Haryana

StateCommission

A/1141/2017

AJAY ENTERPRISES PVT. LIMITED - Complainant(s)

Versus

NIDHI SAINI - Opp.Party(s)

PRIYA DEEP

23 Oct 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      1141 of 2017

Date of Institution:        22.09.2017

Date of Decision :        23.10.2017

 

Ajay Enterprises Private Limited 8^th Floor, Eros Corporate
Tower, Nehru Place, New Delhi-110019

                             Appellant-Opposite Party No.1

Versus

 

1.      Ms. Nidhi Saini, H.No.15/1, Ward No.17, Udmipura, Opposite Saini Dharamshala, Jhajjar Road, Rohtak.

                                      Respondent-Complainant

2.      Mr. L.C. Lilani, Proprietor, Prudent Properties, 205, 2^nd Floor, Vardhaman Key Point Plaza, Plot No.1, L.S.C. Sector-6, Dwarka, New Delhi – 110075.

Respondent-Opposite Party No.2

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri Balbir Singh, Judicial Member.

                             Shri Diwan Singh Chauhan, Member.            

 

Argued by:          Ms. Priya Deep, Advocate for appellant. 

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This appeal has been preferred against the order dated August 10^th, 2017 passed by District Consumer Disputes Redressal Forum, Rohtak (for short ‘the District Forum’).

2.                M/s Ajay Enterprises Private Limited – Opposite Party No.1, developed a new project namely Eros Sampoornam at Plot No.GH-01, Sector-2, Greater Noida Extension. Complainant-Nidhi Saini got booked Housing Unit No.302 in Tower Y-3, in the above mentioned project after making payment of booking amount of Rs.2,70,000/- vide cheque dated January 17^th, 2013 drawn on Punjab National Bank, Civil Lines, Rohtak through opposite party No.2 being agent of opposite party No.1 construction company. The remaining sale price amount was to be paid as per Construction Linked Plan (CLP) considering demand of the opposite party No.1. The complainant made payment of an amount of Rs.3,20,000/- to the opposite party No.1 in the month of April, 2013 being 10% of the total sale price amount. In the second week of month of April, 2013, the opposite party No.1 raised demand of 10% of the total sale price without issuance of completion of the construction stage. The opposite party No.1 did not provide the completion of the construction stage to the complainant despite request orally and in writing. Thereafter, in the same manner, the opposite party No.2 used to raise demand of 10% of the total cost of the sale price without providing completion of the construction stage. In this way, up to the month of November, 2013, the complainant had raised demand of Rs.22.00 lacs from the complainant. When in the month of November, 2013, the complainant enquired about the project report from the Project Manager and other officials of the opposite party No.1, he was not behaved properly and un-parliamentary language was used against the complainant and her father.

3.                By this time, the complainant had paid total amount of Rs.5,90,000/- to the complainant out of the total sale price amount including earnest money. As per version of the complainant, she was assured by the opposite party No.2 Shri L.C. Lilani, agent of the opposite party No.1 that the construction work will start in the month of March, 2013 and possession of the unit will be delivered to the complainant in the month of September, 2013. The complainant was assured by opposite party No.2 that the complainant will be at liberty to exit from the project at any time and will get guaranteed buy back profit of the rate of 24% per annum from the date of booking, on the payment made by the complainant, from the date of booking and will be entitled to receive the total amount paid by the complainant. The complainant prayed that the opposite parties be directed to pay an amount of Rs.5,90,000/- to the complainant with interest at the rate of 24% per annum from the date of deposit.

4.                The complaint filed by the complainant was allowed ex parte by the learned District Forum vide order dated June 08^th, 2015. The opposite parties preferred to file appeal bearing No.566 of 2015 with a prayer to set aside the impugned order dated June 08^th, 2015. The impugned order dated June 08^th, 2015 was set aside by the Haryana State Consumer Disputes Redressal Commission, Panchkula vide order dated October 25^th, 2016. The complaint case was remanded back for fresh decision after giving opportunity to the opposite parties to file written version and to adduce evidence. During pendency of the appeal, the opposite party No.1 paid an amount of Rs.3,31,150/- to father of the complainant who is an Advocate, using undue influence and coercion. Father of the complainant agreed to receive an amount of Rs.3,31,150/- instead of full amount of Rs.5,90,000/- along with interest under protest on March 23^rd, 2015. Thereafter, the opposite parties were given an opportunity to file written statement and to lead evidence.

5.                After hearing arguments when earlier complaint No.405 of 2014 was fixed for pronouncement of the order, the complainant Nidhi Saini filed an application before the learned District Forum with a prayer that due to some technical defects in the case, the complainant does not want to proceed with the present complaint and wants to withdraw her complaint with permission to file afresh complaint on the same cause of action with a prayer to condone delay in filing complaint as provided in Section 14(2) of the Limitation Act. The complaint was dismissed with liberty to file case afresh in appropriate court of law. The condonation of delay as provided under Section 14(2) of the Limitation Act was allowed. Statement of Shri P.R. Saini, learned counsel for the complainant who is father of the complainant, also was recorded on July 10^th, 2017. Considering application filed by the complainant and statement of Shri P.R. Saini, Advocate, the impugned order dated July 10^th, 2017 was passed by the learned District Forum in presence of Ms. Priyadeep Advocate for opposite party No.1 and Shri M.K. Munjal, Advocate for opposite party No.2.

6.                What happened after complaint No.405 of 2014 was dismissed as withdrawn, the complainant filed a fresh complaint bearing No.461 of 2017 on August 09^th, 2017 before the learned District Forum, Rohtak. The second complaint filed by the complainant is still awaiting decision before the District Forum.

