STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 12.02.2018
Date of final hearing: 02.11.2023
Date of pronouncement: 13.12.2023
CONSUMER COMPLAINT NO. 69 of 2018
IN THE MATTER OF: -
Gurbinder Singh Mann S/o Sh. Gurinder Singh Mann, R/o H.No. 161, Sector-12, Panchkula. …..Complainant
Versus
- Chief Administrative, Haryana State Agriculture Marketing Board, Sector-6, Panchkula.
- The Secretary-cum-Executive Officer, Market Committee, Sector-20, Panchkula. …..Opposite Parties
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Pardeep Solath, counsel for complainant.
Sh. Pankaj, proxy counsel for Sh. B.S. Negi, counsel for opposite parties.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Facts are: OPs invited applications for allotment of ‘retail spaces’ in Agro Mall at New Grain and Vegetable Market, Sector-20, Panchkula through advertisement. Booking commenced from 15.05.2008 and closed on 16.06.2008. Mode of allotment of shops was through draw of lots as per application form. Intending applicant was required to deposit earnest money @ 10% of cost of shop with application form. Successful applicant was required to deposit 15% of allotment cost within 30 days from draw of lots. Remaining 75% cost of shop, could either be deposited in lump sum, without interest, within 60 days from date of issuance of allotment letter, or in six half yearly installment with interest @15% p.a. Application form dated 15.05.2008 is Annexure C-1. Complainant was interested in shop measuring 537 sq. ft. at ground floor of Agro Mall, Sector-20, Panchkula whose aggregate cost is Rs.34,94,430/-. 10% earnest money was Rs.3,75,000/-. He moved application No. 013 dated 10.06.2008; and deposited Rs.3,75,400/-. He was issued registration card No. 938 dated 27.10.2008 against his application. He was intimated vide letter No. 1205 dated 19.11.2008 that: he has been allotted shop No. 28 in Agro Mall, NGM, Sector-20, Panchkula in draw of lots, held on 07.11.2008. He was asked to deposit 15% of total cost of shop within 30 days upto 06.12.2008. He deposited Rs.4,98,300/- vide receipt No. 231 book No. 6 dated 04.12.2008 with OP No.2.
2. Allotment letter-Annexure C-5 was issued in his favour on 16.05.2009. As per allotment letter remaining six installments (75% remaining amount) were required to deposit from 15.11.2009, 15.05.2010, 15.11.2010, 15.05.2011, 15.11.2011 and 15.05.2012. He deposited all six installments as per schedule (details in respect have been given in para No. 4 of complaint). Total amount deposited by him was Rs.31,65,882/-. Payment receipts, collectively, is Annexure C-6. It is pleaded that as per clause 4 & 5 of allotment letter; interest @15% p.a. can be levied by OPs, only if, possession is offered to allottee and upon failure to pay installment; a penal interest of 4% p.a., compounded half yearly shall be charged in addition to normal 15% interest per annum. Thus, penal interest for delayed payments was @19% p.a.
3. No specific period of offering the possession was mentioned in allotment letter. It was told to complainant and other allottees that Mall will be completed by April-2009. Due to inordinate delay in completion of Agro Mall; there were representations filed by allottees to OPs. Being failure on the part of OPs to deliver possession of shops; meeting of Board of Directors of OPs was held and it was decided that entire schedule of payment be restructured and installments which was started from 15.11.2009 were rescheduled to start from 15.11.2011. In view of decision of Board of Directors; OP No. 1, vide letter dated 10.01.2013 issued directions to issue fresh schedule of installments to allottees. OP No. 2 vide letter dated 15.03.2013 rescheduled the installments, as per which; first installment was to be paid on 15.11.2011 and thereafter on 15.05.2012, 15.11.2012, 15.05.2013, 15.11.2013 and sixth installment on 15.05.2014. It is pleaded that complainant had already deposited upto four installments as on 16.05.2011 which amounts to 80% of total cost i.e. Rs.26,20,852/-. Letter dated 10.01.2013 and 15.03.2013 are Annexure C-7 and Annexure C-8.
4. Despite passage of sufficient time; possession of shop was not handed over to complainant. He visited at office of OPs several times for possession of shop. Preparations to start business in shop at Agro Mall were badly shattered. He met OPs several times for refund of time deposited by him with interest. No heed was paid to his request. In May-2015, he personally visited at site of Agro Mall for verification about development works at site. He was shocked and surprised to see that Agro Mall was lying in absolutely ignored condition. There was no sign of completion of the site. There were no chances of immediate possession of shop in question at site. OP did not inform this fact to allottees and they were forced to pay installments, without even completion of construction.
