and for commercial purposes in order to earn huge profit. Therefore, respondent is not a consumer under section 2(1)(d) of the Act.

In support, Ld. Counsel has relied upon a decision of this Commission in Smt. Madhu Saigal and other Vs. Omaxe Buildhome Pvt. Ltd. and others, Consumer Complaint No. 270/2013 decided on 20.03.2014 .

The state commission, while allowing the complaint observed: " 5. The point for adjudication before us is whether the opposite parties executed two agreement of sell of the flats in favour of the complainant after receiving the entire sale consideration amount from the complainant or not. On the other hand, the submission of the opposite parties is that the complainant is a moneylender and they used to take loan on interest from him and they gave the above documents, as security to him, but instead of destroying them, he mis-utilized them dishonestly against the opposite parties. The controversy can be decided on the basis of evidence brought on record by the parties. Annexure C-1 is the advertisement of the project of the opposite parties with the features. Annexure C-2 is the allotment letter dated 24.11.2008 in favour of the complainant. Annexure C-3 is regarding allotment of flat no.602 on 6 floor th in SIB Tower No.7 of Surya Tower to the complainant. It recorded this fact that the sale price of said apartment of Rs.18 lacs has been deposited. Annexure C-3 is the agreement of sale executed between the parties on 24.11.2008. Annexure C-4 is the allotment letter of flat no.507 on 5 floor of SIB Tower No.7 at th Surya Tower, regarding which price of Rs.18 lacs was received from the complainant. Annexure C-6 is the legal notice served upon the opposite parties and Annexure C-7 is the speed post receipt. Annexure C-8 is the regd. AD on the record. Affidavit of the complainant is Annexure C-13 on the record to the effect that he entered into an agreement to purchase two flats from the opposite parties and has paid the sale consideration to them. The opposite parties got registered FIR Ex.C-9 no.124 dated 07.04.2010, which was found to be false after inquiry. Even the quashing petition of above FIR was filed in the Hon''ble High Court, where ASI Kashmir Singh made the statement that they are prepared to cancel the report in the above FIR, as the allegations were found to be false by SP (D), vide Ex.C-10. Another FIR No.226 dated 24.12.2011 was registered against the opposite parties and they filed the petition for quashment thereof. Annexure C-9 is the FIR regarding theft of cheques. Annexure C-10 is the order of the Hon''ble High Court, disposing of the petition as infructuous. Annexure C-11 to Annexure C-15 are the orders passed u/s 27 of the Act by the District Forum, Mansa against the opposite parties. 6. The stand of the opposite parties is that they used to take loan from the complainant and kept the agreement of sale, as security with the complainant, but he turned dishonest afterwards and had not destroyed them. The counsel for the appellant relied upon the photostat copies of the apartment buyers agreement dated 24.11.2008, which is signed by the opposite parties alone. Learned counsel for the complainant submitted all the papers and agreements by signing them

