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Judgment
The instant Appeal has been filed under Section 19 of The Consumer Protection Act, 1986, hereinafter referred to as the 'Act', challenging the Order dated 04.12.2012 passed in Consumer Complaint No. 53 of 2009 by the State Consumer Disputes Redressal Commission, Punjab, hereinafter referred to as the 'State Commission'.
The Appellants, M/s Taneja Developers and Infrastructure Ltd., were the Opposite Parties before the State Commission, and are hereinafter being referred to as the 'Builder Co.'.
The Respondent, Mr. Gora Lal Jhanji, was the Complainant before the State Commission, and is hereinafter being referred to as the 'Complainant'.
Brief facts of the case, shorn of unnecessary rhetoric, are that on 09.12.2005 the Complainant had registered with the Builder Co. for a residential plot admeasuring 500 sq. yrds. and concomitantly deposited Rs. 9,00,000/- with it.
As per the "ADVANCE REGISTRATION FORM TDI PROJECTS" dated 09.12.2005, an "offer of allotment" for a residential plot admeasuring 500 sq. yrds. was to be made to the Complainant by the Builder Co. within "6 months" of the "registration deposit", and, in case the Builder Co. was "not in a position" to allot a residential plot within 6 months, the Complainant had the "right to withdraw" and ask for "refund" of the amount deposited by him with the Builder Co. "with interest @ 15% p.a. from the date of payment of registration deposit".
No allotment was made by the Builder Co. within 6 months, or even thereafter.
The registration of the plot was cancelled by the Builder Co. on 19.05.2008.
The Complainant "presented" a complaint before the District Consumer Disputes Redressal Forum, Mohali, hereinafter referred to as the 'District Forum', on 26.08.2008. The said Complaint was "returned" on 09.03.2009 to the Complainant by the District Forum with the remark that "The value of the plot, the allotment whereof has been sought is Rs. 45.00 lacs which is beyond the pecuniary jurisdiction of the District Consumer Forum, SAS Nagar."
Thereafter the Complainant filed Consumer Complaint No. 53 of 2009 before the State Commission on 01.07.2009.
We heard arguments from the learned Counsel for both sides, and perused the entire material on record, including inter alia specifically the impugned Order dated 04.12.2012 of the State Commission and the Memorandum of Appeal.
In the interest of justice, and for adjudication of the Appeal on merit, on facts and law, the self-admitted delay of 15 days in filing the Appeal is condoned.
The State Commission vide its impugned Order dated 04.12.2012 had allowed the Complaint.
We note that the State Commission has passed a well-appraised and well-reasoned Order.
The Award made by the State Commission is reproduced below:
In view of the above discussion, we are of the opinion that the complaint is liable to succeed and the same is, accordingly accepted with costs. The OPs are directed to allot a plot of 500 square yards to the complainant after receiving the balance amount from him. They shall also pay him Rs. 1 lac as compensation for causing him harassment and adopting unfair trade practice. Litigation costs are assessed at Rs. 25,000/-.
In effect the State Commission has directed the Builder Co. to allot a plot admeasuring 500 sq. yrds. to the Complainant after receiving the balance consideration amount from him, along with compensation of Rs.1 lakh and cost of litigation of Rs.25,000/-
The material chronology is as below:
i.
Date of registration by the Complainant with the Builder Co. for a residential plot:
09.12.2005
ii.
Date of making first deposit ("registration deposit") and amount of the deposit:
09.12.2005
Rs. 9,00,000/-
iii.
Expiry of 6 months from the date of registration:
08.06.2006
(No allotment of a plot was made by the Builder Co.)
iv.
Date of issuance of Change of Land Use (CLU) by the Competent Authority to the Builder Co. in respect of the project:
22.12.2006
v.
Date of cancellation of registration by the Builder Co.:
19.05.2008
vi.
Date of presentation of Complaint before the District Forum:
26.08.2008
vii.
