DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.224 of 02-04-2014

Decided on 15-07-2014

Sanjeev Kumar Garg aged about 37-38 years S/o Diwan Chand Garg R/o #43, Type VI, Power Colony, Lehra Mohabbat-151111, District Bathinda.

........Complainant

Versus

Bathinda Development Authority, Bhagu Road, Bathinda, through its Chief Administrator/Estate Officer, Bathinda.

.......Opposite party

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

QUORUM

Smt.Vikramjit Kaur Soni, President.

Smt.Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.Rakesh Gupta, counsel for the complainant.

For Opposite party: Sh.N.P Singh, counsel for the opposite party.

ORDER

VIKRAMJIT KAUR SONI, PRESIDENT:-

1. The instant complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act'). The brief facts of the complaint are that the complainant purchased one plot No.108 measuring 500 sq.yds in BDA Enclave (Phase 4 & 5), Model Town, Bathinda, which was originally allotted to Sarjeet Kumar S/o Moluram by the opposite party vide allotment letter No.E.O/B.D.A/BTI 2044 dated 9.5.2011 issued by Estate Officer, BDA, Bathinda. Sarjeet Kumar deposited the amount of earnest/application money to the extent of 10% and first two installments payable on 9.12.2011 and 9.5.2012 respectively. The complainant purchased the abovesaid plot from the original allottee namely Sarjeet Kumar on the same terms and conditions and got transferred the said plot in his name from the opposite party vide letter dated 15.5.2012. Thereafter the complainant deposited the third installment of Rs.7,15,000/- which was payable on 9.11.2012. As per the payment schedule of the opposite party, there was a clause of rebate of 5% if the owner of the plot deposits the lump-sum outstanding principle amount. Accordingly, in order to get the rebate the complainant opted to deposit all the remaining 4 installments of Rs.5,50,000/- each payable on 9.5.2013, 9.11.2013, 9.5.2014 and 9.11.2014 respectively by calculating the amount of interest from 9.11.2012 to 17.12.2012 on the amount of Rs.5,50,000/- and by calculating the rebate of 5% on all 4 installments, he deposited the amount of Rs.21,50,000/- vide demand draft No.536730 dated 17.12.2012 drawn on State Bank of India. Due to miscalculation, the complainant deposited the amount of Rs.32,515/- in excess. The complainant approached the opposite party for the refund of the excess amount of Rs.32,515/-, but the opposite party refused to accede to his request and conveyed him that only an amount of Rs.5015/- has been deposited by him in excess that would be adjusted against 5% amount payable at the time of possession of the abovesaid plot. The complainant has already deposited the total cost of the plot in question to the tune of Rs.55 lacs with the opposite party. As per the terms and conditions of the allotment letter issued by the opposite party, 10% of the total price of the plot in question was to be deposited at the time of its allotment and 15% more of the allotment price was to be deposited within the stipulated period by the allottee. As per Condition No.15 of the allotment letter, it was agreed by the opposite party that the possession of the abovesaid plot shall be handed over to the allottee after the completion of the development work at the site within the period of one year and five months from the date of issuance of the letter of intent. In case due to any reason, Bathinda Development Authority would fail to deliver the possession of the plot within the stipulated period, the allottee shall have the right to withdraw from the scheme by moving an application to the Estate Officer. As per the allotment letter, it was specifically agreed by the opposite party that the possession of the abovesaid plot would be handed over to the allottee within the period of one year and five months and after going through the assurance of the opposite party regarding the completion of the development work within the stipulated period, the complainant has purchased the plot in question from the original allottee, for the residential purpose, but the speed of the development work is very slow and 30% of the total work has yet not been completed by the opposite party at the spot. The opposite party has collected crores of rupees and has not spent even 30% of the total amount for the development of Phase 4 & 5. The complainant and other allottees time and again visited the office of the opposite party and requested it to complete the development work and to deliver the possession of the plots, but to no effect. Hence the present complaint filed by the complainant to seek the directions of this Forum to the opposite party to complete the development work at the site at earliest; to handover him the possession of the plot in question at earliest; to refund the amount of Rs.32,515/- paid in excess alongwith interest from the date of deposit till realization and Rs.10 lacs as interest @ 18% per annum on the amount deposited by him besides cost and compensation.

