DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 248 of 16-07-2015

Decided on : 10-01-2017

Sanjeev Honda S/o Sh. Gurbaksh Singh Honda R/o Street No. 6, Nanak Nagri, Abohar.

…...Complainant

Versus

1. Estate Officer, Bathinda Development Authority/PUDA, B.D.A. Complex, Bhagu Road, Bathinda.

2. Chief Administrator, Bathinda Development Authority/PUDA, B.D.A. Complex, Bhagu Road, Bathinda.

.......Opposite parties

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

Quorum :

Sh. M.P.Singh. Pahwa, President

Sh. Jarnail Singh, Member

Present :

For the complainant : Sh. Satwir Singh, Advocate.

For the opposite parties : Sh. N.P. Singh, Advocate.

O R D E R

M. P. Singh Pahwa, President

1. Sanjeev Honda, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Estate Officer, Bathinda, Development Authority and another (here-in-after referred to as 'opposite parties).

2. Briefly stated, the case of the complainant is that in the year 2012, opposite party No. 1 invited auction applications dated 17-10-2012 for allotment of residential plots at its scheme PUDA Enclave (OUVGL), Abohar. 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. 2756 dated 04-03-2013 that possession of plot shall be handed over to the allottee within 90 days of issue of allotment letter provided 25% of the sale price has been paid. The complainant relying upon the representation made by the opposite parties in their allotment letter had through auction the allotment of 300 Sq. Yds plot No. 108 in general category in the said scheme vide intent letter. He deposited the requisite amount vide receipt No. 43 dated 17-10-212 and 5131 dated 12-02-2013. The total sum of Rs. 7,65,000/- was deposited. The allotment letter of the scheme provided mode of payment of the remaining amount of 75% as below :-

a) Schedule/Mode of payment

b) Payment of Rs. 7,65,000/- made, has already been adjusted towards initial 25% of the price of plot.

c) Balance 75% of the total price of the plots to be deposited in 6 half yearly installments alongwith interest 12% per annum and with rebate schedule.

2. The complainant has to pay remaining 75% of the amount in 6 equal half yearly installments with interest. It was provided in the scheme that after first initial payment of 25% and handing over possession of plot after 90 days, remaining six installments were to be paid alongwith 12% interest on reducing basis. The complainant purchased the plot for his livelihood. He wanted to pay installments regularly with interest, 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 of 90 days. 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.

3. 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, on 26-06-2014 complainant wrote letter to Estate Officer, PUDA to refund the entire amount with interest. The opposite parties issued alleged order vide memo No. 8164 dated 2-12-2014 that allotment of plot No. 108 PF had been cancelled in the name of complainant and 10% consideration amount has been deducted in PUDA/opposite parties account. The balance amount is refunded to the complainant as per allotment letter clause 7 (viii). After four months, the complainant received cheque for the amount of Rs. 4,23,071/-.

4. 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.

5. 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 February, 2013 to March, 2015. 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 Rs. 10,000/- per month from February, 2013 to 2015; pay Rs. 1,00,000/- as compensation and Rs. 20,000/- as cost of litigation. Hence, this complaint.

6. Upon notice, the opposite parties appeared through counsel and contested the complaint by filing joint written reply. In written reply, the opposite parties raised legal objections that complainant is not consumer. That he has no cause of action or locus standi to file the complaint. That complaint is not maintainable. This this Forum has no jurisdiction to give any relief to the complainant because he purchased the plot in open auction held on 17-10-2012, which does not come within the purview of 'Act'. Moreover, the jurisdiction of this Forum is also barred u/s 174 of PUDA Act. That complaint is bad for non joinder and mis joinder of necessary parties. That complainant has not come to this Forum with clean hands and has concealed material and true facts. He has violated the terms and conditions of the auction dated 17-10-2012 as well as of the allotment letter dated 04-03-2013. That complaint involves intricate questions of law and facts which cannot be decided in summary proceedings. That complainant is estopped to file the complaint by his act, conduct and acquiescence. The complainant has failed to deposit installments of the plot within time as per terms and conditions of the auction as well as of allotment letter. That complainant has filed a false, frivolous and vexatious complaint to his knowledge. He be ordered to pay Rs. 10,000/- as penalty u/s 26 of the 'Act'.