5. Meeting of Board of Directors was held on 09.03.2016. It was observed that there was inordinate delay in completion of Agro Mall which was to be completed by April-2009 and installments to be paid by allottees be rescheduled, considering 01.03.2016 as date of allotment. It was also decided allottees who have already deposited entire or partial allotment price, shall be granted simple interest @9% p.a. on the amount deposited by them, from the date of each deposit, till 01.03.2016. It was also approved that: allottees seeking refund by surrendering their shops be also considered. Proceedings of Board of Directors dated 09.03.2016 and letter dated 25.03.2016 issued by OP No. 2 is Annexure C-9. Decision of Board of Directors taken in meeting dated 09.03.2016 was circulated to OP No. 2 vide letter dated 21.04.2016-Annexure C-10 for taking action. OP No. 2 issued letter No. 467 dated 02.04.2016-Annexure C-11 and issued offer of possession of shop to complainant. No benefit of interest was given to him as directed by Board of Directors in meeting dated 09.03.2016. OP No. 2 intimated that area of shop has been decreased from 537 sq. ft. to 445.5 sq. ft. and complainant was asked to take possession of shop.
6. After few months, OP No. 2 again issued second possession offer dated 08.10.2016 bearing No. 2154-Annexure C-12. Complainant went to office of OP No. 2 and asked about this second offer of possession letter. He was told that location and size of shop No. 28, has been changed. This action of OPs, as per plea, is illegal. Complainant showed his inability to take possession of shop as same was almost 100 sq. mtr. Smaller and not sufficient for doing of business of agriculture products, which require bigger space. Complainant asked OP No. 2 for refund of amount with 19% interest p.a., as per decision of Board of Directors dated 09.03.2016 saying that: allottess can seek refund of amount deposited by them. Op No. 2 told him that if he does not deposit requisite amount as demanded, then allotment of shop may be cancelled and amount forfeited. OP No. 2 promised complainant that he will talk to OP No. 1 regarding size of shop and interest paid to allottees, as per Board of Directors decision dated 09.03.2016. In such circumstances, complainant was asked to deposit final payment of Rs.1,08,242/- more towards cost of shop. Accordingly, complainant asked OP No. 2 to issue: “No Dues Certificate” which was issued to him.
7. It is pleaded that OPs delayed possession of shop, almost eight years and on the other hand; as per their policy, they have charged 15% interest and 19% penal interest on delayed installments. There was no detail of dimensions of shop and it has been informed only that: ‘super area’ is decreased from 537 sq. ft. 445.5 sq. ft. This is despite, complainant paid 95% of total sale value amounting to Rs.30,57,640/- towards shop, till 25.11.2013 and possession was delayed by eight years. Now, he has asked to accept smaller shop which is unreasonable and not acceptable. Action of OPs amounts to deficiency of service on account of non-delivery of possession. Complainant has not only suffered financial losses but also suffered mental harassment and agony at the hands of OPs. He visited office of OPs in May-2016 and requested for refund of amount with interest. No refund has been made till date. On these facts; this complaint has been filed. Directions have been sought against OPs: to refund Rs.31,65,882/- paid by complainant towards price of shop with interest @19% as charged by them (OPs) from the date of deposit till payment. Compensation for harassment to the tune of Rs.5.00 lacs be granted to complainant along with Rs.1.00 lacs towards cost of proceedings. Text of complaint is supported by his duly sworn affidavit dated 12.02.2018.