to the purchasers and themselves in routine practices on their behalf. We find that the above documents are signed by the opposite parties and they have not disowned their signatures on them. The opposite parties had received the payment from the complainant and issued the allotment letter Annexure C-2 dated 24.11.2008 with regard to allotment of apartment no.602 on 6 Floor, SIB th Tower No.7 in Surya Tower, Zirakpur. Annexure C-4 is the allotment letter dated 24.11.2008 with regard to apartment no.507 on 5 Floor, SIB Tower No.7 in th Surya Tower, Zirakpur. The entire amount has been deposited by the complainant with the opposite parties towards the sale consideration of the flats, as per the above allotment letters Annexure C-2 to Annexure C-4. The buyer agreement Annexure C-3 is also examined by us on the record. We find that leaving aside all the matters, with which, we are not concerned in this case, it is evident that the complainant has paid the entire amount of Rs.36 lacs to the opposite parties. The complainant states it to be sale consideration, whereas the opposite parties state it to be security amount. There is no document to substantiate it, as security amount, on the record in this case. There is mere assertion of the opposite parties, contending it to be security amount, which remained unsubstantiated on the record. The receipts have been admitted to be issued by the opposite parties to the complainant with regard to the receipt of the above money. Learned counsel for the opposite parties submitted that the complainant is not a consumer, because he has purchased the above two flats for commercial purpose. Sometimes, the person has to accommodate his family in two flats and we cannot presume on this basis that they were purchased by the complainant for commercial activities in the absence of any substance on the record. Without any solid evidence on the record to establish it, we cannot hold it so ex-hypothesi, as argued by the counsel for the opposite parties. The complainant is not a company. Even the Apex Court has held in "M/s Narne Construction P. Ltd. Etc. Vs. Union of India & Ors.", 2012 (3) RCR (Civil)-127 that the activities of the appellant company, inviting offer of plots for sale to its customers with assurance of development of infrastructure, amenities, layout approvals etc. was a service with the meaning of clause (2) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the Fora established under the statue. The housing construction company or building activities are covered under the Act as service. It has been further held in this authority that when a person applied for allotment of plot site or flat constructed by development authority and enters into an agreement with the developer or contractor, it is covered by the expression service. The housing construction or building activity carried out by a private or statutory body was held to be service within the meaning of clause 2 (1) (O) of the Act, as it stood prior to the inclusion of the expression ''housing construction'' in the definition of service by ordinance no.24 of 1993. The Apex Court further held that the provision of the CP Act must be liberally interpreted in favour of the consumers, as it is a beneficial piece of legislation for the consumers. The word ''consumer'' is a comprehensive expression, extending from a person, who buys any commodities to consume either as eatable or otherwise from a shop, business house, corporation to use of private or public services. The Apex Court further held in Haryana Urban Development Authority Vs. Darsh Kumar", 2005 (9) SCC449 that allotment of plots and flats by housing agencies, delay in delivery of possession, the consumers are entitled to interest from the date of deposit till the date of possession for the loss of use of

accommodation of allotted premises. Considering the facts and circumstances of the case, we have come to the conclusion that there is deficiency in service on the part of the opposite parties in this case and the same is proved on the record in our view."

It is an admitted fact that appellants have allotted Apartments No. 502 and 602, vide separate allotment letters dated 24.11.2008 to the respondent. However, defence of appellants is that they used to take loan on interest from the respondent and as a security, they were giving different documents in favour of respondent. Further, in the month of November, 2008 since appellants were in need of money, they approached the respondent and took money on interest and issued different receipts in favour of the respondent. At the same time, two agreements for two flats in their projects were executed by them in favour of respondent as a security.

The allotment letters dated 24.11.2008, nowhere states that these documents have been executed in pursuance of the loan taken by the appellants from the respondent.

It is well settled, that when a document has been executed in writing, no amount of oral evidence can be led against it. This plea of appellants, that they have taken loan from the respondent, has nowhere been stated in the allotment letters dated 24.11.2008. Therefore, this sham defence taken by the appellants is contrary to their own documents, that is, allotment letters dated 24.11.2008.

Appellants in the present case, after taking huge amount of Rs. 36 lacs from the respondent, are sitting over that money. There is also nothing on record to show, that appellants have handed over physical possession of the flats, which was to be delivered latest by 31.01.2009. Thus, deficiency on the part of appellants is writ large in this case.

Now coming to this plea of the appellants that respondent is not a consumer since he has booked two flats, the defence of appellants is that, intention of respondent in booking two flats, is to sell the same for profit. However, no evidence on this point has been led by the appellants. Hence, decision of Smt. Madhu Sehgal (Supra), is not applicable to the facts of the present case.

Appellants in present case " wants to have the cake and eat it too", as admittedly after having received the entire cost of apartments in question, they are sitting over the hard earned money of the respondent. In addition, both apartments are also with them. On the other hand, respondent after having paid entire consideration amount of the apartments is still empty handed.

