| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 197 of 01-08-2019 Decided on : 19-05-2022 Pankaj Verma aged about 39 years S/o Sh. C P Verma R/o House No. 753, Sector 14, Tehsil & Distt. Hisar. ........Complainant Versus Estate Officer, Bathinda Development Authority/PUDA. B.D.A Complex, Bhagu Road, Bathinda. Chief Administrator, Bathinda Development Authority/PUDA BDA Complex, Bhagu Road, Bathinda.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Satwir Singh, Advocate. For opposite parties : Sh. Rajdeep Goel, Advocate. ORDER Kanwar Sandeep Singh, President The complainant Pankaj Verma (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Estate Officer, Bathinda Development Authority, Bathinda and another (here-in-after referred to as opposite parties). Briefly stated the case of the complainant is that in the year 2013, opposite party No. 1 invited applications for allotment of plots at its scheme Category General at Sugar Mill, Budhlada. The opposite parties in their brochure had offered residential plots which included walled community living, earthquake resistant structure, convenient shopping community centre/clubhouse, ample covered parking space, fair safety, eco-friendly rain water harvesting, land escaped lush green lawns, surface parking for visitors as per BDA rules and regulations. The brochure further stipulated that a water supply, drainage, Sewerage Street lighting, sanitary, garbage collection roads and other civil services will also be provided to the plot owners. It was further mentioned in the intent/allotment letter No. 2080 dated 26-02-2013 at Serial No. 12/4 (1) that possession of plot shall be handed over to the allottee after completion of development work within a period of 18 months from the date of issuance of this letter of intent. Intent letter No. 2080 was issued in the name of Rahul Kumar Gautum. Complainant is second allottee vide letter No. 8180 dated 5-9-2013 of this said plot. Complainant paid full and final payment to the opposite parties It is alleged that complainant relying upon the representation made by the opposite parties in their allotment letter had through draw the allotment of 150 Sq. Yds plot No. 491 and deposited the requisite amount. The Intent letter of the said scheme provided mode of payment of the remaining amount of 75% as below :-
a) Schedule/Mode of payment b) A sum of Rs. 1,35000, being 15 % of total price of plot shall be payable within30 days from the date of issue of this letter of intent. C. Option-A That the allotment letter of the said scheme provided mode of payment of the remaining amount of 75%, as below : "Schedule/Mode of payment : Payment of 2,25,000/- made, has already been adjusted towards initial 25% price of the said plot. Balance 75% of the total price of the plot to be deposited in half yearly installments along with interest 12% p.a. and with rebate schedule The complainant paid the balance 75% of the amount but the opposite parties failed to complete the development of the Phase/site and to deliver possession of same alongwith above mentioned amenities within the stipulated period. In the meantime, complainant also written a letter to the opposite parties for delay in providing basic amenities and delay in possession and development of site, but no reply was received from the opposite parties. The complainant visited spot and found that there was no development work at site and no provision for water supply, drainage, sewerage street lighting, sanitary, garbage collection, roads and other basic civil amenities at the spot. Moreover, there was no provision for electricity, fire fighting and other amenities which were necessary for taking possession and residing in plots.