2. The opposite party after appearing before this Forum has filed its written statement and pleaded that as per record Sarjeet Kumar S/o Moluram was originally allotted the plot No.108 measuring 500 sq.yds (Park Facing) at Urban Estate Phase 4 & 5 (BDA Enclave) Bathinda on the basis of the terms and conditions of letter of intent for the allotment vide letter No.2044 dated 9.5.2011. As per record the original allottee Sarjeet Kumar deposited the amount of Rs.5,50,000/- as 10% amount of the abovesaid plot with the application form, Rs.8,25,000/- as 15% amount of the plot after being successful in the draw of plots on 14.9.2011 and took extension of time to deposit the amount. The allottee Sarjeet Kumar also deposited the amount of Rs.17,83,500/- as installment, penal interest and transfer/processing fee on 10.5.2012 and Rs.6875/- as remaining processing fee for the transfer of the abovesaid plot in favour of the complainant on 12.5.2014. At that time the complainant submitted the affidavits and indemnity bonds to the opposite party for the transfer of the abovesaid plot in his favour. Thereafter the opposite party issued a letter No.961 dated 15.5.2012 to the complainant for the transfer of the letter of intent for allotment of plot No.108 in his favour. The complainant deposited the installments of Rs.7,15,000/- on 9.11.2012 and Rs.21,50,000/- on 17.12.2012 for the abovesaid plot, as per the letter of intent for allotment. The complainant has deposited the amount of Rs.5015/- only in excess and the same has been intimated to him vide letter No.7362 dated 5.8.2013. The remaining 5% amount of the abovesaid plot is still outstanding against the complainant. The opposite party has already intimated the complainant that the excess amount of Rs.5015/- would be adjusted in the remaining 5% amount of the plot in question. The opposite party has already issued the allotment letter No.3165 dated 11.4.2014 to the complainant and offered him the possession of the plot in question. The complainant has failed to join the necessary party to Sarjeet Kumar S/o Moluram, the original allottee. The opposite party reproduced Clause Nos.15 and 16 of letter of intent. The opposite party has issued the allotment letters to the other allottees of BDA Enclave and offered them the possession of their plots. The litigation regarding BDA Enclave IV & V was pending before the Hon'ble Supreme Court of India, New Delhi, so the allotments of plots could not be made earlier. At present all the development work has been completed and basic amenities are provided there.

3. The parties have led their evidence in support of their respective pleadings.

4. Arguments heard. The record alongwith written submissions submitted by the parties perused.

5. The submission of learned counsel of the complainant is that the complainant has purchased one plot No.108 measuring 500 sq.yds in BDA Enclave (Phase 4 & 5), Model Town, Bathinda, which was originally allotted to Sarjeet Kumar S/o Moluram by the opposite party vide allotment letter No.E.O/B.D.A/BTI 2044 dated 9.5.2011, Ex.C4. The abovesaid plot has been transferred in the name of the complainant on dated 15.5.2012 vide Ex.C3. Sarjeet Kumar deposited the amount of earnest/application money to the extent of 10% and paid first two installments payable on 9.12.2011 and 9.5.2012 respectively. The complainant deposited the third installment of Rs.7,15,000/- which was payable on 9.11.2012. There was a clause of rebate, in which 5% rebate be given to the consumers if the amount be paid in lump-sum i.e. outstanding principle amount. Accordingly, the complainant opted to deposit all the remaining 4 installments of Rs.5,50,000/- each payable on 9.5.2013, 9.11.2013, 9.5.2014 and 9.11.2014 respectively by calculating the amount of interest from 9.11.2012 to 17.12.2012 on the amount of Rs.5,50,000/- and by calculating the rebate of 5% on all 4 installments, in this way he deposited the amount of Rs.21,50,000/- vide demand draft No.536730 dated 17.12.2012 drawn on State Bank of India. Due to miscalculation, the complainant deposited the amount of Rs.32,515/- in excess, whereas the opposite party conveyed him that only an amount of Rs.5015/- has been deposited by him in excess that would be adjusted against 5% amount payable at the time of possession of the abovesaid plot. As per the terms and conditions of the allotment letter issued by the opposite party, 10% of the total price of the plot in question was to be deposited at the time of its allotment and 15% more of the allotment price was to be deposited within the stipulated period by the allottee. The complainant has given the reference of Condition No.15 of the allotment letter, according to which the possession of the abovesaid plot shall be handed over to the allottee after the completion of the development work at the site within the period of one year and five months from the date of issuance of the letter of intent. In case Bathinda Development Authority would fail to deliver the possession of the plot within the stipulated period, the allottee shall have the right to withdraw from the scheme by moving an application to the Estate Officer. The opposite party has failed to fulfill the Condition No.15, as the speed of the development work is very slow and 30% of the total work has yet not been completed by the opposite party at the spot. The opposite party has collected crores of rupees and has not spent even 30% of the total amount for the development of Phase 4 & 5.

