JUDGMENT Per Jagroop Singh Mahal, Member The aforementioned two complaints have been filed by husband and wife and opposite parties are the same in both complaints. Since, common questions of law and facts are involved in both these complaints so we are deciding these complaints through this common order. 2. The facts are culled out from complaint case No.54 of2010, according to which the complainant submitted an application for allotment of plot measuring 300 square yards in Sector-105, SAS Nagar Mohali in the year 2005 and deposited booking amount of Rs.6.00 lacs vide cheque No.174016 while submitting an advance registration form dated 19..11.2005 wherein it was clearly mentioned that the opposite parties would allot a plot at a basic price of Rs. 10,000/- besides extra development charges per square yard. However, contrary to the said undertaking, the opposite parties had revised the rate of the allotment of the plot unilaterally and arbitrarily and consequently increased the rate of plot from Rs. 10,000/- to Rs. 11,500/- per square yard in year 2007 and asked the complainant to deposit an amount equivalent to 30% of the basic sale price. Accordingly an amount of Rs.10,35,000/- was deposited by the complainant vide cheque no. 730651 dated 07.09.2006 drawn on Oriental Bank of Commerce. After depositing of the said amount, the opposite parties provisionally allotted plot no. 410 in Sector 109, Mohali instead of Sector 105, Mohali. OPs also forwarded the installment payment plan to the complainant. In view of arbitrary and illegal act of revising the price of the plot by the opposite parties, Greater Mohali Area Development Authority(for short GMADA) had published public notice in the newspaper namely “The Tribune” on 15.07.07 stating therein that the opposite parties had booked the residential plots at Rs. 10,000/- per square yard with the commitment to allot these plots in Sector 98 and 105, Mohali and the rate had been increased to Rs. 11,500/- per square yard and invited complaints from the general public to this effect. The complainant in response to the said advertisement submitted the documents to the concerned authority showing the allotment of plot at Rs. 10,000/- per square yard and the complainant being aggrieved against the unilateral and arbitrary act of allotment of plot in sector 109, Mohali sought intervention of the said authority for allotment of plot in sector 105, Mohali where the complainant had applied at the time of its booking. However, in order to avoid complication in the matter, as per installment payment plan, the complainant had deposited 1st installment of Rs.1,72,500/-vide cheques no. 730654 dated 19.06.2007 , IInd installment of Rs.1,72,500/- vide cheque NO. 730662 dated 15.09.2007 and 3rd Installment of Rs. 3,45,000/- vide cheque NO. 553756 dated 15.12.2007. Thereafter, the complainant made a number of requests to the opposite parties in writing as well as verbally and also visited the office of the opposite parties for allotment of plot in Sector 105, Mohali but of no avail as no efforts had been made by the Opposite Parties to allot the plot in Sector 105, Mohali. The complainant, thereafter received final notice dated 14.02.2008 from OP NO.2 in which complainant was called upon to sign the agreement by 05.03.2008 failing which allotted plot would be cancelled and amount would be refunded after deducting 20% of booking amount. Before the lapse of time given therein, OP No.2 had also issued letter dated 20.02.2008 asking therein to deposit the due payment of installments against the allotted plot. In response to the said notice, the complainant wrote letter dated 04.03.2008 clearly stating therein that until and unless the plot is allotted in sector 105, Mohali at Rs.10,000/- per sq. yards the agreement would not be signed and called upon the opposite parties to withdraw the said notice and do the needful. However, the complainant had not received any response from the opposite parties. Since the opposite parties had not allotted the plot in Sector 105, Mohali where the complainant had applied , so she was not supposed to make the payment of remaining consideration of the allotted plot yet she made payment of fourth installment of Rs.3,45,000/- vide cheque no. 730670 dated 18.03.2008. However, the complainant received final notice and different reminders from the opposite parties from time to time in which they had continuously demanded the outstanding amount against the allotted plot. The complainant again received a letter dated 15.06.2009 from the opposite parties in which it was mentioned that the buyer’s agreement for the above said allotted plot had been despatched to her . However, in response to the said letter , the complainant replied on 07.09.2009 stating therein that she had applied for plot of 300 sq. yards in Sector 105, Mohali but the Opposite Parties had allotted the plot in sector 109 instead of sector 105, Mohali at their own whims and fancies and requested for the refund of entire money i.e. Rs. 20,70,000/- alongwith 24% interest which was deposited by the complainant for the above said allotted plot. The complainant again received letter from Assistant Manager of opposite party No. 1 dated 18.09.2009 in which opposite party informed the complainant that the request for location change within Sector 108 & 109 could be considered subject to availability. In the month of February 2010, the complainant received letter dated 02.02.2010 from the OPs in which it was mentioned that the infrastructure work had been accomplished in sector 105 and 109, Mohali and the plots were ready for the possession but no effort was made by the opposite parties to allot and offer the plot in sector 105, Mohali . Thus, according to the complainant she was not under obligation to accept the possession of the allotted plot in sector 109, Mohali. Faced with the situation, the complainant got issued a legal notice dated 29.03.2010 calling upon the OPs to refund the entire amount of Rs.20,70,000/- which was deposited against the allotment of plot in sector 105, Mohali. 