DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 435 of 18-07-2014

Decided on 29-07-2015

Davinder Kumar aged about 37 years S/o Shri Ranjit Singh, R/o Village Tatka, P.O. Bodla, Tehsil Thanesar, District Kurukshetra.

…...Complainant

Versus

1. Bathinda Development Authority through its Administrator, Model Town, Phase-I, Opposite Gurudwara, Bathinda.

2. Estate Officer, Bathinda Development Authority, Model Town, Phase-I, Opposite Gurudwara, Bathinda.

3. State Bank of Patiala, Sector-9, Ambala City, through its Branch Manager

    

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh. Pahwa, President

Smt. Sukhwinder Kaur, Member

Sh. Jarnail Singh, Member

Present :

For the Complainant : Sh. Sukhmander Singh, counsel for complainant

For the opposite parties : Sh. N.P. Singh, counsel for OPs No. 1 & 2.

Sh. Jai Gopal Goyal, counsel for OP No. 3.

O R D E R

M. P. Singh Pahwa, President

1. Complainant Davinder Kumar has filed this complaint under Section 12 of the consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Bathinda Development Authority and others (here-in-after referred to as 'opposite parties).

2. Briefly stated, the case of the complainant is that opposite parties invited applications for allotment of plots at Sugar Mill site, Faridkot, vide publication in the daily newspaper. It was informed that application could be made through State Bank of Patiala, Sector 9, Ambala City i.e. opposite party No. 3, being the agent and associates of opposite parties No. 1 & 2. Consequent to the advertisement, the complainant opted to apply for allotment of 200 Sq. Yds plot at the said site of Sugar Mill, Faridkot for a total consideration of Rs. 18.00 Lacs i.e. 9,000/- per Sq. Yds. Since the opposite parties No. 1 & 2 had approved for the allotment and seeking of financial assistance through opposite party No. 3 for the payment of 10% of the consideration amount, requisite for allotment of plot, the complainant approached opposite party No. 3 for the purpose of applying for allotment of plot of 200 Sq. Yds to him. The application form and other requisite documents were duly filled in by the staff of opposite party No. 3 who had been acting as an agent/associate of opposite parties No. 1 & 2. The complainant had bonafidely signed the said application form on 28-6-2013. He was intimated by the officials of opposite party No. 3 that due intimation about the result of allotment with respect to the plot applied will be given to him at the address mentioned aforesaid. An acknowledgement dated 28-6-2013 had also been issued to the complainant by the opposite parties.

3. It is pleaded that complainant had bonafidely waited for the draw of plots and consequent intimation with respect to the allotment of plot to him. However, complainant had not received any intimation from the end of opposite parties, despite their part of obligation. Thereafter on first of April, 2014, the complainant had telephonically contacted opposite party No. 3 about the fate of allotment of the said plot, but they failed to provide any detail in this context. The complainant sent his relative to check the site, who further visited the site and to the shock of complainant, there was no development work at the site of allotment of plots and even the plant and machinery of the Sugar Mill as well as the building is in existence. There is no scope of any development of the colony at the site. Consequently, the complainant moved an application dated 2-4-2014 to opposite parties No. 1 & 2 requesting them to refund 10% amount i.e. Rs. 1,80,000/- as there was no development scheme in force at the site. However, to the dismay and surprise of the complainant, the opposite parties vide order dated 10-06-2014 have rejected the application of the complainant and forfeited 10% amount i.e. 1,80,000/- deposited on behalf of the complainant by alleging that the plot was allotted and by virtue of the terms and condition of the alleged letter of intent, which was never served on complainant, the amount has been forfeited.

4. It is alleged that said order dated 10-06-2014 is null, void and nonest and has no binding effect on the rights of the complainant on the following grounds :

   i) That letter of intent had never been served upon the complainant by the opposite parties No. 1 & 2 till date. They cannot unilaterally impose any such alleged condition upon the complainant without giving any intimation about the allotment of plot and further seeking the option for retention/cancellation of plot. Hence, the terms and conditions of the alleged letter of intent have no binding effect on the rights of the complainant.

   ii) That besides prejudice to aforesaid, it is submitted that letter of intent was merely an offer by opposite parties No. 1 & 2 to continue or discontinue with the process of allotment of the plot so applied by the complainant. The opposite parties cannot unilaterally impose their terms upon the complainant without any opportunity to him to accept or reject the said offer. This act of the opposite parties No. 1 & 2 is contrary to the statutory provisions as well as principles of natural justice.

