True Zone Buildwell Pvt. Ltd. vs BHOOP SINGH

IN this revision petition, there is challenge to order dated 1.3.2013, passed by State Consumer Disputes REdressal Commission, Haryana, Panchkula (For short, ''State Commission'') in (First Appeal No. 133 of 2013).

BRIEF facts are that Respondent/Complainant had booked a plot of 200 Sq. Yds. and deposited a sum of Rs.2,00,000/ - with Petitioner/Opposite Party, vide receipt dated 20.06.2006. It is not in dispute that at the time of booking of the plot, exact price of the plot was not quoted by the petitioner. Even petitioner never disclosed the exact number of plot which was being allotted to the respondent. Petitioner issued various letters to the respondent to deposit sum of 18,66,715/ -, which were duly replied by the respondent. It is the case of respondent that he never refused to make the payment of the balance amount in respect of the plot which was being allotted to him but petitioner never informed him the exact number of the plot which was to be allotted to him. It is further stated that vide letter dated 11.6.2008, petitioner demanded a sum of Rs.18,66,715/ - with interest without allotting the plot number which is an unfair trade practice. The act of the petitioner in cancelling his allotment is illegal and it amounts to deficiency in service.

PETITIONER in its written statement took the plea that although, the respondent had applied for allotment of a residential plot measuring 200 Sq. Yds. with it and had also paid registration charges of Rs.2.00 lacs through cheque but this was only the offer made by the respondent as at the time of applying for the allotment of the plot, neither the exact price of the plot was quoted nor it was told to the respondent as to which of the plot will be allotted to him. It was only an offer made by the petitioner that the plots are being carved out for sale in Sector -32, Karnal. In response to the aforesaid offer, respondent had deposited a cheque of Rs.2.00 lacs. Since the offer made by the respondent was not accepted by the petitioner, as such the said registration was cancelled and amount was refunded to the respondent. It is further stated that there was no agreement in between the parties for sending allotment letter of a plot to the respondent. For the allotment of a plot, necessary agreement was to be entered by the respondent, thereby completing all the formalities. However, registration of the respondent had been cancelled at the initial stage and the registration money was also returned. Hence, respondent does not come within the purview of a ''Consumer''.

DISTRICT Consumer Disputes Redressal Forum, Karnal (for short, ''District Forum'')vide its order dated 15.06.2012, passed the following directions; "Respondents are directed to allot a plot to the complainant measuring 200 sq. yds in residential township project namely Narsi Village, Phase -I, Karnal on the payment of the amount which was paid by other applicants regarding the plot measuring 200 sq. yds. under NPNL Scheme along with interest which the OPs have charged from the other applicants in case of their failure to pay the installments in time. The OPs are also directed to issue a letter to the complainant mentioning the basic price of the plot and the interest which is to be paid by the complainant within thirty days from the date of receipt of the copy of this order. The OPs are directed to allot the plot and hand over the possession of the same to the complainant after three months from the date on which the basic price and interest thereon is paid by the complainant. The present complaint is accepted accordingly."

Being aggrieved, petitioner filed an appeal before the State Commission. As there was a delay of 201 days in filing of the appeal, an application for condonation of delay was also filed.

THE State Commission vide impugned order, dismissed the application for condoation of delay and on merits also it dismissed the appeal in limini.

HENCE , this revision. We have heard the learned Senior counsel for the petitioner and gone through the record.

IT has been contended by learned Senior counsel, that respondent had booked the plot with the petitioner under P & F Scheme. Therefore, respondent was under contractual duty to pay to the petitioner entire dues and outstanding as per the demand made by the petitioner for allotment of the plot. By non -compliance of the same on behalf of the respondent, petitioner had rightly cancelled the booking of the respondent which does not amount to any deficiency in service

FURTHER , in the grounds of revision it has been pleaded, that since there is no plot left in the project and all units of plot have been sold out, therefore, petitioner is in difficulty to comply with the order of District Forum. The respondent himself is responsible for such a situation by non -complying with the terms and conditions of the booking. Thus, respondent has no grievances against the petitioner. Even otherwise, respondent does not come within the purview of the ''Consumer'' as defined under the Consumer Protection Act, 1986(for short, ''Act'') In support, learned counsel has relied upon following judgments; i) Sheela Gehlot Vs.Sonu Kochar and others, : 2006 (87) DRJ 328 and

ii) Satya Jain (Dead) through LRs and others Vs. Anis Ahmed Rushdie (Dead) through LRs and others : (2013) 8 Supreme Court Cases 131.

ADMITTEDLY , there was delay of 201 days in filing of the appeal before the State Commission.

PETITIONER had sought condonation of delay on the grounds that its authorized representative did not inform Petitioner''s Company about passing of the order dated 15.06.2012 by the District Forum. Further, case of petitioner is that on 30 January, 2013, it had received notice of execution application filed before the District Forum. Petitioner in its application for condonation of delay, has nowhere stated before the State Commission when it received the free copy of order of the District Forum. Petitioner had deliberately omitted to mention this relevant fact in the application for condonation of delay filed before the State Commission.