3. It was also alleged that the change of land use in respect of land falling in Sector 108 and Sector 109, SAS Nagar, Mohali was granted by the Govt. of Punjab vide letter dated 21.11.2006 which was notified accordingly vide notification dated 22.12.2006 from which it is clear that the applications for allotment of plots were invited by the opposite parties in the month of November, 2005 that was only in respect of Sector 105, SAS Nagar Mohali and inviting and accepting the application without having any authority, allotting the plot in sector 109 instead of Sector 105, Mohali and non-refund of the deposited amount alognwith interest constitutes deficiency in service and adoption of unfair trade practice as the complainant being the customer of the opposite parties was not supposed to make payment or accept the plot in sector 109, Mohali. Hence, complainant filed the present complaint before this Commission. Similarly complainant – Yash Paul Singla filed another complaint bearing No.55 of 2010 on the similar facts. 4. Upon issuance of notice of the complaint, OPs appeared and contested the complaint by filing their joint reply inter-alia stating therein that no registration form of any kind was issued by OPs towards any advance registration of any plot in the year 2005 detailing any specification of any plot whatsoever. However, on 10.11.2005 the Government of State of Punjab through Secretary, Department of Housing and Urban Development and the OP company signed a Memorandum of Understanding (for short MOU) for development of 5,000 acres of land in different parts of the State of Punjab and for setting up various projects with OPs. After the signing of MOU, some speculators, property agents started soliciting applications for booking of plots and upon being made aware of the same, OP company issued legal notices to various property agents and public notices were published in various leading newspapers on 21.11.2005 and 24.11.2005 which clearly stated that the OP company was not responsible for advertising or soliciting for booking of any plots and the same was being done by some unauthorized persons . The complainant came into the contact of OP company only on 6.9.2006 when she applied for advance application for registration of allotment, copy of which is annexure R-3. It is clearly indicated in clause 5 of the said application that the basic price per square yard was Rs.11500/- and towards the said advance application for registration of expression of interest, the complainant deposited an amount of Rs.10,35,000/- vide cheque dated 7.9.2006 and prior to it, no payment was received by OPs from the complainant. However, no assurance was given to the complainant for allotment of a plot in Sector-105. OP company in response to the public notice published in the Tribune newspaper dated 15.7.2007 clarified to GMADA that the OP company was conducting its business in accordance with law pursuant to the licence granted to it by the Punjab Government. The complainant had willfully applied through an advance application form towards the registration of expression of interest in a residential plot in “Mohali Hills” a project of OP company which extends over 3000 acres to be developed and the complainant paid the amount of his free will and the application was duly signed by the complainant and she agreed and understood that the instant expression of interest and registration amount may also be considered for registration of allotment of a plot in subsequent sectors to be developed by OP company. The complainant after applying for allotment and after being provisionally allotted the said plot did not raise any objection, plea or complaint with regard to the same and in fact duly and willfully paid installments upto 15.12.2007. It was stated that the complainant, being a defaulter in payments is liable to pay Rs.15,94,104/- in missed installments and an amount of Rs.4,71,699/- as delayed payment interest totaling to an outstanding amount of Rs.20,20,803/-. The complainant was given the option of cancelling the allotment vide letter of OP company dated 18.9.2009 but complainant did not chose the said option, therefore, no deficiency can be attributed to OP company. OPs also filed their reply in complaint case No.55 of 2010 taking identical pleas. 5. Parties adduced their evidence by way of affidavits and documents in both the complaints. 6. We have heard learned counsel for the parties and have gone through the file carefully. The learned counsel for complainant has argued that as desired by OPs, the advance registration form Annexure C-1 was given to the OPs on 19.11.2005 alongwith a cheque, copy of which is annexure C-2 for Rs.6,00,000/-. According to him, there is no mention in this advance registration form if the plots would be allotted in Sector 108 or 109 because till that time only Sector-105 was decided to be developed. His contention is that the complainant had applied for allotment of a plot in Sector-105 but it was wrongly allotted vide Annexure C-4 in Sector-109 against which she objected vide Annexure C-6 but to no effect. His contention is that complainant is still ready to accept the plot in Sector-105 at the rate of Rs.10,000/- per sq yard as mentioned in Annexure C-1 and if the OPs are not willing to abide by the same, she is entitled to the refund of the amount alongwith interest and compensation. Against this, learned counsel for OPs argued that they never entertained Annexure C-1 because it may