5. The complainant has further pleaded that opposite parties have illegally withheld the amount of Rs. 1,80,000/- and opposite party No. 3 is illegally penalizing the complainant with interest on the said amount. The complainant is suffering double jeopardy whereby he is being deprived of the amount of Rs. 1,80,000/- deposited to opposite parties No. 1 & 2 and on the other hand is being penalized by opposite party No. 3 who is their agent. The complainant has suffered mental tension, agony and harassment at the hands of the opposite parties owing to their malafide conduct. As such, there is deficiency in service on the part of the opposite parties. They have also indulged in unfair trade practice. Thus, the complainant is entitled to compensation of Rs. 50,000/- besides the refund of deposited amount. Hence, this complaint seeking following directions to the opposite parties :-

   i) To refund Rs. 1,80,000/- alongwith interest @ 18% p.a. from the date of deposit till realization, to the complainant;

1. ii) To withdraw the interest being imposed on the amount of Rs. 1,80,000/- being charged by opposite party No. 3;

   iii) To pay a sum of Rs. 50,000/- as compensation on account of mental tension, harassment and botheration etc., suffered by the complainant;

   iv) Cost of the present complaint;

   v) Any other additional or alternative relief.

4. Notices of complaint was served upon the opposite parties. They appeared through their respective counsel and contested the complaint by filing written version. The opposite parties No. 1 & 2 in their joint written version raised legal objections that complainant is not consumer as defined u/s 2 of the 'Act'; Complainant has no cause of action to file the present complaint; complainant has locus standi ; complaint is not maintainable. That as per terms and conditions of the brochure, in case of any dispute , the matter shall be decided by Sole Arbitrator i.e. Chief Administrator PUDA, so this Forum has no jurisdiction to adjudicate the complaint. That the complaint is bad for non-joinder and mis-joinder of necessary party; complainant has not come to this Forum with clean hands and has concealed the true and material facts from this Forum. The complainant has violated the terms and conditions of the brochure as well as letter of intent. As per terms and conditions of the letter of intent, the complainant has failed to deposit payment of 15% amount i.e. Rs. 2,70,000/- within prescribed stipulated period nor he sent any request for his acceptance or refusal in writing within 30 days from the issuance of letter of intent, so his entire earnest money has been forfeited as per law. That complaint involves intricate questions of law and facts which cannot be decided in summary proceedings by this Forum, as such complaint is liable to be dismissed. That complainant is estopped to file the complaint by his act, conduct and acquiescence and complainant has filed a false, frivolous and vexatious complaint, so he be ordered to pay Rs. 50,000/- as penalty u/s 26 of the 'Act'.

5. On merits also, it is pleaded that PUDA has invited applications for allotment of 428 free hold residential plots at PUDA Enclave (Sugar Mill Site) Faridkot, on the basis of the terms and conditions of the scheme stated in the brochure. As per scheme, various banks including State Bank of Patiala, Sector 9, Ambala, were authorized by answering opposite parties for sale and collection of application forms. The complainant had applied for a plot of 200 Sq. Yds in the said scheme as per terms and conditions of the brochure. He had applied for a plot of 200 Sq. Yds in the said scheme after well understanding the terms and conditions of the brochure through opposite party No. 3. The draw of lots was conducted on 30-08-2013 and published on notice board as well as on the website of PUDA. The letter of intent for allotment of residential plot was also sent to all the successful allotees as per said scheme. The opposite parties also sent a letter of intent for allotment of residential plot to the complainant vide letter No. 10472 dated 24-12-2013 and also on 3-2-2014.

6. It is further alleged that complainant has violated the terms and conditions of said letter of intent. He has failed to deposit payment of 15% amount i.e. 2,70,000/- within prescribed stipulated period nor he sent any request for his acceptance or refusal in writing within 30 days from the issuance of letter of intent as per terms and conditions of the letter of intent No. 10472 dated 24-12-2013. Later, on 7-4-2014, after expiry of 7 months, the complainant requested for cancellation of his allotment due to his domestic reasons.