It is mentioned that possession of plot was not handed over to the complainant till due date mentioned in the allotment letter. The opposite parties have breached the conditions of allotment and regulation which were mentioned in the allotment letter. Due to this reason, complainant wrote letter to Estate Officer, PUDA to refund the entire amount with interest. The complainant deposited approximately total amount of Rs. 9,70,000/- with the opposite parties. The complainant opted to pay remaining amount of the plot in 6 equal half yearly installments with interest. It was provided in the said scheme that paid first initial 25% and after handing over of the possession of the plot after 18 months, the remaining installments were to be paid along with 12% interest on reducing basis. The complainant regularly paid the installments with interest, but the opposite parties failed to complete the development of the Phase/Site and to deliver the possession of the same along with amenities within the stipulated period of one and half year. It is also alleged that since the possession of the plot was not handed over to the complainant till due date as mentioned in the allotment letter, the opposite parties have breached conditions of allotment and regulation, which were mentioned in the Allotment letter and which was issued by the respondent. On 29.3.2019 the complainant wrote a letter to the Estate officer PUDA, for cancellation of residential plot no 491, now changed to 247 and to refund the entire amount approx. Rs. 9,70,000/- with interest. Complainant received a letter no. 2498 dated 24.4.2019 from the opposite parties. It is alleged that charging of interest and penalty without delivering possession of plot alongwith committed and essential amenities, amounts to unfair trade practice and misusing monopolized and dominating position of the opposite parties. It also amounts to deficiency in service on the part of the opposite parties as they failed to deliver possession of plot within stipulated period. The opposite parties are not entitled to get any amount on account of penalty and interest until and unless the possession of plot is handed over by them to complainant. The complainant is rather entitled to interest on the amount withheld by the opposite parties. On this backdrop of facts, the complainant has pleaded that he has suffered huge financial loss as he could not make use of plot from 2014 till date. He is continuously suffering loss as the opposite parties have not yet handed over possession of plot to complainant. The complainant has prayed for directions to the opposite parties to refund the whole amount deposited by him alongwith interest and pay Rs. 15,000/- as cost of litigation in addition to any other additional alternative and consequential relief. Upon notice, opposite parties put an appearance through counsel and contested the complaint by filing joint written reply raising legal objections that the complainant has no locus standi or cause of action to file the complaint. That the complaint is not maintainable. That the complainant is estopped from filing the present complaint by his own act and conduct, admissions, omissions, acquiescence, negligence and waiver and the complainant application under Section 22 (c) of Legal Services Authority Act, 1987 before Permanent Lok Adaalat and the same has been dismissed as withdrawn by complainant on 15-7-2019. That this Commission has got no jurisdiction to try and decide the present complaint. The complainant has not availed the efficacious remedy available with him under the provisions of Punjab Urban Development Act & Rules. That the complainant has not come to this Commission with clean hands rather he has intentionally concealed the true and material facts.That the complaint is not filed within the period of limitation and the same is hopelessly time barred. That the complaint involves intricate questions of law and facts. which cannot be decided in summary proceedings and that the complaint is totally false, frivolous and vexatious to the knowledge of the complainant. On merits, it has been pleaded that complainant has not applied for any plot in the said scheme namely PUDA Enclave Budhlada. The contents mentioned in the brochure of scheme namely PUDA Enclave Budhlada and terms and conditions mentioned in letter of intent for allotment dated 26-2-2013 were admitted by the opposite parties, which was issued to allottee Rahul Kumar Gautam. It has also been pleaded that Rahul Kumar Gautum had applied for a plot of 150 Sq. yards at PUDA Enclave, Budhlada and he was allotted a plot on the basis of terms and conditions of letter of intent for allotment No. 2080 dated 26-2-2013 at tentative price of 9,00,000/- calculated @ Rs.6,000/- per Sq. yard. The complainant purchased the said plot from real allottee Rahul Kumar Gautam and paid the entire amount of plot but he has failed to come forward for execution of conveyance deed of plot. The complainant is bound by the terms and conditions of the allotment letter. The plot was allotted to the complainant on the basis of terms and conditions of the said allotment letter No. 7512 dated 20.10.2016. It has been further pleaded that in fact, all the basic amenities i.e. water supply, drainage, roads, electricity etc. are already provided there. The opposite parties denied that no development at the said site has been done. All the development work has already been completed by the opposite parties. The complainant has deposited entire amount of the plot. The opposite parties have also delivered possession of the plot to all the allotees including complainant. The opposite parties have also sent letter No. 901 sated 8-2-2018 to complainant for taking possession in continuation to letter No. 7512 dated 20-10-2016. The opposite parties admitted that complainant applied for cancellation of his allotment and requested for refund of money on 4-4-2019, but at this stage, on