Punjab

StateCommission

CC/786/2018

Manjit Kaur - Complainant(s)

Versus

Amritsar development authority - Opp.Party(s)

Sahil Khunger

23 Apr 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,       PUNJAB, CHANDIGARH.

                                              

                                     Consumer Complaint No.786 of 2018

Date of Institution  :    04.10.2018

Date of Reserve     :    12.04.2019

Date of Decision    :    23.04.2019

 

Manjit Kaur wife of Saranjit Singh resident of #383, Model Town, Kapurthala, Punjab.

….Complainant

Versus

1.      Amritsar Development Authority through its Chief   Administrator,     ADA Bhawan, PUDA Colony, Green Avenue, Amritsar, Punjab email ID           :caada12345@gmail.com.

2.      The Estate Officer, Amritsar Development Authority, ADA Bhawan, PUDA Colony, Green Avenue, Amritsar, Punjab email : estateofficerada2016@gmail.com.

….Opposite parties

 

Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.

Quorum:- 

              Mr. J.S.Klar, Presiding Judicial Member,

              Mr.Rajinder Kumar Goyal, Member                       

 

Present:-

     For the complainant     :  Sh.Vinod Khunger, Advocate

     For the opposite parties:  Sh.Ashish Grover, Advocate

 

RAJINDER KUMAR GOYAL,  MEMBER :

            The complainant has filed this complaint, under Section 17 of the Consumer Protection Act 1986, (in short, “the Act”), for issuance of the following directions to the opposite parties:

1. to pay Rs.3,66,918/- i.e. interest @ 18% p.a. on Rs.11,13,750/- deposited by the complainant, till 12.102017 i.e. the date of refund through RTGS.
2. to pay compensation of Rs.2,50,000/- for mental agony and harassment;
3. to pay Rs.55,000/- as litigation expenses.
4. to pass any other direction which this Commission deems fit.

2.         Brief facts, as set out in the complaint, are that the opposite parties invited applications for allotment of different sizes of residential plots in Aero City, situated in Amritsar. The complainant being desirous to purchase a plot in Aero City, Amritsar for her applied and deposited Rs.4,12,500/- EMD on 06.07.2015 through RTGS.  The complainant being successful in the draw of lots was issued a letter of intent dated 15.02.2016 for allotment of residential plot No.752 measuring 275 sq. yards at Aero City, Amritsar. As per the terms of the LOI, the complainant further paid a sum of Rs.7,01,250/- being 15% of tentative price of the plot which includes 2% cancer cess i.e. Rs.82,500/-. Receipt of the deposited amount was issued to the complainant.  As per clause 3 of the LOI, after deposit of the payment, letter of allotment was to be issued to the complainant, which was not issued. Despite repeated requests and reminders, opposite parties failed to issue the allotment letter to the complainant, later it was informed to her by the officials of the opposite parties that being failure of the scheme, the complainant can seek refund for the payment which she deposited. Then on 11.07.2017, the complainant applied for refund of the deposited amount with interest. On 12.10.2017, the complainant received the amount which she paid to the opposite parties, but no interest on the deposited amount was paid by the complainant, which amounts to deficiency in service.  On 30.10.2017, a legal notice was served upon the opposite parties, to which no reply has been received. The opposite parties illegally and unlawfully without any cause and reason have not issued the allotment letter of Plot No.752 at Aero City, Amritsar and also have not paid the interest on the amount deposited. The complainant firstly approached the District Forum, Amritsar by filing a complaint against the opposite parties which was subsequently withdrawn with liberty to file the same with the appropriate forum/court on the same cause of action in view of the law laid down by the Hon’ble National Commission in the case of Ambrish Kumar Shukla and Others Vs. Ferrous Infrastructures Pvt. Ltd.  This act and conduct of the opposite parties amounts to deficiency in service and unfair trade practice. Hence, the complainant filed the complaint seeking above said reliefs.

3.      Upon notice, opposite parties appeared and filed its written statement taking preliminary objections that the complainant is not the consumer; as defined under Section 2 of the Act.  It is further averred that before issuance of the allotment letter; the complainant applied for refund of the deposited amount which was duly refunded. The status of the complainant is at the most of a prospective buyer. The complaint deserves to be dismissed as there is no deficiency in service on the part of the opposite parties. A letter of intent dated 15.01.2016 for allotment of plot measuring 275 sq. yards in Aero City, Amritsar was issued to the complainant being successful in the draw of lots held on 13.01.2016.  As per condition No.11 of the said letter, the possession of the plot was to be handed over after completion of development  works  at  site or 18 months from the date of issuance of the allotment letter, whichever  is earlier, whereas, the complainant

 

before completing the said period, applied for refund of the deposited amount. As per condition No.5 mentioned under the head Earnest Money to be paid with the application in the brochure, it has been specifically mentioned that “No interest shall be paid to the applicant who are successful or are in the waiting list. The present complaint deserves to be dismissed on the ground of non-joinder of the necessary parties as an agreement was executed between the answering opposite parties and M/s DSK Realtors Pvt. Ltd. on 04.03.2014, whereby the said Realtors being owners were to provide the land for the project and the answering opposite parties were to develop the project and profits at the end of the project which was to be shared in the ration of 80% to DSK and 20% to ADA. On merits, it has been admitted that the complainant applied for residential plot and deposited 10% as earnest money along with the application. It is also admitted that a sum of Rs.7,01,250/- was also deposited by the complainant being 15% of the tentative price of the plot. Other averments of the opposite parties have been reiterated as detailed in preliminary objections. Rest of all the averments as averred by the complainant have been denied praying to dismiss the complaint being devoid of merits, as there is no deficiency or unfair trade practice has been committed by the opposite parties.