7. It is asserted that complainant is bound by the terms and conditions of the said letter of intent for allotment of plot, so allotment of plot was cancelled and his earnest money of Rs. 1,80,000/- was forfeited vide office order No. 4616-21 dated 10-6-2014. It is averred that order is legal, valid and also as per terms and conditions of said letter of intent and law. After controverting all the averments, opposite parties No. 1 & 2 prayed for dismissal of complaint.

8. Opposite party No. 3 in its separate written version, also raised legal objections regarding maintainability of complaint; involvement of intricate questions of facts; locus standi and estoppel of complainant from filing the complaint. It is also alleged that complainant does not fall within the definition of consumer and complaint is false, frivolous and vexatious.

9. On merits also, opposite party No. 3 supported the stand of opposite parties No. 1 & 2. However, it is admitted that complainant availed financial assistance from opposite party No. 3. It is denied that opposite party No. 3 is agent of opposite parties No. 1 & 2 . It is also asserted that complainant signed all the documents of application form etc., after filling, reading and understanding the same to be true and correct. It is asserted that this opposite party is well within its rights to recover the amounts so advanced to the complainant together with its interest and expenses thereon from the person and property of the complainant. The complainant has filed the present complaint to avoid the payment of financial assistance availed by him. It is also asserted that there is no deficiency in service on the part of the opposite party. In the end, the opposite party No. 2 also prayed for dismissal of complaint.

10. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavits of Davinder Kumar dated 18-7-15 and 16-1-15 (Ex. C-1 and Ex. C-4 respectively), photocopy of payment receipt (Ex. C-2) and photocopy of office order (Ex. C-3).

11. In order to rebut this evidence, opposite parties No. 1 & 2 have tendered into evidence affidavit of Charu Mita, PCS, photocopy of application form (Ex. OP-2), photocopy of despatch register (Ex. OP-1/3), photocopy of postal receipt (OP-1/4), photocopy of despatch register (Ex. OP-1/5), photocopy of postal receipt (Ex. OP-1/6), photocopy of letter of intent dated 24-12-2013 (Ex. OP-1/7), photocopy of letter of intent No. 670 (Ex. OP-1/8), photocopy of application dated 7-4-14 (Ex. OP-1/9) and photocopy of letter dated 26-6-14 (Ex. OP-1/10).

12. Opposite party No. 3 tendered into evidence affidavit of Pawan Gupta dated 22-6-15 (Ex. OP-3/1). The complainant also submitted written arguments.

13. We have heard learned counsel for the parties and gone through the record and written submissions of the complainant.

14. It is submitted by the learned counsel for the complainant that opposite parties were required to prove despatch of letter of intent to complainant only then the complainant was bound by the terms and conditions contained in the letter of intent. The only evidence brought on record by the opposite parties is the postal receipts Ex. OP-1/4 & Ex. OP-1/6. These documents prove despatch by U.P.C. Only. Therefore, no authenticity can be attached to such type of receipts. The despatch of letter cannot be assumed on these receipts. When the opposite parties have failed to prove despatch of letter of intent, they were having no justification to forfeit the money deposited by the complainant.

15. It is also submitted by the learned counsel for the complainant that opposite parties have produced on record one letter Ex. OP-1/9. Of course the date of letter is mentioned as 20-3-2014 but the letter was received in the office of opposite parties on 7-4-14. Moreover, from this letter it cannot be concluded that complainant has received the letter of intent. The complainant can come to know about his allotment from other sources also. As such, this letter cannot be accepted as receipt of letter of intent. When the opposite parties have failed to prove despatch of letter of intent to the complainant and receipt of letter of intent by the complainant, the order forfeiting earnest money is not justified. Therefore, complainant is entitled to refund of earnest money deposited by him alongwith compensation and cost of litigation.

16. To tide over the submissions, learned counsel for the opposite parties have submitted that complainant has not brought true facts before this Forum. Copy of application Ex. OP-1/2 proves that complainant certified that he had carefully gone through and understood the terms and conditions of the scheme applied for as contained in the brochure and he had undertaken to abide by these conditions. The complainant was also issued letter of intent, copy of which is proved as OP-1/8. This letter was addressed to the complainant at his given address. Copy of despatch register coupled with UPC proves the despatch of letter of intent to the complainant. The other evidence on record will also prove that complainant has received letter of intent.