7. On merits, it is denied that any applications were invited for allotment of residential plot. It is mentioned that PUDA offered residential and commercial sites at PUDA Enclave, Fazilka Road, Abohar on the basis of terms and conditions of auction which was held on 17-10-2012 and the same was published in various news papers. It is denied that opposite parties invited applications or distributed brochures for auction of plots. It is reiterated that PUDA offered allotment of residential and commercial sites in auction on the basis of terms and conditions of the auction and published public notice in this regard in various news papers. It is further mentioned that as per record the complainant purchased plot No. 108 PF measuring 300 Sq. Yds on 17-10-2012 for a sum of Rs. 30,60,000/- under said auction/scheme and deposited 10% of the bid amount i.e. Rs. 3,06,000/- on 7-03-2013 as per terms and conditions of the auction. The complainant was highest bidder in the said auction. Thereafter he also deposited 15% amount of bid amount i.e. Rs. 4,59,000/- within 30 days of auction as per terms and conditions of auction. The opposite parties issued allotment letter No. 2756 dated 04-03-2013 of the said plot No. 108 PF to the complainant. He is bound by terms and conditions of the auction dated 17-10-2012 and also allotment letter dated 04-03-2013. It is denied that complainant was ready to pay remaining installments. It is also mentioned that complainant has not sent any letter to the opposite parties and has failed to deposit installments as per terms and conditions of auction and allotment letter.

8. It is also mentioned that as per term No. 4 (i) of the allotment letter dated 04-03-2013 possession of the plot was to be handed over to the allotee within 90 days of issue of allotment letter provided 25% of the sale price has been paid. If possession is not taken by the allotee within stipulated period, it shall be deemed to have been handed over on the expiry of said period. It is admitted that complainant requested opposite party No. 1 for refund of amount on 26-05-2014. On the request of complainant, the allotment of plot was cancelled as per term No. 7 (viii) of allotment letter and refunded his amount as per rules, regulations and policies of PUDA vide order/letter No. 8162-64 dated 2-12-2014. It is asserted that there is no deficiency in service or unfair trade practice on the part of the opposite parties. All other averments are categorically denied.

9. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavit 7-7-2015 (Ex. C-1), photocopy of order (Ex. C-2), photocopy of allotment letter (Ex. C-3), photocopy of letters (Ex. C-4 & Ex. C-5), photocopy of payment receipts (Ex. C-6 & 8), photocopy of letter (Ex. C-7) and photocopy of detail of installment (Ex. C-9).

10. In order to rebut this evidence, opposite parties have tendered into evidence affidavit dated 10-10-2015 of Gurjant Singh (Ex. OP-1/1) and closed the evidence.

11. We have heard learned counsel for the parties and gone through the record.

12. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that it is not disputed that complainant was allotted plot No. 108 PF vide allotment letter dated 04-03-2013. Ofcourse the complainant has purchased this plot by way of auction but the complainant still remains consumer as other party was to deliver possession of plot. There is nothing to show that complainant was to voluntarily come forward to take possession or otherwise it was to be deemed delivered. As per clause 1(ii) of allotment letter, dimension of the plot and area are subject to variations as per measurement at the time of actual delivery of possession at site. This fact itself proves that sale did not stand complete as the opposite parties were still to confirm the exact area and thereafter determine the value of the plot. There is nothing to show that opposite parties have ever demarcated or ascertained the exact area. Therefore, it cannot be concluded that complainant does not remain consumer being auction purchaser.

13. It is further submitted by learned counsel for the complainant that admittedly complainant deposited 25% of the total sale consideration. As per complainant, the opposite parties failed to develop scheme and deliver possession within reasonable time. Therefore, the complainant was having no option except to withdraw from the scheme. The opposite parties have admitted that complainant opted for withdrawal from the scheme. The complainant produced on record copy of order (Ex. C-2). It proves that this order is based on the request of complainant and opposite parties have refunded the amount deposited by the complainant but after deducting 10% of the total sale consideration. There is nothing in the allotment letter that when the opposite parties failed to develop the scheme and deliver possession, it will still be entitled to impose penalty or deduct 10% of the amount. The order (Ex. C-2) also proves that it is not based on any clause. It is based on the request of the complainant. Therefore, in such circumstances, clause 7 (viii) is also not applicable. The order of the opposite parties in deducting 10% of the sale consideration is patently illegal and is liable to be set aside.