8. Upon notice, OPs in their defence asserted in preliminary objection that: complaint is not maintainable. Complainant has no locus-standi. Complaint is result of manipulation of material facts. It is false, frivolous, vexatious and filed to harass and humiliate OPs. As per terms and condition No. 7 of allotment letter dated 16.05.2009; there was no time specified to offer the possession of shop/space in Agro Mall. It is clearly mentioned in allotment letter and in the Broucher that: the possession of shop will be offered after construction of Agro Mall. As per terms and condition No. 3 of allotment letter; the area is subject to variation at the time of actual possession. It is mentioned in Broucher that: number of shops/cabin and size of shops/cabin/floors is tentative and can be changed, as required. No cause of action has arisen in favour of complainant. It is mentioned in terms and conditions of Broucher (vi): that all disputes and deficiency connecting with this allotment, whatsoever shall be referred to sole authority of Chief Administrator or any other officer appointed by him. Decision of such arbitrator shall be final and binding. Complainant has to avail remedy of arbitration. He had to approach Chief Administrator, HSAMB before filing of this compliant but he did not approach. He is estopped to file this compliant by his own acts and conducts. He has not come with clean hands and suppressed material facts. He himself is defaulter for not making the installments payment as per schedule. He is not a consumer. Payment of installments, as provided in the allotment letter has no co-relation with construction/completion of Agro Mall. Allotment is liable to be cancelled for non-payment of installment, as per terms and conditions specifically mentioned in allotment letter dated 16.05.2009 and agreed by complainant also. It is pleaded as incorrect that: complainant was interested in shop measuring 537 sq. ft. at ground floor of Agro Mall Sector-20, Panchkula. It is admitted that he deposited Rs.4,98,300/- vide receipt No. 231, book No. 6 dated 04.12.2008 with OP No. 2 and thereafter OP No. 2 issued allotment letter dated 16.05.2009. It is pleaded that: he did not deposit installment as per schedule of allotment letter and even after rescheduling of installments. Some installments were deposited after huge delay. He himself violated terms and conditions of allotment letter and Broucher. Possession of shop was offered to him vide letter No. 2154 dated 08.10.2016 in respect of Shop No. 28, Ground Floor, Agro Mall, Sector-20, Panchkula. Decision of Board of Directors dated 09.03.2016 was subject to approval from State Govt. and FD, before its implementation. The Govt., vide letter dated 08.09.2016 referred the same. Interest was given to allottee @9% on deposited payment, as per schedule, but person who had not deposited the payment in time, was not entitled for 9% interest on deposited payment. Interest of 9% was to be given to allottees subject to approval of Govt. and FD. Decision of Board of Directors (dated 09.03.2016) was rejected by Govt. vide letter dated 08.09.2016. There is no deficiency in service/unfair trade practice on the part of OPs. It is pleaded that complainant is seeking refund of deposited amount. As per Section 5A of Haryana State Agriculture Marketing Board (sale of immoveable property) Rules, 2000; if any plot holder wishes to surrender the plot the Market Committee shall accept the surrender of plot and will refund the deposited amount after deducting 10% of cost of plot and due payable interest. Complainant is eligible for refund as per Rules, Terms and Conditions of Board. On these pleas; dismissal of complaint has been prayed.
9. Parties to this lis; led their respective evidence. Complainant tendered his duly sworn affidavit Ex.CW-1/A towards his affirmative statement on oath and also placed reliance on documents Ex.C-1 to Ex.C-16. Complainant closed his evidence on 02.07.2019. On behalf of OPs; Sh. Dharmender Pal, Secretary-cum-EO, Market Committee, Panchkula has tendered his duly sworn affidavit Ex.OPW1/A toward affirmative statement on oath regarding OPs stance and closed the evidence on 17.01.2020 through statement of above named officer. Documents Ex.C-17 and Ex.C-18 were taken on record towards additional evidence of complainant by allowing complainant’s application as per order dated 01.07.2022 of this Commission. Status report prepared by Secretary Haryana State Agriculture Marketing Board, Panchkula has been filed and same taken on record through order dated 29.09.2022 of this Commission.
10. Learned counsel appearing for complainant has urged that: complainant has deposited Rs. 31,65,882/- with OPs, towards cost of plot. Shop No. 28 in Agro Mall, Sector 20, Panchkula which was allotted to him, vide allotment letter dated 16.05.2009 Ex.C-5 with area measuring 537 sq.ft. It is urged that: there is proved in-ordinate delay in completion of construction of Agro Mall by OPs. OPs have arbitrarily decreased the area of Shop No. 28 allotted to complainant from 537 sq. ft to 445.536 sq. ft. vide its letter dated 02.04.2016, Ex. C-11 and then it has increased area of shop to 486.511 sq.ft., as it is so visible from letter Ex.C-14 dated 06.09.2017 of Market Committee Panchkula. OPs have, arbitrarily issued second possession letter dated 08.10.2016-Ex.C-12 and change the location of shop No. 28 and asked complainant to take its possession. It is urged that: complainant had already deposited 95% of the total cost of plot till 25.11.2013 and offer of its possession was delayed abnormally. It is urged that document Ex.C-14 dated 06.09.2017 of the office of Market Committee Panchkula, addressed to complainant, endorses that: OPs have received Rs. 31,65,882/- with regard to Shop No. 28, Ground Floor, Agro Mall of the size 486.511 sq. ft. and letter dated 14.08.2018 Ex.C-15 of Market Committee-Panchkula recites that: Occupation Certificate has yet not been received in the office of Market Committee by 14.08.2018 (date of letter Ex.C-15) Further contention is that: in wake of inconsistent stand of OPs to reduce the area of shop allotted to complainant; he has rightly expressed his disinclination to obtain its possession and claimed refund of amount of Rs. 31,65,882/- with interest.
