BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 314 of 2015
Date of Institution: 15.5.2015
Date of Decision: 04.08.2016
Mohan Lal Arora son of Sh. Ram Lal R/o 10, Maqbool Road, Amritsar
Complainant
Versus
Amritsar Improvement Trust, Ranjit Avenue, Amritsar through its Chairman
Opposite Party
Complaint under section 12 & 13 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant : Sh.Updip Singh, Advocate.
For the Opposite Party : Sh.Rajesh Bhatia,Advocate
Coram:
Sh.S.S.Panesar President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S.Panessar,President.
- Mohan Lal Arora complainant has filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that he purchased through an open bid one built up shop having No. 108, First Floor in Nehru Multi Storied Complex, Amritsar for a sum of Rs. 46,00,000/-. The said shop was purchased by the complainant for self employment and earning his livelihood. The said bid was made by the complainant for a sum of Rs. 46,00,000/- for a bid of shop had been confirmed by the opposite party vide its resolution No. 64 dated 28.4.2005. The opposite party intimated the complainant regarding the same vide memo No. AIT/SS/6398 dated 4.8.2005. It was announced by the opposite party that the complainant will make payment of the said amount in 10 installments of Rs. 4,58,850/- each which includes the basic amount and interest and these installments are to be paid half yearly. It was also promised that the present shopping complex is one of the most modern shopping complex in the city which was having ultra modern facilities which includes lifts, stair ways, bath rooms at every floor which is to be used by the shopkeeper and visitors . It was also promised that the cleanliness and proper maintenance of the building will be taken care by the opposite party and it will also take care of lightening of the passage and will depute guards for security purposes. On coming into the words of the opposite party, the complainant made bid for the shop No. 108, Nehru Shopping Complex Scheme and was the successful bidder. The complainant regularly paid five installments to the opposite party. Firstly the complainant paid Rs. 3,00,000/- on 11.4.2015 to the opposite party when the bid was made and another sum of Rs. 10,34,450/- was paid next day i.e. 12.4.2015 while five installments of Rs. 4,58,850/- each were paid on 28.2.2006, 2.9.2006, 28.6.2007, 29.8.2007 and 3.3.2008 respectively which were regularly paid by the complainant to the opposite party without default. Inspite of making payment regularly, opposite party did not make good any of the terms made by them at the time of selling the shops. The complainant time and again requested the opposite party vide different representations personally and written to built up working lifts, making arrangements for cleanliness of market, proving proper and clean passage and maintenance of building but inspite of repeated requests and representations , the opposite party did not accede to the genuine and legitimate request of the complainant resulting the market which was declared as most ultra modern market of the city become one of the worse market of the city till date. There is no provision of amenities , no clear stair base, no proper bathrooms , no maintenance was kept at all of the building. There is no lightening system or guard for security purpose resulting there a great loss was suffered by the complainant at the hands of the officials of the opposite party. The value of the shops did not increase and nobody wants any such market which is lacking basic amenities for which the opposite party is bound to provide. The complainant is regularly approaching the opposite party to provide these facilities at the earliest and to waive the interest amount which is unreasonable as it is the fault of the opposite party that they have not provided the basic amenities which compelled the complainant to suffer a lot . The complainant moved various representations to the opposite party which are dated 7.10.2008, 11.4.2009, 16.11.2009, 10.5.2010, 15.10.2009, 3.6.2011, 6.12.2011, 27.2.2012, 6.8.2012 diary No. 2481 and 4.6.2013 respectively but inspite of that the opposite party did not pay any heed to the genuine request of the complainant. Opposite party then served one letter having No. AIT/SS/6306 dated 4.12.2013 asking the complainant to make remaining payment, whereas the complainant is time and again requesting the opposite party for such a long period to provide the basic amenities to the complainant in the market and to waive the interest amount which is unreasonable and complainant is ready to make remaining payment to the opposite party but the opposite party did not listen the genuine request of the complainant. The complainant has sought for following reliefs vide instant complaint:-
- Opposite party be directed to provide all basic amenities in the market as assured by the opposite party and to waive the interest amount ;
- Opposite party be directed to pay a sum of Rs. 1,00,000/- as compensation for causing mental and physical harassment to the complainant;
- Opposite party be also directed to pay litigation expenses to the tune of Rs. 11000/-.