14. It is further submitted by learned counsel for the complainant that opposite parties have utilized the amount received from the complainant without developing scheme and without delivering possession. Therefore, the complainant is also entitled to interest on the amount deposited by him. The complainant has claimed interest @12% P.A. which is quite reasonable. The opposite parties have unnecessarily delayed in development of scheme and delivery of possession. Therefore, the complainant is also entitled to compensation for this period and the compensation claimed by the complainant for this delay @ Rs. 10,000/- per month is also quite reasonable. The complaint be accepted in terms of prayer.

15. In support of his submissions, learned counsel for the complainant has cited :-

    (i) 2013(2) PLR 379 case titled Punjab Urban Planning and Dev. Authority and others Vs. Raghu Nath Gupta and Others

    (ii) 2016(3) RCR (Civil) 924 case titled Bunga Daniel Babu Vs. M/s. Sri Vasudeva Constructions

    (iii) 1 (2009) CPJ 282 (NC) case titled Rajendra Properties and Industries Vs. Om Parkash

    (iv) 2014 (4) RCR (Civil) (SC) 832 case titled Sanjay Kumar Joshi Vs. Municipal Board Laxmangarh and another

    (v) 2011(4) CPJ 669 case titled Rajit Khod Vs. Haryana Urban Development Authority

    (vi) 2014(4) RCR (Civil) 136 case titled Emaar MGF Land Limited Vs. Karnail Singh

    (vii) I (2014) CPJ 335 (NC) 335 case titled Runwal Developers Pvt. Ltd., Vs. Dinesh Hegde

    (viii) I (2014) CPJ 295 (NC) case titled Delhi Development Authority Vs. Efficient Offset Printers

    (ix) 2008(2) CPJ 539 case titled Sahib Chand and Another Vs. Punjab Urban Planning and Development Authority (PUDA)

    (x) 2015(2) CPJ 690 case titled J P Mittal and another Vs. Haryana Housing Board and another

    (xi) IV (2010) CPJ 300 (NC) case titled HUDA Vs. Desh Rattan Dutta

    (xii) III (2010) CPJ 428 (NC) case titled Sushila Devi Aggarwal & Ors Vs. Jan Sankalp Sehkari Avas Samithi Ltd., & Anr.

    (xiii) 2009 (2) RCR (Civil) 401 case titled UT Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors.

    (xiv) 2012(3) CPJ (NC) 689 case titled Rajkot Municipal Corporation & Anr. Vs. Dr. Hemang H. Vasawada

    (xv) 2013(2) PLR 379 (SC) case titled Punjab Urban Planning and Dev. Authority and others Vs. Raghu Nath Gupta and others

16. On the other hand, learned counsel for opposite parties has submitted that before claiming any relief, the complainant has to prove that he is consumer as defined under the 'Act'. As per complainant himself the plot in question was purchased by him in auction. Allotment Letter Ex. C-3 also proves that plot was offered on “As is where is basis”. Therefore, the complainant is auction purchaser. He does not fall within the definition of 'consumer'. As such, the complaint is not maintainable. When the complaint is not maintainable, no relief can be granted to the complainant. The complaint is liable to be dismissed for this reason.

17. It is further submitted by learned counsel for the opposite parties that complainant has deposited 25% of total auction money. As per terms and conditions of allotment letter, it is proved that complainant has accepted terms and conditions. Now the complainant cannot escape from these terms and conditions. Clause 7(viii) is clear. As per this clause, complainant was required to pay the installments/amounts in time and in case of default, he was liable to pay penalty and the opposite parties were having right to assume the plot. As per this clause, the opposite parties were also entitled to forfeit 10% of the total amount of consideration money, interest and other fee. The opposite parties have passed the order strictly as per terms and conditions mentioned in the allotment letter. The amount payable to the complainant has been paid to him. Therefore, no deficiency in service or unfair trade practice can be attributed to the opposite parties. The complainant himself failed to pay due installments despite notice issued by the opposite parties and thereafter he surrendered the plot. Now, complainant is estopped from claiming any relief on the basis of allotment letter.

18. To support these submissions, learned counsel for the opposite parties has cited :-

    (i) 2009 (2) CLT 511 case titled U.T. Chandigarh Administration & Anr., Vs. Amarjeet Singh & Ors.