Date of return of Complaint by the District Forum:
09.03.2009
viii.
Date of filing of Complaint before the State Commission (C.C. No. 53 of 2009):
01.07.2009
ix.
Date of the State Commission's impugned Order:
04.12.2012
x.
Date of filing of Appeal by the Builder Co. before this Commission (F.A. No. 142 of 2013):
19.02.2013
xi.
Date of arguments before this Commission:
23.09.2019
It is a matter of record:
[a] Registration for a residential plot admeasuring 500 sq. yrds. was made on 09.12.2005.
[b] An amount ("registration deposit") of Rs. 9,00,000/- was deposited by the Complainant with the Builder Co. on 09.12.2005, concomitant with the registration.
[c] No "offer of allotment" was made by the Builder Co. to the Complainant within 6 months of the registration.
[d] No offer of allotment was made by the Builder Co. to the Complainant even thereafter.
[e] The allotment was cancelled by the Builder Co. on 19.05.2008.
[f] The Complainant deposited a total amount of Rs. 9,00,000/- with the Builder Co. in 2005, which was about 20% of the total consideration amount of Rs. 46,25,000/-.
[g] There is nothing on record to show that the Complainant was not ready and willing to deposit the balance consideration amount with interest if any on a residential plot being duly offered to him within 6 months as assured in the "ADVANCE REGISTRATION FORM TDI PROJECTS" dated 09.12.2005, or even within a reasonable period thence (reasonable period here would connote such period as a reasonable man would not normally agitate).
[h] No refund of the amount deposited (in 2005), with or without deduction, with or without interest, was made simultaneous to the cancellation (in 2008) by the Builder Co., or even within a reasonable period thence (reasonable period here would again connote such period as a reasonable man would not normally agitate).
No refund was made even till the date of arguments before this Commission (in 2019).
[i] The Change of Land Use (CLU) was issued by the Competent Authority to the Builder Co. on 22.12.2006, well after expiry of 6 months of the registration (i.e. well after 08.06.2006).
[j] There is nothing on record that the Builder Co.'s project had all necessary approvals from the competent government / development / municipal authorities at the time of registration i.e. on 09.12.2005, or even within 6 months thence i.e. by 08.06.2006, or even within a reasonable period thereafter.
In a nutshell, the Builder Co. invited applications for "registration" and collected "registration deposits", including from the Complainant, without any project being duly approved by the competent government / development / municipal authorities, it did not get any project duly approved within the assured period of 6 months within which an offer of allotment of a plot had to be made, it did not get any project duly approved even within a reasonable period thence.
The Builder Co. did not make any offer of allotment of a plot to the Complainant within the assured period of 6 months of the registration and concomitant receipt of the registration deposit of Rs.9,00,000/-, or within a reasonable period thence.
Here it may be specifically noted that 'offer of allotment' for 'a plot', as would be understood, by any reasonable lexicon, would be 'a specific identifiable plot' in 'a particular layout plan'; it cannot be 'a plot', 'anywhere', it has to be 'a specific identifiable plot', in 'a particular layout plan'.
The Builder Co. cancelled the allotment in 2008, and, in effect, confiscated the registration deposit of Rs.9,00,000/- made way back in 2005.
The "ADVANCE REGISTRATION FORM TDI PROJECTS", itself, is nebulously articulated. That being as it is, the proposition understood by a reasonably man would be that a specific identifiable plot in a particular layout plan would be offered within 6 months of the registration and concomitant deposit of Rs. 9,00,000/-, and, in all contingencies, within a reasonable period thence.
Prior to, or, at the least, simultaneous to, getting a consumer to enter into its "registration" and accepting his "registration deposit" towards the total consideration amount of the assured plot, the Builder Co. was required and expected to have the due pragmatic and realistic assessment and preparation of the Project Planning, Execution and Completion, as also to share the details thereof with the Consumer, as were relevant and material to the Consumer.