11. On the other hand, learned counsel for OPs has urged that: since there was no specific time mentioned in allotment letter dated 16.05.2009 regarding offer of possession; the complainant cannot urged that there was any delay on the part of OPs to offer possession. It is urged that: OPs have acted, within the parameters of conditions of allotment letter dated 16.05.2009, which also stipulates that: area of shop, allotted to any allottee, is subject to variation regarding its size and location there could be no exception, so far as, this case of complainant is concerned. It is urged that possession was offered by OPs, to complainant, firstly on 02.04.2016 as per document Ex.C-11 and secondly on 08.10.2016 as per document Ex.C-12 and it is the complainant alone, who has not come forward to take its possession. It is urged that in these circumstances; there could be no deficiency in service of OPs towards complainant and he is not entitled to any relief as claimed.
12. Admittedly, complainant submitted application for allotment of retail space in Agro Mall at New Grain and Vegetable Market, Sector 20, Panchkula. Admittedly, allotment letter Ex.C-5 dated 16.05.2009 was issued in his favour, for allotment of Shop No. 28 in Agro Mall, New Vegetable Market, Sector 20, Panchkula. Size of shop No. 28, as per allotment letter Ex.C-5 dated 16.05.2009, was 537 sq.ft. Admittedly, towards cost of this allotted shop; complainant has deposited Rs. 31,65,882/-. It is visible as such from document Viz. letter No. 953 dated 06.09.2017-Ex. C-14. Receipts of payments are collectively put in document Ex. C-6. The stand of OPs in defence that complainant was at fault to make payment of installments, as per schedule, is unworthy of acceptance.
13. Allotment letter Ex.C-5 dated 16.05.2009, recites in its clause No. 7 that: “Possession of shop/office space shall be offered to you after construction of Agro Mall”. Be that as it may, opposite party cannot make any allottee, with no exception to complainant herein, to wait for indefinite period/abnormally delayed period, for claiming possession. If it happens, as it has so happened in present case, it would undoubtedly create sordid conditions and circumstances for any allottee, with no exception to complainant to face. Nothing could be vulnerable to any allottee/complainant herein than this. In the case in hand, admittedly, there was inordinate delay on the part of opposite parties to complete construction of Agro Mall. Inference in this regard can safely be deciphered from proceedings of meeting of Board of Directors dated 09.03.2016-Ex.C-9 which recites that work order at Agro Mall was to be completed by April-2009, however its completion were finalized in December-2015. Meaning thereby, when allotment letter dated 16.05.2009 Ex.C-5 issued to complainant for allotment of shop No. 28 at New Vegetable Market, Sector-20, Panchkula of the size of 537” got light of its day, then at that time, construction of at Agro Mall was not complete as it was finalized in December-2015.
14. Possession was offered to complainant for the first time by OP No. 2, on 02.04.2016 through its letter No. 467-Ex.C-11. It is thus proved that possession was offered to complainant on 02.04.2016 after expiry of 6 years and 11 month from date of allotment which was 16.05.2009 and that too of reduced size of shop. Curiously enough, complainant was informed through this offer of possession letter-Ex.C11 dated 02.04.2016 that: built up shop No. 28, ground floor measuring 537 sq.ft. (Super Area at the time of allotment) is now of 445.536 sq.ft. and ready of possession. For all this long period (16.05.2009 to 02.04.2016); complainant did not derive any benefit, pursuant to allotment letter dated 16.05.2009, Ex. C-5, whereas to the contrary OPs were deriving gains, benefits and of-course enriching themselves from the amount deposited by complainant towards cost of shop. It is visible from details of payment mentioned in para iv of complainant’s affidavit-Ex.CW1/A that: except last payment of Rs. 1,08,242/- which was made on 07.07.2017; rest of the payments towards of cost of plot were already deposited by complainant, before offer of possession letter dated 02.04.2016 Ex.C-11.
