Haryana

StateCommission

A/1137/2017

PARMOD KUMAR - Complainant(s)

Versus

M/S KAPIL PROPERTIES AND OTHERS. - Opp.Party(s)

VIKAS KUMAR

25 Nov 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

First Appeal No.1137 of 2017

Date of Institution:20.09.2017

Date of decision:25.11.2019

 

Parmod Kumar S/o Sh.Tarif Singh R/o H.No.3, Adehini Village, New Delhi 17.

…Appellant

Versus

 

1.      M/s Kapil. Properties, Village Atmadpur, Faridabad through its proprietor Shri Subhash

2.      Mr. Subhash S/o Shri Jagmal r/o H.No.660, Tuglakabad, New Delhi.

3.      Raj Kishore S/o Sh.Raj Pal R/o Bhatta Colony, Sehatpur, Faridabad.

4.      Surender Kumar S/o Shri  Sohan Lal R/o H.No.663, Tuglakabad, New Delhi.

…Respondents

 

CORAM:   Mr.Harnam Singh Thakur, Judicial Member.
                   Mrs. Manjula, Member.

 

Present:-    Mr.Vikas Kumar, Advocate for the appellant.

                   Mr.B.S.Tewatia, Advocate for respondent Nos.1 and 2.

                   Mr. Gaurav Gupta, Advocate for respondent No.3.

                   Respondent No.4 already ex parte.

                  

                                      O R D E R

 

HARNAM SINGH THAKUR, JUDICIAL MEMBER:

 

The appeal has been preferred against the order dated 18.08.2017 passed by the District Consumer Disputes Redressal Forum, Faridabad (in short ‘District Forum’) vide which the complaint was dismissed.

2.      The brief facts giving rise to the complaint are that he purchased a plot having tentative area 100 sq. yards @ Rs.4000/- per sq. yard in the area of village Mavai, Faridabad at the cost of Rs.4,20,000/- in the said project of the opposite parties.  The opposite party No.2 entered into the blank agreement to sell and cash receipt for Rs.2,00,000/- in favour of the complainant.  After executing the agreement to sell and as per requests made by the complainant, the O.P.No.3 for and on behalf of O.P.No.1 executed a registered sale deed in respect of property measuring 100 sq. yards bearing document dated 25946 dated 04.03.2009, which was duly registered in the office of Sub Registrar Faridabad in favour of wife of complainant.  The complainant requested the OPs to hand over the possession of the plot or to refund the deposited money to him, but, O.P.Nos.2 and 3 did not listen to him.  On 11.08.2014, the O.Ps. refused to hand over the possession.   He also filed police complaint against OPs on 12.08.2014. Thus there was deficiency in service on the part of the O.Ps.

3.      Upon notice,  opposite party Nos.1, 2 and 4 contested the complaint separately and alleged that answering respondent Nos.1and 2 provided the plot from the complainant from Shri Raj Kishore respondent No.3 who executed the sale deed in favour of the complainant for the plot in question and money received by  the O.P. Nos.2 and 4 from the complainant was duly paid by O.P.Nos.2 and 4 to the O.P.No.3. All  the allegations were denied by the O.Ps.  Preliminary objections about maintainability of complaint, locus standi, suppressing the true and material facts, non-joinder and mis-joinder  etc. were also raised and requested to dismiss the complaint as prayed for. Thus there was no deficiency in service on the part of answering O.Ps.

4.      O.P.No.3 filed separate reply and denied knowledge of any agreement to sell between the complainant and the respondent No.2.  Respondent No.3   himself executed the registered sale deed in respect of the said property, which was registered in favour of Smt. Saroj wife of the complainant.  Thus there was no deficiency in service on the part of answering O.P.  O.P.No.4 was proceeded against ex parte vide order dated 05.01.2015.

5.      After hearing both the parties, District Consumer Disputes Redressal Forum, Faridabad (In short “District Forum”) dismissed the complaint vide impugned order dated 18.08.2017.

6.      Feeling aggrieved therefrom, complainant has preferred this appeal.

7.      This argument have been advanced by Sh. Mr.Vikas Kumar, the learned counsel for the appellant as well as Mr.B.S.Tewatia, the learned counsel for the  respondent Nos.1 and 2, Mr.Gaurav Gupta, the learned counsel for the respondent No.3. With their kind assistance the entire records as well as the original record of the District Forum including whatever the evidence has been led on behalf of  both the parties had also been properly perused and examined.

