Chandigarh

DF-II

CC/482/2021

Deepak Rawat - Complainant(s)

Versus

M/s Soni Hi-Tech Builders Pvt. Ltd. - Opp.Party(s)

Devinder Kumar Adv.

06 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	482 of 2021
Date  of  Institution	:	20.07.2021
Date   of   Decision	:	06.04.2023

 

 

 

 

Deepak Rawat son of Sh.Manver Singh Rawat, aged about 36 years, House No.5148-B, Sector 38 West Complex, Chandigarh

             …..Complainant

 

Versus

 

1]  M/s Soni Hi-Tech Builders Private Limited, SCF No.7-8, Maa Shimla Homes Part-I, Parvati Enclave Road, Near Vikram Public School, Desu Majra, Teshil Kharar, District SAS Nagar, Mohali through its Managing Director.

2]  Radhey Soni, Director, M/s Soni Hi-Tech Builders Private Limited, SCF No.7-8, Maa Shimla Homes Part-I, Parvati Enclave Road, Near Vikram Public School, Desu Majra, Teshil Kharar, District SAS Nagar, Mohali

3]  Ram Chander Soni son of Late Sh.Mani Ram Soni, Director, M/s Soni Hi-Tech Builders Private Limited, SCF No.7-8, Maa Shimla Homes Part-I, Parvati Enclave Road, Near Vikram Public School, Desu Majra, Teshil Kharar, District SAS Nagar, Mohali

    ….. Opposite Parties

 

4]  Allahabad Bank, Desu Majra, Kharar Branch, Kharar, District Mohali through its Branch Manager.

    ….. Performa Opposite Parties

[2]

Consumer Complaint  No	:	483 of 2021
Date  of  Institution	:	28.07.2021
Date   of   Decision	:	06.04.2023

 

 

 

 

Amrik Singh son of Sh.Mohinder Singh, aged about 43 years, House No.3380, Sector 25-D, Chandigarh

             …..Complainant

Versus

1]  M/s Soni Hi-Tech Builders Private Limited, SCF No.7-8, Maa Shimla Homes Part-I, Parvati Enclave Road, Near Vikram Public School, Desu Majra, Teshil Kharar, District SAS Nagar, Mohali through its Managing Director.

2]  Radhey Soni, Director, M/s Soni Hi-Tech Builders Private Limited, SCF No.7-8, Maa Shimla Homes Part-I, Parvati Enclave Road, Near Vikram Public School, Desu Majra, Teshil Kharar, District SAS Nagar, Mohali

3]  Ram Chander Soni son of Late Sh.Mani Ram Soni, Director, M/s Soni Hi-Tech Builders Private Limited, SCF No.7-8, Maa Shimla Homes Part-I, Parvati Enclave Road, Near Vikram Public School, Desu Majra, Teshil Kharar, District SAS Nagar, Mohali

    ….. Opposite Parties

 

4]  Allahabad Bank, Desu Majra, Kharar Branch, Kharar, District Mohali through its Branch Manager.

….. Performa Opposite Parties

 

BEFORE: MR.AMRINDER SINGH SIDHU,     PRESIDENT

        MR.B.M.SHARMA                 MEMBER

                               

 

Argued by   :    Sh.Devinder Kumar, Counsel of complainant

None for OPs No.1 to 3

Sh.Vikas Goel, Counsel of OP NO.4

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

 

        By this common order, we propose to dispose of the above mentioned two consumer complaints in which similar questions of law and facts are involved.

2]       The facts are being taken from the present “Complaint Case No.482 of 2021 – Deepak Rawat Vs. M/s Soni Hi-Tech Builders Pvt. Ltd & Ors.”.

3]       The present complaint has been filed by the complainant pleading that he booked a 3 BHK Flat in the project of OPs, namely, “Maa (New) Shimla Homes, Part-I”, village Fatehpur, Tehsil Kharar, SAS Nagar Mohali and paid an amount of Rs.4 lacs whereupon ‘Agreement to Sell’ was executed in respect of Flat NO.80, First Floor (consisting of Drawing Dining (three) Bedroom, Modular Kitchen, Three toilet Super Area 1250 sq.ft. along with 1/3rd un-partitioned share of Land measuring 35 square yards out of land bearing Khewat Khatuni No.153-178/188-224,Khasra No.33//19/2(1-7) - 33/10/2 (1-18) 10/3(2-2) 11(1-2) situated at Maa (New) Shimla Homes (Part-I) Hadbast No.33, Village Fatehullapur, Teshil Kharar, District SAS Nagar (Ann.C-1 & C-2).  Thereafter, sale deed was executed between the complainant and OP in respect of the said flat on 18.12.2012. It is stated that the total basic price of the flat was Rs.29 lacs, which the complainant had paid (Rs.25 lacs at the time of sale deed by availing loan from OP NO.4 Bank and Rs.4 lacs already paid at the time of agreement to sell). It is submitted that the OPs, though had agreed to handover the possession of the flat complete in all respect within 2 years from the date of sale, but they failed to deliver the possession of the flat having completion and occupation certificate much after expiry of agreed period.  It is stated that the complainant has visited the OPs a number of times to get the possession and also served legal notice dated 25.6.2021 (Ann.C-4), but to no avail.  Hence, this complaint has been filed alleging the above said act & conduct of the OPs as deficiency in service and unfair trade practice    