6. On the other hand the submission of the opposite party is that the original allottee Sarjeet Kumar deposited the amount of Rs.5,50,000/- as 10% amount of the abovesaid plot with the application form, Rs.8,25,000/- as 15% amount of the plot after being successful in the draw of plots on 14.9.2011 and further deposited the amount of Rs.17,83,500/- as installment, penal interest and transfer/processing fee on 10.5.2012 and Rs.6875/- as remaining processing fee for the transfer of the abovesaid plot in favour of the complainant on 12.5.2014. The opposite party issued a letter No.961 dated 15.5.2012 to the complainant for the transfer of the letter of intent for allotment of plot No.108 in his favour. The complainant deposited the installments of Rs.7,15,000/- on 9.11.2012 and Rs.21,50,000/- on 17.12.2012 for the abovesaid plot, as per the letter of intent for allotment. The complainant has deposited the amount of Rs.5015/- only in excess and the same has been intimated to him vide letter No.7362 dated 5.8.2013. The remaining 5% amount of the abovesaid plot is still outstanding against the complainant. The opposite party has already intimated the complainant that the excess amount of Rs.5015/- would be adjusted in the remaining 5% amount of the plot in question. The opposite party has already issued the allotment letter No.3165 dated 11.4.2014 to the complainant and offered him the possession of the plot in question. At present all the development work has been completed and basic amenities are provided there.

7. The complainant in Para No.10 of his complaint has prayed for following reliefs:-

1) To complete the development work at the site at earliest;

2) To handover him the possession of the plot in question at earliest;

3) To refund the amount of Rs.32,515/- paid in excess alongwith interest from the date of deposit till realization;

4) To make the payment of Rs.10 lacs on account of interest @ 18% per annum from the date of respective deposits, due to delay possession.

Regarding the first prayer of the complainant that to complete the development work at the site at earliest, the opposite party has specifically mentioned in its written statement that 99% work has been completed, this relief has been sought by the complainant on the basis of Condition No.15 mentioned in the letter of intent vide Ex.C4. The Condition No.15 is reproduced hereunder:-

“The possession of the said plot shall be handed over to the allottee after completion of development works at the site within the period of 1.5 years from the date of issuance of this letter of intent. In case for any reason, B.D.A is unable to deliver the possession of plot within this stipulated period, the allottee will have a right to withdraw from the scheme by moving an application to the Estate Officer and in such case B.D.A shall refund the entire amount deposited by the applicant alongwith 10% simple interest. Apart from this, there shall be no other liability of the Authority.”

In rebuttal to the above mentioned condition, the opposite party has referred to Condition No.16 of the allotment letter. As per Condition No.16 of the allotment letter:-

“16) In case B.D.A is unable to give the possession of the plot due to any reason, the allocation of the plot shall be cancelled and B.D.A shall refund the entire amount deposited by allottee alongwith a simple interest @ 10% p.a. Apart from this, there shall be no other liability of the Authority.”

Regarding the development work the complainant has sought the information under RTI and in reply to the said application of RTI, the opposite party has given the reply to Serial No.1 vide Ex.C20, in which it has been mentioned that after the completion of development work the allotment and possession of the plots be given to the consumers. Regarding the development work nothing has been placed on file by the opposite party to prove that the development work has already been completed or it is in progress. As per Chapter XII Town Development Schemes, Clause 91.1(2):-(i) Drainage inclusive of sewerage, surface or sub-soil and sewage disposal (j) lighting (k) Water supply. The opposite party has placed nothing on file to prove that Clause No.91.2(i)(j)(k) has been complied with till date. In his affidavit, Ex.OP1/1, Satnam Singh Bhangu, Estate Officer of BDA has deposed that as per policy of PUDA, a rebate has been given to the complainant on deposit of lump-sum amount. The complainant has deposited Rs.5015/- only in excess and the same was intimated to him vide letter No.7362 dated 5.8.2013. The complainant is bound by the terms and conditions of the said letter of intent for allotment of plot as well as terms and conditions of the allotment letter. The remaining amount of Rs.4950/- of said plot is still due against him. The opposite party/BDA has already intimated the complainant that excess amount of Rs.5015/- will be adjusted in the remaining 5% amount of the plot. The opposite party has already issued the allotment letter No.3165 dated 11.4.2014 to the complainant and offered him the possession of the plot'. From the said affidavit it is clear that the amount Rs.4950/- of the total cost of the abovesaid plot is still outstanding against the complainant. The complainant has already paid the amount in excess, which is to be adjusted in the remaining amount of 5%. The opposite party was well within the knowledge that the complainant has deposited the amount in excess, it should have adjusted the amount of Rs.4950/-, which has been shown to be balance towards the complainant, but no such efforts have been done by the opposite party, which amounts to deficiency in its part.