17. It is pointed out by learned counsel for the opposite parties that complainant has stated that he bonafidely waited for the draw of plots and consequent intimation with respect to the allotment. In next para, he has stated that on first of April, 2014, he had telephonically contacted opposite party No. 3 about the fate of allotment of the said plot, but they have failed to provide any detail in this context. Therefore, if this averment of the complainant is accepted, he was ignorant till 1^st April, 2014 regarding his application of allotment, but the complainant has moved another application Ex. OP-1/9 whereby he has claimed refund of the earnest money. In this letter, the complainant has admitted that on his application, he has been allotted 200 Sq. Yds plot but due to domestic reason, he did not want to take this plot. This letter was got typed on 20-3-2014 although received in the office of opposite parties on 7-4-2014. This letter proves that complainant was aware about the fate of his application and allotment of plot on 20-3-2014. As such, the entire version of the complainant that he was not informed regarding fate of his application is not believable. In such circumstances, the version of the opposite parties is to be accepted that complainant was despatched letter of intent under postal certificate.

18. As per condition No. 29 of letter of intent, the complainant was to exercise his option within 30 days from the date of issue of letter of intent, otherwise his entire money deposited was to stand forfeited. The complainant has undertaken to abide by the terms and conditions of letter of intent, as such, there is no illegality in the order for forfeiting the earnest money.

19. We have carefully gone through the record, written submissions of complainant and have considered the rival contentions.

20. The admitted facts are that complainant submitted application for allotment of plot and he was allotted plot of 200 Sq. Yds. Consequently, the complainant was made aware about the allotment. The opposite parties have brought on record copy of letter of intent Ex. OP-1/8 addressed to the complainant at his given address. The opposite parties have also placed on record copy of despatch register and copy of U.P.C to prove that this letter was actually despatched to the complainant.

21. Of course the complainant has not admitted the receipt of letter of intent, but the other evidence on record prove that complainant was in the knowledge of allotment. In the complaint as well as in the affidavit Ex. OP-1/1, the complainant has pleaded that he bonafidely waited for the draw of plot and consequent intimation with respect to the allotment of plot. He has further deposed that on the first week of April, 2014, he had telephonically contacted opposite party No. 3 about the fate of allotment of the said plot, but they failed to provide any detail in this context. Therefore, if this version of the complainant is accepted complainant was not aware about the fate of his application till first of April, 2014, but the opposite parties have placed on record application moved by the complainant on 20-3-2014 (although received in the office on 7-4-2014). In this application, the complainant has mentioned that during draw he has been allotted plot of 200 Sq. Yds and due to domestic reasons, he is not willing to take this plot. As such, he wanted cancellation of allotment. Therefore, complainant was aware of the allotment of plot on 20-03-2014. This plea corroborate the version of the opposite parties that complainant was aware of the despatch of letter of intent.

22. As per condition No. 29 of letter of intent Ex. OP-1/8, the refusal was to be received in writing from the date of issuance of letter of intent and in that situation 10% amount of earnest money was to stand forfeited. In the event refusal is received after a period of 30 days from the date of issuance of letter of intent, entire earnest money was to stand forfeited. In the case in hand, letter of intent was issued to complainant on 24-12-2013. The complainant was required to exercise option within 30 days. The complainant moved application on 20-03-2014 i.e. after expiry of 30 days. As per condition No. 29 of letter of intent, the entire earnest money was to stand forfeited.

23. The complainant has impugned letter/order dated 10-06-2014 (Ex. C-3). As per this order also, the earnest money has been forfeited in view of condition No. 29 of letter of intent. When the complainant has undertaken to abide by the terms and conditions contained in the letter of intent, no illegality is found in the order dated 10-06-2014.

24. In view of what has been discussed above, this complaint fails and is hereby dismissed with no order as to costs.

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

26. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    29-07-2015

    (M.P.Singh Pahwa )

    President

     

     

    (Sukhwinder Kaur)

    Member

     

     

    (Jarnail Singh )

    Member