UNDER these circumstances, the State Commission rightly refused to condone the long delay of 201 days.

ON merits while dismissing the petitioner''s appeal, the State Commission in the impugned order has observed; "Admittedly, the complainant booked a plot of 200 sq. yards and deposited a sum of Rs.2,00,000/ - with the opposite parties vide receipt dated 20.2.2006. It is not disputed that at the time of booking, the exact price of the plot was not quoted by the opposite parties. Even the opposite parties never disclosed the exact number of plot which was being allotted to the complainant. Undisputedly, the opposite parties issued several letters to the complainant to deposit the amount of Rs.18,66,715/ - which were also replied by the complainant. The complainant never refused to make the payment of balance amount in respect of the plot which was being allotted to him. The opposite parties failed to establish on the record the exact number of plot which was being allotted to the complainant. After perusing the documents available on the record and the correspondence between the parties, we are of the view that it is the opposite parties who without disclosing the exact number of plot demanded the amount from the complainant which was never refused by the complainant at any point of time. Since, there was no refusal by the complainant, the opposite parties had no right to cancel the allotment of plot. The act and conduct of the opposite parties clearly established on the record and amounts to deficiency in service. The District Forum after considering each and every aspect of the case has rightly accepted the complaint and issued directions to the opposite parties as mentioned above. Thus, no interference in the impugned order is made out.

Hence, finding no merit in this appeal, it is dismissed in limini both on the ground of limitation as well as on merits".

It is an admitted fact that at the time of booking of the plot, the exact price of the plot as well as location nor the exact number of plot was disclosed by the petitioner to the respondent. In this regard, petitioner''s receipt dated 20.2.2006, acknowledging a sum of Rs.2,00,000/ - from the respondent, is quite interesting and same is reproduced as under; " TRUE ZONE BUILDWELL (P)LTD 112,Babar Road, New Delhi -110001 Ph.:011 -23411834

/836

RECEIPT

Ref. No. 985 Dated: 20.2.2006

Received with thanks from Mr.Bhoop Singh S/o Sh.Rattan Lal resident of 21, Campus, MIG 27(29), Petu School, Air Force Station High School, Changiarh, a sum of Rs. 2,00,000/ - Rupees(in words) Two Lacs only vide Cheque No. 005433 -92000/687965 -108000 Dated 14.2.2006 drawn on towards P & F Booking. Present and future

For True Zone Buildwell(P) Ltd. (Authorized Signatory)"

AS per above noted copy of the receipt, petitioner had taken a sum of Rs.2,00,000/ - towards ''P & F Booking(Present and Future)''.

NO sense can be made out of the meaning (Present and Future). This act of the petitioner in accepting a sum of Rs.2,00,000/ - from the respondent in the year 2006, without disclosing the area, location and number of the plot etc. amounts to a "Deceptive Practice", which falls within the meaning of "Unfair Trade Practice" as defined under Act. Further, above conduct of the petitioner per se amounts to an act of misrepresentation and alluring the innocent public to part with their hard earned money, without giving them any detail as to for what purpose, petitioner had taken the hard earned money of the respondent. Under section 21(b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

HON ''ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd. : 2011 (3) Scale 654 has observed; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".

IN view of the facts and circumstances of the case as discussed above, there is no jurisdictional error or illegality in the impugned order passed by the State Commission. Above judgments (Supra) cited by the learned counsel for petitioner, are not at all applicable to the facts of the present case.

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, go on filing meritless petition in different foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree must be dealt with heavy hands. Unscrupulous builder like petitioner who after taking booking amount of the plot, do not perform its part of obligation should not be spared. A strong message is required to be sent to such type of builders that this Commission is not helpless in such type of matters.

NOW question arises for consideration is as to what should be the quantum of costs which should be imposed upon the petitioner for dragging the respondent upto this fora when petitioner 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 are 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 , the Apex Court in Ramrameshwari Devi and Ors. Vs. Nirmala Devi and Ors. (Civil Appeal Nos. 4912 -4913 of 2011 decided on July 4,2011) has also 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;

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, the Apex Court observed;

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.

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.

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 petition is nothing but gross abuse of process of law and is required to be dismissed with punitive damages. Accordingly, present petition stand dismissed with punitive damages of Rs.2,00,000/ -(Rupees Two Lacs only). Petitioner is directed to deposit the aforesaid amount by way of demand draft in the name of ''Consumer Legal Aid Account'' of this Commission within four weeks from today.

IN case, petitioner fails to deposit the aforesaid amount within the prescribed period, then it shall also be liable to pay interest @ 9% p.a. till realization.

PENDING application stand disposed of. List for compliance on 19 September,2014.