Such type of unscrupulous act on the part of the appellants, should be dealt with heavy hand who after grabbing the hard earned money from the consumers, goes on enjoy and utilize that money but do not hand over possession of the apartments, on one pretext or the other. Appellants want the respondent to run from one fora to other, so that they can go on enjoying respondent''s hard earned money, without any hindrance.

It is well settled, that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on pursuing the litigation having no merit and legal force at all. Equity demand that such unscrupulous litigants whose only aim and object is to deprive the consumer the fruits of

the decree, must be dealt with heavy hands. Unscrupulous builder like appellants who after taking entire consideration amount, do not perform their part of obligation should not be spared. A strong message is required to be sent to such type of builder, that this Commission is not helpless in such type of matters.

Now question arise for consideration is as to what should be the quantum of punitive damages which should be imposed upon the appellants for pursuing this litigation, when they had no case at all. It is not that every order passed by the judicial fora, is to be challenged by the litigants even if the same is based on sound reasonings.

In Ravinder Kaur Vs. Ashok Kumar, AIR 2004 SC 904 the Apex Court observed; " Courts of law should be careful enough to see through such diabolical plans of the judgment debtor to deny the decree holders the fruits of the decree obtained by them. These type of errors on the part of the judicial forum only encourage frivolous and cantankerous litigations causing law''s delay and bringing bad name to the judicial system ."

Further, Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors. (Civil Appeal Nos.4912-4913 of 2011 decided on July 4, 2011) observed ; "45. We are clearly of the view that unless we ensure that wrong ?doers are denied profit or undue benefit from the frivolous litigation, it would be difficult to control frivolous and uncalled for litigations. In order to curb uncalled for and frivolous litigation, the Courts have to ensure that there is no incentive or motive for uncalled for litigation. It is a matter of common experience that court''s otherwise scarce and valuable time is consumed or more appropriately wasted in a large number of uncalled for cases". The court further held;

"50. Learned Amicus articulated common man''s general impression about litigation in following words; Make any false averment, conceal any fact, raise any plea, produce any false document, deny any genuine document, it will successfully stall the litigation, and in any case, delay the matter endlessly. The other party will be coerced into a settlement which will be profitable for me and the probability of the court ordering prosecution for perjury is less than that of meeting with an accident while crossing the road ." Lastly, Apex Court observed;

"54 . While imposing the costs we have to take into consideration pragmatic realities and be realistic what the defendants or the respondents had to actually

incur in contesting the litigation before different courts. We have to also broadly take into consideration the prevalent fee structure of the lawyers and other miscellaneous expenses which have to be incurred towards drafting and filing of the counter affidavit, miscellaneous charges towards typing, photocopying, court fee etc. 55 . The other factor which should not be forgotten while imposing costs is for how long the defendants or respondents were compelled to contest and defend the litigation in various courts. The appellant in the instant case have harassed the respondents to the hilt for four decades in a totally frivolous and dishonest litigation in various courts the appellants have also wasted judicial time of the various courts for the last 40 years.56 . On consideration of totality of the facts and circumstances of this case, we do not find any infirmity in the well-reasoned impugned order/ judgment. These appeals are consequently dismissed with costs, which we quantify as Rs.2,00,000/-. We are imposing the costs not out of anguish but by following the fundamental principle that wrongdoers should not get benefit out of frivolous litigation".

Thus, present appeal is nothing but gross abuse of the process of law and same is required to be dismissed with punitive damages. Accordingly, present appeal stand dismissed with punitive damages of Rs. 50,000/-(Rupees Fifty Thousand only).

Appellants are directed to deposit the amount of punitive damages by way of demand draft in the name of ''Consumer Legal Aid Account'' of this Commission, within four weeks from today.

In case, appellants fail to deposit the aforesaid amount within the prescribed period, then they shall also be liable to pay interest @ 9% p.a. till realization.

Pending applications stand disposed of.

List for compliance on 30 October, 2015.