8. Therefore in view of what has been discussed above regarding the first contention of the complainant that the development work has not been completed yet, the opposite party has placed nothing on file to prove that to what extent the development work has been done in Phase 4 & 5, where the plot of the complainant is situated, whereas the opposite party committed to complete the development work within 1.5 years from the date of issuance of the letter of intent. Regarding the other contention of the complainant that he has paid the excess amount to the opposite party due to miscalculation, but the discrepancy is in the amount, as per the complainant, he has paid the excess amount of Rs.32,515/- and as per the opposite party, the complainant has paid the amount of Rs.5015/- in excess, but no calculation has been produced by them to show that how this amount has been calculated either by the opposite party or by the complainant himself. No doubt as admitted by the opposite party, the amount of Rs.5015/- is lying deposited in excess with it, hence as per affidavit, Ex.OP1/1, only the amount of Rs.4950/- is outstanding towards the complainant. As per Condition Nos.15 and 16 of the letter of intent, the possession of the abovesaid plot shall be handed over to the allottee after the completion of the development work at the site within the period of one year and five months from the date of issuance of the letter of intent. In case, the opposite party is unable to deliver the possession of the plot within the stipulated period, the allottee can withdraw from the scheme by moving an application to the Estate Officer and can seek the refund @ 10% on simple interest, whereas the period of one year and five months has already lapsed. The complainant has filed the present complaint on 2.4.2014 that has been decided on 15.7.2014, the period of 3 months has already been lapsed. During this period the opposite party has not placed on file even a single document to prove that the development work has been completely done, thus this proves the version of the complainant that the development work has not been completed by the opposite party, hence the opposite party has violated its own terms and conditions. The complainant has purchased the abovesaid plot for the residential purpose, but he is unable to construct it due to non-development of the area and not handing over the plot in question to him.

9. The BDA was under the obligation to complete the development work within the stipulated period, but it has failed to do so. Hence it would meet the ends of justice if some interest be imposed on the opposite party that is to be paid on the amount deposited by the complainant. The support can be sought by the law laid down by the Hon'ble Supreme Court of India in case titled as Haryana State Agricultural Marketing Board Vs. Bishamber Dayal Goyal & Ors., II (2014) CPJ 11 (SC), wherein the Hon'ble Supreme Court of India has held:-

“(ii) Consumer Protection Act, 1986-Sections 2(1)(g), 14(1)(d), 23-Housing-Allotment of plots-Amenities not provided-Non-payment of installments-Penalty imposed-Deficiency in service-District Forum allowed complaint-State Commission dismissed appeal-National Commission dismissed revision-Hence appeal-Appellant-Board as service provider is obligated to facilitate the utilization and enjoyment of plots as intended by allottees and set out in allotment letter-Inaction on part of appellant in providing requisite facilities for more than a decade establishes deficiency in service-However, allottees cannot postpone payment of installments on grounds that some of the amenities were not provided-There is need for proportionate relief as the levy of penal interest and other charges on allottees will be grossly unfair-Adequate relief granted even to complainants by awarding interest @ 12% p.a. on entire deposited amount.”

10. Thus keeping in view the facts, circumstances and evidence placed on file we are of the considered opinion that there is deficiency in service on the part of the opposite party. Hence this complaint is accepted with Rs.15,000/- as cost and compensation against the opposite party. The opposite party is directed to pay the interest @12% per annum on the total amount since institution of this complaint till completion of the development work in the area and till handing over the possession of the plot in question to complainant. The opposite party is further directed to refund the excess amount deposited by the complainant, to the complainant with interest @ 9% per annum till realization after deducting the outstanding amount and to furnish the complete detail/calculation of the amount deposited by the original allottee and the complainant showing the excess amount deposited by the complainant and its adjustments. The opposite party is further directed to handover the possession of the plot to the complainant within 30 days from the date of receipt of the copy of this order.

11. The compliance of this order as whole be done within 45 days from the date of receipt of the copy of this order.

12. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

15-07-2014

(Vikramjit Kaur Soni)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member