 

4]       The OPs No.1 to 3 have filed joint written version stating that the complainant was employee of the OPs and he continued his job with them till November, 2020. It is stated that the flat in question was booked by the complainant for commercial purpose for earning huge profit under the buyback scheme.  It is also stated that EMIs for the said home loan have been paid by the OPs and the complainant has not made payment against EMIs. It is submitted that under Buyback scheme, the OPs paid an amount of Rs.6,50,000/- on 19.04.2016.  It is also submitted that as agreed under Buyback scheme, on the payment of said Rs.6,50,000/-, the Opposite parties requested the Complainant to execute Sale deed in favour of the Opposite Parties but the Complainant again suggested the Opposite Parties that for avoiding expenses on Stamp Duty, rather than executing Sale deed in favour of the Opposite Parties, he will execute the Sale Deed in favour of the actual purchaser of the flats. Accordingly, the Complainant till date has not executed the Sale Deed in favour of the Opposite Parties. Observing the indecisive attitude of the Complainant, the Opposite Parties in October 2020, asked the Complainant to either execute the sale deed of the flats in favour of the Opposite Parties or pay back the entire amount comprising of Booking Amount Rs.4,00,000/-, Profit amount Rs.6,50,000/- and the amount paid by the Opposite Parties against the Home Loan EMIs. On this, the Complainant left the job of the Opposite Parties in November 2020. At the time of leaving his job and in the absence of Opposite Parties, the Complainant took away various documents, portable hard disc, one vehicle Maruti Suzuki Dzire bearing R/C No.CHOIBA-8191 along with keys and documents of the Opposite Parties illegally. When the Opposite Party repeatedly requested the Complainant to return the office documents, portable hard disc and vehicle of the Company and to either execute the sale deed or refund the Profit amount along with Booking Amount and amount paid by the OP against the said Home Loan EMIs, the Complainant filed this false, frivolous Complaint against the Opposite Parties.  It is also submitted that it is not the Opposite Parties but the Complainant who is required to either execute the Sale Deed in favour of the OPs or refund the Profit amount along with Booking Amount and amount paid by the OPs against the said Home Loan EMIs. Other allegations have been denied, being false and pleading no deficiency in service, the OPs No.1 to 3 have prayed for dismissal of the complaint.

5]      The OP No.4-Bank in its written versions stated that it has been unnecessarily dragged in the arena of the OPs when neither they are concerned with the delay of physical possession of the flat of the complainant from OPs No.1 to 3 nor the OP No.4 has any concern whatsoever with the claim of the complainant and further the dispute pertains to the loss, if any, is between the complainant and OPs No.1 to 3. It is stated that complainant Deepak Rawat has been sanctioned home loan of Rs.25 lacs and a Home Loan Agreement was also executed between Deepak Rawat and OP Bank.  Denying other allegations and pleading no deficiency in service on its part, the OP No.4 has prayed for dismissal of complaint qua it.

 

6]       Replication has also been filed by the complainant controverting the assertions made by OPs No.1 to 3 in their reply.  

 

7]       Parties led evidence in support of their contentions.

 

8]       We have heard the ld.Counsel for the complainant, ld.Counsel for OP No.4 and have perused entire record including written arguments.  

9]       From the perusal of the record, it is observed that written version filed on behalf of OPs No.1 to 3 has not been filed by an authorized person, therefore, the written version so filed cannot be taken into consideration due to lack of legal competency to file the same. The OP No.1-Company is a limited company and written version has been filed on the basis of Power of Attorney given to the learned Counsel of the OPs.