Hence, this complaint.
2. Upon notice, opposite party appeared and contested the complaint by filing written version taking certain preliminary objections therein inter alia that this Court has no jurisdiction to entertain the present complaint because the complainant himself admitted that he has purchased the abovesaid shop in an open bid ; that complainant himself admitted that shop is purchased for commercial purpose as well as for business purpose ; that present complaint is time barred, hence the same is not maintainable. On merits, it is admitted to the extent that complainant is the resident of given address but it is wrong and denied that complainant is consumer of the opposite party. Regarding price of the shop as well as interest and installments is a matter of record. As such the same is an admitted fact. It is pertinent to mention over here that complainant is a regular defaulter and he never bothered to deposit the due installments to the opposite party and the complainant has filed the present complaint just to overshadow the payment of his interest. So far as the concern about the facilities and amenities are concerned in Nehru Shopping Complex where the shop of the complainant is situated, all the amenities and facilities which are provided under law and agreement have already been provided and the opposite party being a trust of the Amritsar city is duty bound to provide amenities and facilities and if any other services towards the city of Amritsar and the opposite party is doing the best and benefit for the occupants of Nehru Shopping Complex regularly. The complaint being false and frivolous and is liable to be dismissed and the same may be dismissed accordingly.
3. In his bid to prove the case, Sh.Updip Singh,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, copy of allotment letter Ex.C-2, copy of letter dated 6.8.2012 Ex.C-3, copy of detail of payment Ex.C-4, copy of allotment letter Ex.C-5, copy of letter dated 7.10.2008 Ex.C-6, copies of letters dated 16.11.2009, 11.4.2009, 10.5.2010, 15.10.2010, 3.6.2011, 6.12.2011, 27.2.2012, 4.6.2013 Ex.C-7 to Ex.C-14, copy of order dated 17.10.2014 Ex.C-15 and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence Sh.Rajesh Bhatia,Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Sandeep Rishi, Chairman Ex.OP1, copy of letter dated 13.5.2015 Ex.OP2, copy of E tender notice Ex.OP3, copy of letter dated 22.7.2015 Ex.OP4 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted by Ld.counsel for both the parties.
6. On the basis of the evidence on record, ld.counsel for the complainant has vehemently contended that it is an admitted fact that complainant purchased one built up shop having No.108, First Floor in Nehru Multi Stories Complex , Amritsar for a sum of Rs. 46,00,000/-. The said shop was purchased by the complainant for self employment and earning his livelihood. The said bid made by the complainant for a sum of Rs. 46,00,000/- for purchasing the shop had been confirmed by the opposite party vide its resolution No. 64 dated 28.4.2005, copy whereof is Ex.C-5 on record. It was promised by the opposite party that complainant will make payment of the sale consideration in 10 installments of Rs. 4,58,850/- each which included the basic amount and interest . All these installments were to be paid half yearly. It was also promised that the shopping complex shall be one of the most modern shopping complex in the city having ultra modern facilities which included lifts, stair ways, bathrooms at every floor which shall be used by the shopkeepers and visitors. It was also promised that cleanliness and proper maintenance of the building will be taken care of by the opposite party besides lightening of the passage and deputation of guards for security purposes. On coming into the words of the opposite party, the complainant made the bid for the shop No. 108, Nehru Shopping Complex Scheme and was the successful bidder. The complainant regularly paid five installments to the opposite party . At the first instance, the complainant paid Rs. 3,00,000/- on 11.4.2005 to the opposite party when the bid was made and another sum of Rs. 10,34,450/- was paid on the next day i.e. 12.4.2005 and five installments of Rs. 4,58,850/- each were paid on 28.2.2006, 2.9.2006,28.6.2007, 29.8.2007 and 3.3.2008 respectively, copy of detail of payment is Ex.C-4 on record. Inspite of