    (ii) 2012(4) CLT 248 case titled Punjab Urban Planning and Development Authority and others Vs. Raghu Nath Gupta & Others

19. We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions.

20. Before coming to the controversy on merits, it is to be decided whether the complainant falls within the definition of consumer. It is not disputed that plot in question was purchased by complainant in open auction. Copy of allotment letter is on the record as Ex. C-3. Although as per condition No. 1(iii), the plot was offered on “as is where is basis” but when this condition is read with other conditions, it is made out that exact dimension of the plot and area were subject to variations as per measurement at the time of actual delivery of possession at site. Therefore, it can be safely presumed that at the time of auction and even at the time of issuance of allotment letter, the exact dimension of the plot and area were not determined. Of course it is also mentioned in condition No. 4 that possession of plot was to be handed over to the allottee within 90 days of issue of allotment letter provided 25% of the sale price has been paid. It is further mentioned that if possession is not taken, it shall be deemed to have been handed over on the expiry of said period, but there is nothing on record to prove that after receipt of 25% of the sale price from the complainant, the opposite parties ever offered possession of plot to the complainant after determining its exact dimension and after demarcating the plot. Therefore, it cannot be accepted that possession of plot was delivered to the complainant. This inference stands supported from the order Ex. C-2 vide which the amount deposited by the complainant was ordered to be refunded. This order is based on the request of the complainant, copy of which is Ex. C-4. In the application Ex. C-4, the complainant has nowhere mentioned about surrender of possession. This order is based on request. There is request for resumption of plot. In case plot was delivered to the complainant, then opposite parties were certainly to assume the possession by way of specific order. This act itself shows that possession can be deemed to have been delivered to the complainant.

21. The learned counsel for the opposite parties has relied upon the law settled in the case of U.T. Chandigarh Administration & Anr. Vs. Amarjeet Singh & Ors (supra), but a perusal of this judgement will reveals that facts of the reported case are clearly distinguishable. In the cited case, the main reason to oust the jurisdiction was that there was no obligation (statutory or contractual) on administration to provide amenities but in this case facts reveal that after auction, the opposite parties were under obligation to deliver the possession after receipt of 25% of the amount.

22. Therefore, the said case law is not applicable to the facts of the case in hand.

23. Now coming to the main controversy involved in this case. It is not disputed that complainant deposited 25% of the total consideration. The complainant has claimed refund of this amount on the ground that opposite parties have failed to develop the scheme and provide amenities. The opposite parties have accepted this request of the complainant. Therefore, it is immaterial whether the scheme stands developed or not. The main controversy is only whether the opposite parties are justified in forfeiting 10% of the total consideration and interest, and other fee due against the complainant. This power is exercised on the basis of condition No. 7 (viii) of the allotment letter. For the sake of convenience, this condition is reproduced as under : -

    “ 7.(viii) – In case of breach of any condition(s) of allotment or of regulations or non-payment of any amount due together with the penalty, the plot or building as the case may be, shall be liable to be resumed and in that case an amount not exceeding 10% of the total amount of consideration money, interest and other fees payable in respect of Plot shall be forfeited as per the provision of section 45(3) of the Punjab Regional and Town Planning and Development Act, 1995.”

24. Therefore, this condition proves that this power can be exercised only incase of breach of any condition of allotment or regulations or non-payment of any amount due. In the order Ex. C-2, there is nothing to show that this order has been passed on account of breach of any condition on the part of the complainant. This order is passed on the request of the complainant vide separate application. When the order is not on any breach of condition or regulation, the opposite parties cannot exercise powers under this clause.

25. Moreover, in the allotment letter, there is nothing mentioned that complainant was not entitled to withdraw from the scheme. There is also nothing in the allotment letter to prove that in case of withdrawal by complainant from the scheme, the opposite parties will be entitled to forfeit any part of the amount deposited by him. Therefore, the conclusion of forfeiture of 10% of total sale consideration is not justified. The complainant was entitled to refund of his entire amount deposited by him.

26. The complainant has also claimed interest on the total amount but there is nothing in the allotment letter to show that in case complainant withdraws from the scheme, he will not be entitled to claim interest. In these circumstances, complainant is held entitled to interest on the entire amount deposited by him. However, the opposite parties have withheld part of the amount of the complainant which is not justified. Therefore, the complainant is held entitled to interest @ 12% p.a. on the amount withheld by the opposite parties from the date of order of refund till payment.

27. For the reasons recorded above, this complaint is partly accepted with Rs. 5,000/- as cost and compensation against the opposite parties. The opposite parties are directed to refund the balance/remaining amount of the complainant with interest @ 12% p.a. The interest on the balance amount will be payable w.e.f. 05-06-2014 till the date of payment.

28. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

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

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

    Announced :

    10-01-2017

    (M.P.Singh Pahwa )

    President

     

     

    (Jarnail Singh )

    Member