STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
(Additional Bench)
Appeal No. | : | 65 of 2021 |
Date of Institution | : | 26.08.2021 |
Date of Decision | : | 28.03.2023 |
Sanjeev Wadhwa @Sanjeev Kumar aged about 36 years, C/o Ravi Kumar, R/o Flat No.3-A, Ground Floor, Garden Villa, Near Indane Gas Agency, Zirakpur, SAS Naga, Mohali, Pb (in the complaint mentioned as Sanjeev Wadhwa, Introducer/Eligible Channel Partner, WC Code – 0215, M/s Emerging India Real Assets (P) Ltd., SCO No.46-47 1st Floor, Sector 9-D, Chandigarh-160009.
…Appellant
V e r s u s
- Ajaib Kaur W/o Sh. Harkrishan Singh, R/o H.No.406, Sector 25, Panchkula.
- M/s Emerging India Real Assets (P) Ltd., SCO No.46-47 1st Floor, Sector 9-D, Chandigarh through its Managing Director - 160009.
..Respondents
Appeal under Section 41 of the Consumer Protection Act, 2019 against order dated 15.01.2019 passed by District Consumer Disputes Redressal Commission-I, U.T. Chandigarh in Consumer Complaint No.485/2017.
BEFORE: MRS. PADMA PANDEY, PRESIDING MEMBER
Mr.PREETINDER SINGH,MEMBER
Argued by: Sh.Nitesh Singhi, Advocate for the appellant.
Sh.Mukesh Verma, Advocate for respondent No.1
None for respondent No.2
PER PADMA PANDEY,PRESIDING MEMBER
This appeal is directed against the order dated 15.01.2019, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the complaint bearing No.CC/485/2017 and directed the Opposite Parties in the following terms;-
“ In the light of above observations, we are of the concerted view that the Opposite Parties No.1 & 2 are found deficient in rendering proper service to the complainant and also indulged into unfair trade practice. Hence, the present complaint of the Complainant is allowed. The Opposite Parties are, jointly and severally, directed as under:-
(i) To refund the amount of Rs.5,03,000/- to the Complainant with interest @9% per annum from the date of deposit(s), till realization.
(ii) To pay Rs.25,000/- as compensation to the Complainant for the unfair trade practice and harassment caused to her.
(iii) To also pay a sum of Rs.10,000/- to the Complainant as litigation expenses.
This order shall be complied with by Opposite Parties within one month from the date of receipt of its certified copy, failing which, they shall be liable to pay interest @12% p.a. instead of 9% p.a. on the amount mentioned at Sr.No.(i) above from the date of respective deposits till realization and also to pay interest @12% p.a. on the compensation amount mentioned at Sr.No.(ii) above from the date of filing the complaint till its realization, besides paying litigation expenses mentioned at Sr. No.(iii) above.
2. Before the Ld. Lower Commission, it was case of the complainant/respondent No.1 that Opposite No.1/Respondent No.2 is a company which launched a project named Emerging Valley at Banur – Landran Highway, Punjab, and Opposite Party No.2/appellant was a Introducer/ECP of Opposite Party No.1 having their registered office at M/s Emerging India Real Assets (P) Ltd., SCO No.46-47, Ist Floor, Sector-9-D, Chandigarh. Opposite Party No.1 provided six types of Residential plots according to their sizes. A copy of the brochure is Annexure C-1. The Complainant booked a Residential Plot (150 sq. yards) at the proposed project. The total consideration of the said residential plot was Rs.4,80,000/. The Complainant opted for the Payment Plan-A and paid a sum of Rs.2,23,000/- to the Opposite Parties as first instalment vide cheque dated 7.7.2014 and the same was acknowledged vide slip No.EV11565 dated 21.7.2014 (Annexure C-4). The complainant paid another sum of Rs.1,30,000/- vide cheque No.510044 dated 24.7.2014 to Opposite Party No.1 and in lieu of that receipt No.EV/1640 dated 28.7.2014 was issued (Annexure C-5). Thereafter, the complainant paid Rs.1,00,000/- vide two receipts bearing No.299 and 304 dated 30.7.2014, copies of which are Annexure C-6 & C-7. It is alleged that OP No.2/appellant came to complainant’s house and told her that if she pays another sum of Rs.50,000/- then her case shall be considered on priority basis and accordingly the complainant paid Rs.50,000/- through two instalments i.e. Rs.15,000/- on 11.6.2015 and Rs.35,000/- on 3.7.2015. It is alleged that on asking by the complainant, OP No.2 gave a receipt on simple paper for receiving the payment of Rs.50,000/-(Annexure C-8). Later on, the Complainant came to know that the Opposite Parties had not taken the requisite permission from the concerned authorities for selling the residential Plots. The Complainant on coming to know about this, visited the office of Opposite Parties for refund of her money, but, without any result. Hence, Alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, a consumer complaint was filed before the Ld. Lower Commission.
3. Opposite Parties No.1 & 2 filed their joint written statement before the Ld. Lower Commission, inter alia, pleading that the Plot which had been booked by the Complainant, the payments of the same were to be made by the Complainant under installment linked payment plan. The Complainant has only made payment of Rs.4,53,000/- against the net sale price of Rs.27,00,000/-. The Complainant, thus, defaulted in almost all the payments allegedly made by her knowing fully well that it is an installment linked plan and time was the essence of the contract. The possession of the plot was to be given within 36 months from the date the Complainant had deposited 90% of the net sale price of the plot. However, the Complainant had paid only 20% of the net sale price. It was stated that OP No.2 has no concern with the booking of plot as he was only an employee of the OP company. OP NO.1 admitted receipts issued by the company about receiving total payment of Rs.4,53,000/ i.e. Rs.2,23,000/-, Rs.1,30,000/- and Rs.1,00,000/- from the complainant. However, the Opposite Parties denied to have received any further payment and issue of receipt Annexure C-8. The other allegations were denied and a prayer was made for dismissal of the Complaint.
