Chandigarh

StateCommission

CC/84/2022

NIDHI MEHRA - Complainant(s)

Versus

SH. SATISH GUPTA - Opp.Party(s)

RAJESH VERMA & MUKESH VERMA ADV.

28 Feb 2023

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Addl. Bench]

===========

Consumer Complaint No.	:	CC/84/2022
Date  of  Institution	:	29/11/2022
Date   of   Decision	:	28/02/2023

 

 

 

 

 

1]    Nidhi Mehra wife of Sh. Manoj Bawra, Resident of House No. 3622, Near Shiv Mandir, Sector 23-D, Chandigarh.

 

2]    Manoj Bawra C/o Babu Ram, Resident of House No. 3622, Near Shiv Mandir, Sector 23-D, Chandigarh.

 

…. Complainants

Vs.

 

1]    Sh. Satish Gupta, Managing Director/ Director/ Promoter/ Developer, M/s Gupta Builders & Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh – 160022.

 

2]    Sh. Anupam Gupta, Director/ Promoter/ Developer, M/s Gupta Builders & Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh – 160022.

 

3]    Sh. Raman Gupta, Director/ Promoter/ Developer, M/s Gupta Builders & Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh – 160022.

 

4]    Sh. Pardeep Gupta, Director/ Promoter/ Developer, M/s Gupta Builders & Promoters Pvt. Ltd., SCO 196-197, Ground Floor, Sector 34-A, Chandigarh – 160022.

…… Opposite Parties

 

BEFORE: PADMA PANDEY             PRESIDING MEMBER

                PREETINDER SINGH     MEMBER

 

 

PRESENT	:	Sh. Mukesh Verma, Advocate for Complainants.
	:	Opposite Parties ex-parte vide order dated 30.01.2023.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

 

 

In brief, the Opposite Parties floated their Project namely Athens-II, situated at Mouja Ramgarh Budha, Zirakpur, District S.A.S. Nagar, Mohali, in which different categories of flats were provided. The Complainants applied for a residential 3BHK + SR Flat No. 706 on 7^th Floor measuring 1953 sq. ft. at Tower Universe (Block B) for a basic sale price of ₹60,00,000/- with the Opposite Parties and paid the entire sale consideration vide different Cheques, as per details given in para 3 of the complaint. The Opposite Parties entered into an agreement of sale with the Complainants on 20.12.2018, according to which the vacant possession of the aforesaid flat was to be handed over on or before 21.12.2020. However, despite receiving the entire sale consideration aforesaid, when the Opposite Parties failed to hand over the vacant possession of the Flat to the Complainants, the Opposite Parties entered into another agreement to buy back the Flat for ₹60,00,000/- after the agreement period i.e. 17.12.2021 and in pursuance of this agreement, the Opposite Parties issued Cheques for compensation by way of interest on the amount paid i.e. 18% p.a. However, the Cheques issued by the Opposite Parties were also dishonoured.  It has been alleged that now, the Opposite Parties had abandoned the Project and ran away to foreign countries by closing their offices. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the Opposite Parties, the Complainants have preferred the instant Consumer Complaint.

 

2.        Notice of the complaint was sent to Opposite Parties seeking their version of the case. However, despite service, nobody has appeared on behalf of Opposite Parties, therefore, they were proceeded against exparte on 30.01.2023.

 

3.        Complainants led evidence by way of affidavits and documents.

 

4.        We have heard the learned counsel for the Complainants and gone through the record of the case with utmost care and circumspection.