7.                Aggrieved with the impugned order dated July 10^th, 2017 passed by the learned District Forum, the opposite party No.1 filed the present appeal bearing No.1141 of 2017 with a prayer to set aside the impugned order dated August 10^th, 2017 passed by the learned District Forum and to direct the learned District Forum to recall the impugned order dated August 10^th, 2017 passed in Consumer Complaint No.461 of 2017 titled as “Nidhi Saini versus M/s Ajay Enterprises Private Limited and another” and to pass any such order as may be deemed fit and appropriate in the facts and circumstances of the present case.

8.                The impugned order has been challenged on the ground that the complaint has been dismissed as withdrawn with permission to file afresh complaint on the same cause of action mentioning that there are technical defects but those technical defects have not been mentioned in the application filed by the complainant. The complainant by taking false grounds obtained the impugned order and changed the entire complaint by adding modifications and covering up the loopholes and lacunas of the earlier complaint and that too when the case was fixed for pronouncement or order. By merely mentioning technical defects, the complainant changed entire nature and merits of the original complaint filed by her. Few new paragraphs have also been added leveling fresh allegations in the complaint which were not part of the earlier complaint. In fact, by taking plea of technical defects, the complainant improvised her complaint and thus by taking advantage of the impugned order and ignorance of the learned District Forum has caused grave injustice to the appellant. Learned District Forum has also committed an error while passing the impugned order and while taking cognizance of the fresh complaint bearing No.661 of 2017 without noting that the complainant had entirely changed the facts of the complaint. Moreover, learned counsel for the appellant/opposite party No.1 is having her office at New Delhi and appeared on that particular date before the National Company Law Tribunal, Chandigarh Bench. The complainant got marked presence of the learned counsel for the opposite party No.1 wrongly while passing the impugned order. Moreover, settlement has already taken place in between the complainant and the opposite party No.1 and Shri Paras Ram Saini, Advocate-father of the complainant has already received full and final payment as per settlement dated March 24^th, 2015 as Rs.3,31,150/-. It has been prayed that the appeal be allowed.

9.                We have heard learned counsel for the parties and perused the case file.

10.              It is evident from the copy of the impugned order dated July 10^th, 2017 that the impugned order was passed in presence of Ms. Priyadeep, learned counsel for the opposite party No.1 as well as Shri P.R. Saini, learned counsel for the complainant and Shri M.K. Munjal, learned counsel for the opposite party No.2.  The impugned order was passed by the learned District Forum granting permission to the complainant to withdraw her complaint No.405 of 2014 with permission to file afresh case on the same cause of action condoning delay in filing the fresh complaint under Section 14(2) of the Limitation Act. Appellant has taken plea in its appeal that Ms. Priyadeep, learned counsel for the opposite party No.1 on July 10^th, 2017 appeared before National Company Law Tribunal, Chandigarh Bench on July 10^th, 2017 as is evident from the copy of the order dated July 10^th, 2017 passed in C.P.No.10/ND/2013 titled as “M/s Sudha Commercial Company Ltd. vs. M/s Milkfood Ltd. & Ors.”

11.              In our view, merely because presence of Ms. Priyadeep Advocate was mentioned in the order dated August 10^th, 2017 in the above mentioned case before National Company Law Tribunal, findings cannot be given that Ms. Priyadeep Advocate did not appear in the proceedings of complaint No.405 of 2014 on July 10^th, 2017. The mistake regarding marking presence may be before the District Forum and also before the National Company Law Tribunal. Moreover, in the order dated August 10^th, 2017 passed by the National Company Law Tribunal, it is not mentioned that at what time Ms. Priyadeep Advocate appeared in that case. The working hours of the District Forum are from 10:00 A.M. to 4:00 P.M. The travelling distance by car from Chandigarh to Rohtak, these days, is not more than four hours. We want to make it clear that there may be possibilities of a lawyer to appear in a case at Chandigarh and on the same date in another case at Rohtak also. Moreover, the complainant did not file any application before the District Forum mentioning that due to inadvertent or clerical mistake, the name of learned counsel for the opposite party No.1 was mentioned in the order.

12.              In our view, after passing of the impugned order dated August 10^th, 2017 taking cognizance and issuance of notice to the opposite parties in a fresh complaint No.461 of 2017 on the same cause of action was justified and cannot be held to be illegal. Moreover, the impugned order dated August 10^th, 2017 was passed after filing of an application by the complainant for permission to withdraw the complaint bearing No.405 of 2014. The opposite parties neither requested for filing reply of the application nor raised any objection when the impugned order was passed. Filing of the present appeal appears to be a result of afterthought. Moreover, the impugned order cannot be set aside merely because the complainant has taken few pleas in his fresh complaint which did not exist in complaint No.405 of 2014. We feel if there was defect of any type in the pleas taken in the complaint, the complainant could have requested the District Forum to grant permission to take those pleas by way of amendment in the complaint also. Moreover, the appellant if feels that few pleas have been taken in the fresh complaint which should not have been taken, the appellant-opposite party No.1 can take objection in the proceedings of complaint bearing No.461 of 2017 after withdrawal of earlier complaint. The opposite party can take plea that the full and final payment has been made as Rs.3,31,150/- with the consent of the complainant in his written version in the proceedings of fresh complaint. In this way, by passing the impugned order, no prejudice has been caused to the appellant-opposite party No.1. If the impugned order is set aside at this stage, it is likely to create more complications, litigation and problems.

13.              No other point was raised during the course of arguments.

14.              As per discussions above in detail, we find no invalidity and illegality in the impugned order dated October 17^th, 2017 passed by the learned District Forum. We find no merit in the appeal and the same stands dismissed.

 

Announced 23.10.2017

Diwan Singh Chauhan Member

Balbir Singh Judicial Member

Nawab Singh President

CL