making payment(s) regularly, opposite party did not make good any of the terms entered into by them at the time of selling the shops The complainant time and again requested the opposite party vide different representations and personally to provide basic amenities as promised by the opposite party at the time of auction, but they have failed to accede to the genuine and legitimate request of the complainant . The complainant moved various representations to the opposite party which are dated 7.10.2008, 11.4.2009, 16.11.2009, 10.5.2010, 15.10.2009, 3.6.2011, 6.12.2011, 27.2.2012, 6.8.2012 diary No. 2481 and 4.6.2013, copies whereof are Ex. C-6 to Ex.C-14 on record, but to no effect. Rather opposite party served one letter bearing No. AIT/SS/6306 dated 4.12.2013, copy of the same accounts for Ex.C-2 asking the complainant to make remaining payment , whereas the complainant is time and again requested the opposite party for such a long period to provide the basic amenities to the complainant in the market and to waive the interest. But , however, opposite party has failed to listen to the genuine request of the complainant. The complainant has specifically pleaded in para 2 of the complaint that shop was purchased by the complainant for self employment and earning his livelihood. This contention is supported by affidavit of the complainant in evidence Ex.C-1. The same has never been controverted or rebutted by the opposite party. Had any cogent evidence in such a situation , it will have to be presumed that complainant is a consumer of opposite party.. Even if the plot was purchased in open auction for self employment and earning his livelihood, successful bidder will be covered under the definition of consumer under the Consumer Protection. Reliance in this connection has been placed upon Sanjay Kumar Joshi Vs. Municipal Board 2014(3) CPC 496 (SC) wherein it has been laid down that even if the plot was purchased in open auction for self employment and earning livelihood, the purchaser qualifies to be covered under definition of consumer under the Act ‘ibid’. Opposite party has tendered into evidence certain notices for the purpose of providing basic amenities in the market wherein the shop of the complainant is situated. It means and imply that they have admitted that basic amenities are under process of being provided. This also fortifies the case of the complainant for reaching the conclusion that the opposite party promised to provide requisite amenities at the time of the auction of the shop in dispute. Under these facts and circumstances , ld. Counsel for the complainant has vehemently contended that opposite parties are deficient in service because they have failed to provide even basic amenities to the complainant in shopping complex in dispute despite making strenuous efforts on the part of the complainant and therefore, complainant has made out a case for allowing the complaint in accordance with law.
7. However, from the pleadings of the complainant, it transpires that complainant has paid just five installments out of agreed installments numbering 10 for purchasing the shop in dispute . At present the complainant is defaulter to the tune of Rs. 54,37,373/- upto 30.3.2016. Not only that the complainant has admitted himself to be a defaulter, even the record produced by the opposite party also go do show that the complainant has been defaulter in paying the installments as well as the interest accruing thereon. Once, it is proved that the complainant is a defaulter and he has absolutely no right to sue the opposite party for providing any amenities as well as waiving off interest by maintaining the complaint under the Consumer Protection Act because he, who seeks equity must do equity. The complainant himself has not done any equity, therefore, he is estopped from seeking equity from the opposite party. Even though it may be presumed that the complainant is a consumer or being a successful bidder in open auction , he fell within the definition of consumer yet the complainant being defaulter has absolutely no right or authority to file or maintain the instant complaint. Instant complaint is without any merit and as such the same is ordered to be dismissed accordingly. . Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum (S.S.Panesar)
Dated : 4.08.2016 President
/R/ (Anoop Sharma) (Kulwant Kaur Bajwa)
Member Member