We note ingredients of both, 'deficiency in service' within the meaning of section 2(1)(g) & (o), and 'unfair trade practice' within the meaning of section 2(1)(r) of the Act, to be well and truly evident on the part of the Builder Co.
In respect of 'unfair trade practice', we may note here that it is a specific provision unique to The Consumer Protection Act, 1986.
Section 2(1)(r) says of "a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-".
The list provided in Section 2(1)(r) is illustrative and not comprehensive.
That is to say, an unfair method or unfair or deceptive practice, as is judiciously determined, on facts and reasons, on fair and objective appraisal of the evidence and material on record, would qualify as 'unfair trade practice' within the meaning of Section 2(1)(r).
In the instant case,
[a] inviting "registration" and obtaining concomitant "registration deposit(s)" and assuring allotment of a plot within 6 months without having all (repeat all) approvals in place,
[b] not having all approvals in place within 6 months thence i.e. within the assured period of making offer of allotment of a plot,
[c] not having all approvals in place even within a reasonable period thereafter,
[d] not making the assured offer of allotment of a specific identifiable plot in a particular layout plan within the assured period of 6 months,
[e] not making the assured offer of allotment even within a reasonable period thence,
[f] arbitrarily and highhandedly cancelling the allotment after an unreasonably protracted period, and
[g] arbitrarily and highhandedly confiscating the registration deposit after retaining it for an unreasonably protracted period, are decidedly unfair and deceptive within the meaning of Section 2(1)(r).
We may add that the Act is for "better protection of the interests of consumers", in recognizedly a fight amongst unequals.
Its Statement of Objects and Reasons speaks of "speedy and simple redressal to consumer disputes".
The Complainant made his deposit of Rs. 9,00,000/- with the Builder Co. in 2005. His registration was cancelled in 2008 and his deposit of Rs. 9,00,000/- was confiscated. The litigation before the Consumer Protection Fora has taken about 11 years.
This is a plain and simple case of a Builder Co., with wherewithal, on the one side, and an ordinary common consumer, without wherewithal, on the other side, with the Builder Co. first indulging in deficiency in service and unfair trade practice, causing loss and injury to the Complainant, and then indulging in protracted litigation, spread over about 11 years, in one, and then, two, Consumer Protection Fora. We also find that, before the second Forum, i.e. this Commission, also, its case fails.
All this is not viewed favourably.
We find the Award made by the State Commission, as quoted in para 6 above, to be just and equitable.
We have no hesitation in dismissing the Appeal and confirming the impugned Order dated 04.12.2012 of the State Commission.
In addition, we deem it just and appropriate that Rs. 50,000/- shall be paid by the Builder Co. to the Complainant towards cost of litigation in the appellate proceedings before this Commission (which took about 6 years).
Further, for 'unfair trade practice' per se, the Builder Co. through its Chief Executive is put to stern advice of caution with imposition of cost of Rs. 1,00,000/- to be deposited in the Consumer Legal Aid Account of the State Commission.
The Builder Co. shall ensure compliance within four weeks of the pronouncement of this Order (paras 14, 15 and 16 above).
The State Commission shall undertake execution as per the law for failure or omission in compliance within the stipulated time-period.
Towards this end, the Registry is directed to send a copy of this Order to the State Commission within seven days of its pronouncement.
We may add that the liability qua the Consumer-Complainant initiated the day the he made his first deposit with the Builder Co., and it continues.
The duties / responsibilities of Director are laid-down in The Companies Act, 2013.
We also refer to the substantive principles of law as contained in Section 47 ('Questions to be determined by the Court executing decree') under Part II, Execution, of the CPC.
The Director(s) of the Builder Co. shall have to discharge the onus to show that they are not liable, along with the Builder Co., jointly and severally, on the question being raised in the executing Forum in execution proceedings.
We are making this observation in reference to 'Enforcement' under Section 25(3) and 'Penalties' under Section 27 of the Act.
So disposed.