10]     In order to find out the legal consequences of filing the written statement and other proceedings without having competent authority to do so, the judgment of the Hon'ble Supreme Court of India in the case reported as (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” is important. In para no.11 of the judgment,  it has been held as under:-

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

         Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) SCC 30 that the

“bare authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorized to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorized to issue power of attorney in favour of Sh. Bhupinder Singh.”

         Further Hon’ble State Consumer Commission, Punjab in FA No.1235 of 2015 decided on 25^th of January 2017 titled as LG Electronics India Private Limited Vs Sitaram Ram Chaudhary also held that the person instituted by unauthorized person has no legal effect.

11]      It is also pertinent to mention here that OPs No.1 to 3 have filed written version to the complaint on 10.02.2022 whereas OP No.4 filed its written version on 02.02.2022 i.e. beyond stipulated period of 45 days as has been held in the judgment titled as New India Assurance Company Ltd. Vs. Hilli Multipurpose Cold Storage Pvt. Ltd. AIR 2016 SC 86. The Hon’ble Supreme Court held that the District Commissions/State Commissions have no power to extend time for filing the response to the complaint beyond 45 days. Hence, the written version filed after 45 days have no legal value and effect.

12]      Hence from above mentioned discussion, it is clear that written version filed by OPs No.1 to 3 has no legal value and legal affect in the eyes of law on account of being filed by person who is not authorized to do so due to lack of placing on record the ‘Resolution of Board of Directors’ to this effect and secondly the written version filed after 45 days from the date of receipt of the notice by the OPs.   

13]      For the sake of arguments, for the time being, even if written version filed by the OPs presumed to be taken into consideration and considering the complaint on merits even then  it is well evident on record from Agreement to Sell as well as Sale Deed, executed by OPs No.1 to 3 in favour of the complainant that the complainant has been allotted and sold the flat in question by OPs No.1 to 3 on receipt of entire amount.  However, the complainant despite making entire payment, has not been given physical possession of the flat in question by OPs No.1 to 3 till date i.e. even after about 11 years.  Record further reveals that despite of serving legal notice to the OPs, they did nothing and the complainant has been forced to indulge in litigation.  Thus, the act & conduct of OPs No.1 to 3 clearly amounts to deficiency in service on their part. 

14]      The Hon’ble Supreme Court of India in  case ‘Fortune Infrastruture vs. Trevor’D Lima, 2018(5) SCC 442 held that a person cannot be made to wait indefinitely for the possession of the flats allotted to him and is entitled to seek the refund of the amount paid by him along with compensation.

15]      From the above discussion and findings, we are of the opinion that the deficiency in service has been proved on the part of OPs No.1 to 3. Therefore, the present complaint is allowed with direction to OPs No.1 to 3 to refund entire amount of Rs.29 lacs (Twenty Nine lakhs Only) to the complainant along with interest @ 12% p.a. from the date of sale deed i.e. 18.12.2012 till the date of actual realization,  subject to the condition that after receipt of the above awarded amount, the complainant shall be legally bound to execute registered Sale Deed in respect of the flat/property in question in favour of the OPs No.1 to 3 on account of receiving sale consideration from OPs No.1 to 3. OPs No.1 to 3 shall also pay an amount of Rs.25,000/- as lump sum compensation to the complainant for his harassment & litigation expenses.

 

16]      Similarly, the connected C.C.No.483 of 2021 -‘Amrik Singh vs. M/s soni Hi-Tech Builders Private Ltd. & Ors.’ also stands allowed with directions to the OPs No.1 to 3 to refund entire amount of Rs.17,70,000/- (Seventeen Lakh & Seventy Thousand Only) to the complainant along with interest @ 12% p.a. from the date of sale deed i.e. 24.12.2012 till the date of actual realization,  subject to the condition that after receipt of the above awarded amount, the complainant shall be legally bound to execute registered Sale Deed in respect of the flat/property in question in favour of OPs No.1 to 3 on account of receiving sale consideration from OPs No.1 to 3. OPs No.1 to 3 shall also pay an amount of Rs.25,000/- as lump sum compensation to the complainant for his harassment & litigation expenses.

17]      This order shall be complied with by OPs No.1 to 3 within a period of 60 days from the date of receipt of copy of this order.

18]       A copy of this order be placed in connected consumer Complaint No.483 of 2021 -‘Amrik Singh vs. M/s Soni Hi-Tech Builders Private Ltd. & Ors.’’

19]      The complaint qua OP No.4 stands dismissed as there is no deficiency in service on its part.    

20]      Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced                                                             

6^th April, 2023                                                                                                                                                                                                                                  

Sd/-

(AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

 (B.M.SHARMA)

MEMBER