15. Complainant did not go ahead with offer of possession letter dated 02.04.2016, Ex.C-11, concerning shop No. 28 situated in New Vegetable Market, Sector-20, Panchkula. Since, size of allotted shop was reduced from 537 sq.ft. to 445.536 sq.ft., therefore, complainant was fairly justified while stating in his duly sworn affidavit-Ex.CW1/A in para 10 thereof, that he has shown his inability to take possession of shop which is almost 100 sq.ft. smaller and not sufficient for doing business of agriculture products, for which bigger space is required.
Second offer of possession was given to complainant 08.10.2016, by OP No. 2 through its letter No. 2154 dated 08.10.2016 Ex.C-12. Complainant did not adhere even to this second offer of possession letter dated 08.10.2016, Ex.C-12 for taking possession of built up shop No. 28, in Agro Mall, Sector 20, Panchkula. Admittedly, Market Committee-Panchkula was not having “Completion and Occupation Certificate” regarding Argo Mall. This fact is visible from perusing letter No. 1061 dated 14.08.2018-Ex.C15. May be, this letter (Ex.C-15) is regarding shop No. 19 ground floor, Agro Mall, Panchkula, yet it has important bearing to the controversy involved in this complaint. It is just for reason that shop No. 19 to which letter Ex.C-15 relates in situated in the same vicinity (Agro Mall), where complainant was allotted shop No. 28. If, there is no “Completion and Occupation Certificate” available with Market Committee-Panchkula regarding Agro Mall as on 14.08.2018, then, how come offer of possession through letter Ex.C-11 dated 02.04.2016 and letter Ex.C-12 dated 08.10.2016 can be issued in favour of complainant. Obviously, it is quite mysterious and mystifying circumstance and OPs have miserably failed to unveil this mystery.
16. In view of above subjective and critical discussion; this Commission is of firm opinion that: complainant has rightly put forward his demand before opposite parties to refund his deposited amount (Rs. 31,65,882/-) with interest. His request was not acceded by OPs which compelled him to file this complaint.
17. Issue regarding refund of amount is no more res-integra. Hon’ble Apex Court in case of Ms.Fortune Infrastructure (Now Known as Ms/ Hicon Infrastructure) & Anr. Vs. Trevour D’lima & Ors. Civil Appeal No(s).3533-3534 of 2017, decided on 12.03.2018 wherein it has been held in para 15 that:
“ 15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract, i.e. the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue in answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to?”
18. Likewise, Hon’ble Apex Court in case titled as Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No. 6044 of 2019 decided on 07.04.2022 with respect to the scope for grant of compensation and held that:
“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory interest has to be paid from the date of the deposit of the amounts. The Commission in the Order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.
At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just”.
19. Following the ratio laid down in above cited judgment; the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in case titled as Haryana State Agricultural Marketing Board and Another Versus Nand Kishore, First Appeal No. 829 of 2019, decided on 18.09.2023 has passed order to refund the amount of Rs. 61,63,268/- to complainant/respondent along with simple interest @9% p.a. from the respective date of deposit onwards, within period of one month, from the date of order. In the event of default, the amount payable shall carry interest @12 % p.a. from the date of expiry of one month till realization of the entire amount. Cost of litigation has been quantified as Rs. 21,000/-.
20. Above being the settled legal position; the issue of refund of Rs.31,65,882/- and rate of interest thereon, posed in this complaint, is answered in favour of complainant and against OPs. Accordingly, this complaint is allowed. Direction is issued to OPs to refund the amount of Rs.31,65,882/- to complainant along with simple interest @9% p.a. from respective date of deposit onwards, within period of one month, from the date of this order. In the event of default, to comply with this direction; then rate of interest would escalate from 9% p.a. to @12 % p.a. from the date of expiry of one month till realization of the entire amount. Complainant has suffered harassment and mental agony for no fault on his part for long period. Thus, he deserves some reasonable amount of compensation as well. Ends of justice would meet, if sum of Rs. 21,000/- is awarded to complainant, towards compensation for harassment and mental agony, to be paid by OPs with interest @9% from the date of filing of complaint till realization. Complainant is also entitled to the cost of litigation which is quantified at Rs. 21,000/- to be paid by OPs. It is made clear that amount of cost awarded to complainant will not carry any interest.
21. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
22. Copy of this judgment be provided to parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
23. File be consigned to record room.
Date of pronouncement: 13th December, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