4. On appraisal of the pleadings, and the evidence adduced on record, the Ld. Lower Commission allowed the complaint of Respondent No.1/ Complainant, as noted in the opening para of this order.
5. Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/Opposite Party No.2.
6. We have heard Learned Counsel for the parties, and have gone through the evidence and record of the case with utmost care and circumspection.
7. The core question that falls for consideration before us, is as to whether, the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it.
8. The main ground, in the appeal, taken by the appellant is that the Ld. Lower Commission though gave its finding that whole of the payment was received by Opposite Party No.1, yet it failed to take into consideration that complainant was not consumer qua Opposite Party No.2/appellant, especially when no consideration was ever received by the appellant. Further appellant was only an employee of OP No.1 and not its agent. The complainant has failed to place on record any document to show that appellant was the agent of OP No.1 and he had received any consideration in regard to the alleged plot, thus, the Ld. Lower Commission wrongly held that the appellant was an agent of OP No.1. The appellant was earlier doing his job with OP No.1 as Wealth Manager Sales just to earn his livelihood and had submitted his resignation on 20.09.2017, which was duly accepted by the concerned authorities. It has been contended by the Counsel for the appellant that despite the fact that there was no deficiency in service or unfair trade practice on behalf of the appellant the Ld. Lower Commission wrongly passed the impugned order by making him jointly and severally liable with Opposite Party No.1 to refund the amount which was never received by him.
9. It is admitted aspect of the case that the complainant was allotted plot of 150 sq. yads in the Project namely Emerging Valley, Banur-Landran Highway (Annexure C-1) and payment plan opted by the complainant is given in Annexure C-2. There is also no denying the fact that the payment of Rs.2,23,000/- was made to OP No.1 vide acknowledgement slip dated 21.7.2014, Rs.1,30,000/- was paid vide cheque receipt dated 28.7.2014, Rs.31,000/- vide receipt dated 30.7.2014 and Rs.69,000/- vide receipt dated 30.7.2014 annexures C-4 to C-7 respectively. Annexure C-8 is the alleged receipt given by the appellant on 11.6.2015 on a simple paper about allegedly receiving Rs.15,000/- on 11.6.2015 and Rs.35,000/- on 3.7.2015. However, the appellant has denied to have received the said amounts and issue of the receipt. The learned counsel for the complainant/respondent No.1 could not satisfactorily explain why this amount of Rs.50,000/- was paid in cash and why printed receipt on letter head of the company was not obtained in lieu of payment of Rs.50,000/-. The only averment made in the complaint is that the appellant visited her house and told that if she will pay another sum of Rs.50,000/=- then her case shall be considered on priority basis. The complainant allegedly made this payment on 11.6.2015 and 3.7.2015 but in the month of October, she went to the office OP No.1 to know about the status of allotment/registry/possession of the plot, despite the fact that she did not adhere to the payment plan of making payment of 90% of the total consideration of the plot.
10. It is pertinent to mention here that there is no appeal on behalf of the company M/s Emerging India Real Assets (P) Ltd, which had launched the project in question and the amount was deposited with it qua booking of the plot vide receipts Annexures C-4 to C-7. However, Opposite Party No.1 in its written statement before the Ld. Lower Commission has denied to issue Annexure C-8, which is a alleged receipt of Rs.50,000/- given on simple paper by stating that it does not bear any letter head, nor the same is stamped by the OP. The name and city of the project for which the said amount was paid is also not mentioned. It is further stated in para-9 of the written statement that Opposite party No.2/appellant has been arrayed in his personal capacity, however, no allegation has been made in the complaint as to how Opposite Party No.2 is responsible for day to day affairs, management and working of the company. It is further stated in the said para that in the absence of any allegation against OP No.2, he has been unduly dragged into unwarranted litigation and hence, the answering OP seeks the indulgence of the Forum for deletion of the name of OP No.2 from the array of parties. Even a perusal of Annexure C-2 attached with the complaint reveals that in the heading “Introducer” the name of “Sanjeev Wadhwa” has been given and it is tick- marked as “Employee” and his Employee code is mentioned as 0215.
11. After going through the contents of the appeal and the impugned order passed, we are of the view that the Ld. Lower Commission rightly ordered refund of the amount alongwith other allied reliefs. The prayer made by the appellant for setting aside the impugned order dated 15.1.2019 cannot be acceded to in its totality. However, in view of the fact that the appellant was only an employee and not an agent of the company/Opposite Party No.1, this Commission is of the view that ends of justice would meet if the impugned order is directed to be complied with by Opposite Party No.1 only instead of jointly and severally by the Opposite Parties. Since the appellant was only an employee of the company M/s Emerging India Real Assets (P) Ltd, he cannot be held personally liable for the acts and conduct of the company- Opposite Party No.1.
12. In view of the above discussion, this appeal is partly accepted with the modification that the impugned order dated 15.1.2019 of District Commission-I shall be complied with by Opposite Party No.1 only instead of jointly and severally by the Opposite Parties.
13. In view of the present Appeal being partly accepted with above modification in the impugned order, the pending application(s), if any, also stands disposed of accordingly.
14. Certified copies of this order be sent to the parties free of charge.
15. The file be consigned to Record Room, after completion.