8.      During the course of arguments, it is contended by learned counsel for the appellant  that learned District Forum has wrongly held that dispute in case in hand is of civil nature and does not fall within the ambit of the Consumer Protection Act, 1986 (hereinafter called as the “Act”).  Although, earlier suit was filed by wife of the complainant, but, that was never decided on merits and same was dismissed for non-prosecution on account of non-representative on behalf of the complainant and it was never got restored.  Thus, according to learned counsel for the appellant-complainant the said suit would not come in the way of complaint under appeal filed before the District Forum.  Learned District Forum erred in dismissing the complaint on the ground of maintainability.  Learned counsel for the appellant-complainant has drawn attention of this Commission to the earlier judgement passed in First appeals No.939 to 942 of 2015 titled as M/s Kapil Properties and others Vs.Raja Ram decided on 01.06.2016. The facts in the afore-mentioned first appeals No.939 to 942 of 2015 were identical to the present case.  Learned counsel for the complainant also placed reliance upon judgement of Hon’ble National Commission passed in Kamal Sood Vs. DLF Universal Ltd.,l III (2007) CPJ 7 (NC) and judgement of Hon’ble Apex Court titled as Ghaziabad Development Authority Vs. Union of India, II (2000) CPJ 1, in which it was observed that it is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as Zoning plan, Layout plan, etc. In the case in hand also  O.P. has not obtained any CLU. At the time of sale of the plots in question, from the concerned authorities in the State Government of Haryana and therefore, the sale deed could not be executed in favour of complainant/appellant or his wife.  Now, possession of the plot in question is unauthorized.  Hence, it is submitted by learned counsel for the appellant that impugned order passed by learned District Forum is set aside and appeal be accepted.

9.      On the other hand, it is contended by learned counsel for the contesting respondents that there is no illegality in the impugned order passed by learned District Forum as the dispute in hand is of civil nature and cannot be decided by Consumer Forum as it does not fall within the ambit of the Act. 

10.    Learned counsel for the contesting respondents has further contended that the authorities (supra) relied upon by the appellant are not applicable to the case in hand, because in those cases sale deed was not executed but in the case in hand sale deed is already executed and possession of the plot has already been delivered to the wife of the complainant, who preferred the earlier suit in which she admitted this fact. Learned counsel for the contesting respondents prays that appeal be dismissed.

11.    Both the parties have led evidence and perusal of the leaned District Forum record as well as law cited/relied upon by the appellant before this Commission, we are of the considered view that there is no illegality or perversity in the findings of the learned District Forum.  It is admitted fact that Mrs. Saroj-wife of complainant had filed earlier civil suit No.577 of 2012 and in proceedings of the said suit she admitted that plot in question was purchasing from Sh.Raj Kishore-opposite party No.3.  Sale deed was registered vide document No.25946 dated 04.03.2009 as noted by learned District Forum in the copy of said civil suit Ex. DW3/1.  It  is further admitted that plaintiff was put in actual physical possession of the suit land at the spot on 04.03.2009 itself and ever since she is in actual possession as absolute owner thereof. 

12.    It is pertinent to mention here that the said suit was admittedly dismissed in default and was never got restored by the present appellant or his wife. In the circumstances, the complaint before learned District Forum was not maintainable as keeping in view the nature of the dispute, the appellant could have availed civil remedy in the civil court by filing a fresh suit or restore the earlier one.  The authorities (supra) titled  M/s Kapil Properties and others Vs.Raja Ram of this commission and judgement of Hon’ble National Commission passed in Kamal Sood Vs. DLF Universal Ltd. and judgement of Hon’ble Apex Court titled as Ghaziabad Development Authority Vs. Union of India  relied upon by counsel for the appellant are not applicable to the facts and circumstances of the case. In those case neither the sale deed was executed nor possession was delivered but in the case in hand,  it is otherwise.  The question, whether possession was legal or illegal lies within the domain of the civil court and not before the Consumer Forum or this Commission.

13.    As a sequel to above discussion, it can be safely concluded that we find no illegality or infirmity in the impugned order and no interference is warranted for. Appeal is without merits, hence, stands dismissed.

 

25th  November, 2019       Manjula                                 Harnam Singh Thakur                                                      Member                                 Judicial Member                            

 

S.K

(Pvt. Secy.