the request of the allottee, cancellation cannot be effective and he can execute conveyance deed in his favour. After controverting all other averments of the complainant, the opposite parties prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit (Ex. C-1) and the documents (Ex. C-2 to Ex. C-6). In order to rebut the evidence of complainant, opposite parties tendered into evidence affidavit of Sh. Robind Kumar (Ex. OP-1/1) and the documents (Ex. OP-1/2 to Ex. OP-1/3). The learned counsel for the parties reiterated their stand as taken in their respective pleadings. We have heard learned counsel for the parties and gone through the record. There is no dispute between the parties regarding initial allotment of plot in question in the name of Rahul Kumar Gautam vide letter of Intent (Ex. C-6) and thereafter transfer of said plot in the name of complainant vide Ex. C-5. There is also no dispute that requisite amount of said plot stands paid to the opposite parties. The submission of learned counsel for the complainant is that no doubt during pendency of complaint, opposite parties paid an amount of Rs. 8,66,250/- to complainant on 9-1-2020, deposited by him with the opposite parties, but the complainant has received this amount under protest as the opposite parties have retained this amount for such a long period and failed to ful-fill their committments as agreed vide letter of Intent Ex. C-6. The opposite parties failed to deliver possession of plot within stipulated period and now decided to refund the amount on the ground that at this site, market rate is less than the allotment rate i.e. @ 6000/- per Sq. Ft. of residential plot. He submitted that complainant is entitled to interest alongwith cost and compensation. The learned counsel for the opposite parties argued that parties are bound by the terms and conditions of allotment letter. The opposite parties completed the development work at site and provided basic amenities and delivered possession of plots to all allotees including complainant. He further argued that complainant himself applied for cancellation of his allotment and requested for refund of his money on 4-4-2019 and opposite parties refunded Rs. 8,66,250/- to complainant vide cheque No. 770212 dated 8-1-2020. So, complaint is liable to be dismissed. A perusal of record reveals that the complainant, during the pendency of complaint, has already received an amount i.e. Rs. 8,66,250/- from the opposite parties under protest through cheque on 9-1-2020. A perusal of record also reveals that Letter of Intent was issued to Rahul Kumar Gautam, original allottee on 26-2-2013. As per clause 12 of this letter “Possession of plot was to be handed over to the allottee after completion of development works at site or 18 months from the date of issue of allotment letter which ever was earlier. Similar matter under same scheme has been decided by Hon'ble State Commission, Punjab, Chandigarh, in the case titled Raman Goyal Vs. PUDA (now BDA) CC No. 865 of 2019 decided on 30-06-2020 wherein it has been held :- “..Opposite party is deficient in service in delaying the delivery of possession for such a long period. The complainant is nowhere at fault in complying with the terms and conditions of the Allotment Letter, but opposite party is definitely at fault by not adhering to the terms and conditions thereof. We are of the opinion that complainant is entitled to refund of his deposited amount with compensation and litigation expenses.” Hon'ble National Commission in Revision Petition No. 1678 of 2018 decided on 14-2-2019 case titled Estate Officer PUDA (now BDA) Vs Kewan Kumar Goyal has observed in similar matter that in case the possession is not offered within a reasonable time and when they are not in a position to tell that when the possession will be delivered then the order of refund passed by District Forum is justified. Hon'ble Supreme Court in the case titled Pioneer Urban Land and Infrastructure Limited Vs. Govindan Raghavan (2019) 2 RCR (Civil) 738 has opined in similar matter that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid with reasonable amount of interest thereon from the date of payment till the date of refund. In the case in hand as per terms and conditions of allotment letter/letter of Intent, the possession of the plot was to be delivered within 18 months from the date of letter of intent dated 26-2-2013 (Ex. C-6) after completion of development work at site i.e. upto 26-8-2014. The opposite parties have neither placed on file any document to prove that physical possession of plot was ever delivered/offered to complainant within that period after completion of basic amenities/agreed facilities nor produced any completion certificate regarding basic amenities. Therefore keeping in view the facts, circumstances, evidence and the opinion rendered in the aforesaid citations, this Commission is of the considered opinion that non-completion of said project with basic amenities within time and non-delivery of plot to complainant in stipulated period, amounts to deficiency in service on the part of the opposite parties. The complainant is also entitled to interest as the opposite parties used the amount deposited by complainant for plot. Resultantly, this complaint is partly allowed with Rs.10,000/- as cost and compensation. The opposite parties are directed to pay total amount deposited by complainant alongwith interest @8% p.a. from the date of deposit till payment after deducting the amount already paid by them to complainant on 9-1-2020 before this Commission, during pendency of complaint. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to covid pandemic and heavy pendency of cases. Copy of order be sent to the parties concerned free of cost. File be consigned to the record room. Announced : 19-05-2022 (Kanwar Sandeep Singh) President (Shivdev Singh) Member (Paramjeet Kaur) Member
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