4.         To prove his claim, the complainant placed on record her affidavit along with documents Ex.C-1 to Ex.C-7.

5.         On the other hand, the opposite party has filed the affidavit of Tejinder Pal Sandhu, Estate Officer, Amritsar Development Authority, Amritsar along with document Ex.R-1.

6.         We have heard the learned counsel for the parties and have gone through the record of the case.

 7.        Learned counsel for the complainant argued that the complainant applied for allotment of a residential plot in the scheme of the opposite parties and paid the earnest money i.e. Rs.4,12,500/- on 06.07.2015. Thereafter, being successful in draw of lots, she was issued LOI dated 15.02.2016, wherein she was allotted residential plot No.752, measuring 275 sq.yards at Aero City, Amritsar. She further paid a sum of Rs.7,01,250/- with the opposite parties; but no letter of allotment was issued by the opposite parties despite repeated requests of the complainant. Later, she was informed that the scheme has failed and she can get her refund. On 11.07.2017, the complainant applied for refund of the deposited amount, with interest but only the deposited amount was refunded and no interest was paid to the complainant. Even no reply to the legal notice sent by the complainant has been given which amounts to deficiency in service and unfair trade practice on the part of the opposite parties.

8.         Per contra, learned counsel for the opposite parties argued that the complainant is not a consumer; as defined in the Act. The complainant before issuing of Letter of Allotment applied for refund of the deposited amount which was refunded as per condition No.5 of the brochure, wherein it has been clearly mentioned that “No interest shall be paid to the applicant who are successful or are in the waiting list. Also, as per condition No.11 of the said letter, the possession of the plot was to be handed over after completion of development works at site or 18 months from the date of issuance of the allotment letter, whichever is earlier, whereas, the complainant before completing the said period, applied for refund of the deposited amount. There is no deficiency in service or unfair trade practice on the part of the opposite parties. There is no merit in the complaint, hence, the same be dismissed with costs.

9.         We have given our thoughtful considerations to the contentions raised by the learned counsel for the parties and have carefully gone through the record of the case.

10.       First of all, we would like to dispose of the preliminary objection raised by the opposite parties that the complainant does not fall within the definition of ‘consumer’ as she purchased the unit being an investor.  In this regard, it is relevant to mention that there is no evidence from the side of the opposite parties to prove that the complainant is indulging in sale purchase of property for commercial purposes and simple assertion in this regard in the reply of the opposite parties is not sufficient to prove this fact.  Hon’ble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainant or any one of them had booked the subject plot in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. In the instant case also, as already said above, there is no evidence led by the opposite parties to prove that the complainant indulged in sale purchase of properties and that they purchased the unit, in question, for further sale or for earning profits.  Accordingly, the above said objection/contention of the opposite parties are also rejected and the complainant is held to be ‘consumer’, under the Act.

11.       Admittedly, the complainant applied for allotment of a residential plot in Aero city situated in Amritsar at Ajnala Road as per brochure, Ex.C-1. Being successful in the draw of lots, the opposite parties issued a Letter of Intent, Ex.C-2 for plot No.752, measuring 275 sq. yards at the rate of 15,000/- per sq. yards i.e. the total cost of the plot was Rs.41,25,000/-. As per the payment schedule, the complainant paid 10% of the EMD amounting to Rs.4,12,500/- through RTGS on 06.07.2015 and also further paid 15% of the price of the plot, amounting to Rs.7,01,250/- including 2% cancer cess within one month of the date of issue of the LOI.  The balance 75% payment was to be paid either in lumpsum without any interest within 60 days from the issue of allotment letter or in six half yearly instalments with an interest at the rate of 12% per annum. First instalment shall become due after six months from the date of issue of allotment letter. Further, as per LOI, Ex.C-2, dated 15.02.2016, the possession of the said plot was to be handed over to the allottee after completion of development works at site or 18 months from the date of issuance of the allotment letter, whichever is earlier.  The complainant paid 25% of the total consideration amount as per terms and conditions of the brochure/ LOI.  The further payments were to be paid by the complainant only after issue of the allotment letter, which was not issued till the filing of the complaint as per evidence in the record. The complainant vide her letter dated 11.07.2017, Ex.C-5, requested the opposite parties to refund the paid amount with interest as the possession of the plot has not been handed over till date.

12.       Now the question is to decide whether the complainant is entitled to refund of the amount along with interest or not?  As per LOI; the possession of the plot was to be handed over after completion of the development works at site or 18 months from the date of issuance of the allotment letter whichever is earlier. No allotment letter was issued to the complainant and without waiting for the same, the complainant requested opposite parties to refund the deposited amount with interest, whereas, as per clause 5 in the brochure; it has been mentioned that no interest shall be paid to the applicant, who are successful or are in the waiting list. The complainant in her complaint averred that she was informed by the officials of the opposite parties that being failure of the scheme, she can apply for refund of amount deposited by her, whereas no document has been tendered by her in her evidence from where it could be proved that the scheme has failed and she was asked to get the refund. Therefore, in the instant case, the complainant on her own requested for refund of the amount without waiting for the allotment letter. As such, she is not entitled to the interest on the amount deposited by her towards the said plot.

13.       Sequel to the above, there is no merit in the complaint. Accordingly, the complaint filed by the complainant is hereby dismissed being devoid of merits.

14.       Arguments in the complaint were heard on 12.04.2019 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.

15.       The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                             (J.S.KLAR)

                                          PRESIDING JUDICIAL MEMBER   

 

                                            (RAJINDER KUMAR GOYAL)

                                                           MEMBER

April 23, 2019                                             

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