 

5.        After scanning of record, including written arguments, our findings are as under:-

 

6.        The thorough perusal of the record reveals that the Complainants paid the entire sale consideration of the Unit amounting to ₹60,00,000/- through three different Cheques dated 17.12.2018, 17.12.2018 and 18.12.2018 in favour of M/s Gupta Builders & Promoters Pvt. Limited, drawn on Punjab National Bank, Bank of Baroda and Punjab National Bank respectively.  Even the agreement of sale dated 20.12.2018 was executed between M/s Gupta Builders & Promoters Pvt. Limited and the Complainants herein. In the said agreement, receipt of consideration amount of ₹60,00,000/- has also been acknowledged. As per para 2 of the aforesaid Agreement of Sale, the possession of the Unit was to be handed over to the Complainants on or before 20.12.2020. It is the case of the Complainants that neither the possession of the Unit was delivered to them within the stipulated period, nor they have been refunded the amount paid, despite repeated requests & personal entreaties and now, the Builder has left/abandoned the project by closing their offices and all abandoned offices have been looted by local miscreants.
7.        Significantly, Opposite Parties did not appear to contest the claim of the complainants and preferred to proceed against ex-parte.
8.        It is a fact that since the Promoter/Developer (M/s Gupta Builders and Promoters Pvt. Limited) has abandoned the Project and the Directors of the company have left the Country, there is no possibility of completion of the construction and development activities at the project site in the near future. 
9.        The Complainants in para 14 of their complaint have specifically maintained that the National Company Law Tribunal has issued moratorium under Section 14 of I.B. Code.
10.        Admittedly, the payments in question were made to Promoter/Developer - M/s Gupta Builders & Promoters Pvt. Limited. One cannot be oblivious of the fact that the company is a juristic person. However, the Complainants have not impleaded said M/s Gupta Builders & Promoters Pvt. Limited as party to the lis. Arraigning of a company as an Opposite Party is imperative.  Applying the doctrine of strict construction, we are of the considered opinion that act of commission & omission by the company is an express condition precedent to attract the vicarious liability of others. The impleadment of the Managing Director/ Director can only be brought in the drag-net on the touchstone of vicarious liability subject to the averments in the Complaint and proof thereof, which ingredient is seriously missing in the present Complaint. Since the complaint has been filed in the present case is against the Managing Director/ Directors, without joining the Promoter - M/s Gupta Builders & Promoters Pvt. Limited, the complaint needs to be dismissed. In this backdrop, the Complainants cannot be allowed to reap any benefit from the law laid down by the Hon’ble Supreme Court in SLP (C) No. 12150 of 2019 titled as “Anjali Rathi and Others Vs. Today Homes & Infrastructure Pvt. Ltd.”, to the effect that the moratorium was only in relation to the Corporate Debtor and not in respect of the Directors/ Management of the Corporate Debtors, against whom proceedings could continue.
11.        To cap it all, there is no denying the fact that the Complainants were ware of the order passed by the National Company Law Tribunal, Chandigarh dated 31.05.2022 under Section 14 of the IB Code, 2016 and that moratorium has been declared, prohibiting continuation or beginning of any suits or proceedings against the builder and appointed an Interim Resolution Professional [IRP]. Notwithstanding this, the Complainants chose to prefer this Consumer Complaint before this Commission by impleading only the Managing Director/ Directors as Opposite Parties without joining the Promoter/ Developer - M/s Gupta Builders & Promoters Pvt. Limited as one of the party, just to avoid the Bench of National Company Law Tribunal, Chandigarh or to prefer their claim before the Interim Resolution Professional [IRP], knowing very well that in view of declaration of moratorium by the National Company Law Tribunal, the proceedings against the company cannot be allowed to continue, under these circumstances.  It is a settled proposition of law that a litigant cannot be permitted to do bench hunting, merely assuming that an order from the bench may not be favourable. To our mind, a litigant cannot be permitted to browbeat the court by seeking a bench of its choice.  There is no room to entertain the same and has to be deprecated in the strongest possible words. At any rate, if the present complaint is allowed, it would not only be allowing Bench hunting, but would also be against the judicial discipline and will erode the confidence of the common man for which the judicial system survives.
12.        For the reasons stated hereinabove, the present Complaint does not merit consideration and the same is dismissed as such, with no order as to costs.
13.        Certified copies of this order, be sent to the parties, free of charge.

 

14.        The file be consigned to Record Room, after completion.

Pronounced

28^th February, 2023                                                           

Sd/-

                                                        (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

                                                        (PREETINDER SINGH)

MEMBER

 

“Dutt”