have been done by some unscrupulous broker and when they came to know of it, notices were served on the brokers to discontinue this practice as is clear from copies of Annexure R-2. They also issued advertisement by way of public notice in the leading newspapers against the booking of plots by the brokers. His contention is that the agreement in this respect was through annexure R-3 dated 6.9.2006 in which a mention was made that the complainant agreed with the expression of interest and registration could also be considered for registration of allotment of a plot in subsequent Sectors to be developed by the OPs. According to him, keeping this in view the plot was allotted in Sector 109 vide Annexure C-4 and if the complainant was not willing to accept the said allotment she can get her money back less 20% of the same as per terms and conditions of the allotment. 7. We have considered the conflicting claims of both the parties but we do not agree with the contention of OPs. Annexure C-1 was submitted by the complainant at the instance of OPs. The allegation that some property dealers had been active and therefore the notices were issued to them by OP No.1 to desist from acting illegally does not appear to be correct. No doubt, OPs have produced Annexure-I which are purported to be copies of legal notices issued to Sh. Rajiv Bhatia, Anil Bansal, Veer Properties and Sh.Mahender Singh, these are alleged to have been sent through registered A.D. but neither the postal receipts nor the acknowledgments having been received by the addressees have been placed on record. These notices are not proved to have been put in transmission and therefore contention of the OPs that such notices were issued to the addressees cannot be accepted as correct. Annexure –II is the news item appearing in the Chandigarh Newsline dated 22.11.2005 mentioning that taking note of an advertisement given in various newspapers regarding pre-launch registration of plots by the OPs, the PUDA issued notices to the company directing it to return money deposited by the investors within 24 hours from the receipt of the notice or face criminal proceedings. It appears these notices Annexure-I have been introduced by the OPs to make out a defence in papers only to avoid penalty. One thing is certain that pre-launch registration had been started by the OPs and therefore annexure C-1 cannot be successfully disowned by them. 8. No plot could be booked by the OPs in Sector 108 or 109 through annexure C-1. It was initially Sector-105 SAS Nagar, Mohali which was to be developed and regarding which permission for change of land use was received from the Punjab Government. Annexure R-8 is the letter dated 1.8.2006 issued to the OPs by the Government of Punjab in this respect. Annexure R-9 and R-10 also relate to Sector-105 SAS Nagar and therefore question of booking of any plot in Sector-108 or 109 by the complainant did not arise. The agreement therefore between the parties was only with respect to Sector-105 and the complainant was entitled to allotment of plot in Sector-105 alone. 9. The contention of learned counsel for OPs is that in fact expression of interest was conveyed by the complainant on 6.9.2006 through annexure R-3 in para-2 of which it was specifically admitted that the complainant agreed and understood that the expression of interest and registration amount could also be considered for registration or allotment of a plot in subsequent Sectors to be developed by the OPs and therefore allotment of the plot in Sector-109 would be in accordance with the agreement between the parties. We do not find any merit in this argument also. Till 6.9.2006 OPs had not received permission for change of land use in Sector-108 or 109. It was only Sector-105 which had been approved vide Annexure R-8, R-9 and R-10. OPs, therefore, could not book plots in Sector-108 or 109. Annexure C-30 shows that the permission for change of land use to Sector-108 and 109 had not even been applied for till 11.8.2006 (as mentioned in opening line of this letter) and the same was conveyed on 21.11.2006. The notification in this respect was issued on 22.11.2006 vide Annexure C-31. The OPs, therefore, could not book any plot vide Annexure R-3 in Sector-109. 10. The Annexure R-3 makes it clear that the plot would be allotted on ‘ first come first served’ basis. In order to prove this fact it was necessary for the OPs to produce the record as to how many applications had been received by it till 19.11.2005 when Annexure C-1 was submitted or till 6.9.2006 when Annexure R-3 was submitted. It was also necessary for OPs to prove as to how many plots of this size applied for by the complainant were available in Sector-105 and to whom those have been allotted. The OPs kept everything a secret affair as to whether allotments had been made on ‘first come first served’ basis or not. In response to a specific query put by the Bench at the time of arguments, the learned counsel for OPs argued that in fact this record is not necessary to be produced because they are questioning the very maintainability of the complaint of the complainant. The record has therefore been willfully withheld by the OPs so that unfair trade practice adopted by them in the allotment of plots in Sector-105 does not come to the notice of this Commission. The learned counsel for complainant has argued that in fact OPs have allotted plots to those applicants who applied at a later date but they were willing to pay some extra amount for the said allotment due to which OPs acted in an arbitrary manner allotting said plots to those who came later whereas the complainant and other applicants who had applied earlier had been allotted the plots in Sector-109. 11. As per Annexure C-1, the rate of allotment of plot was fixed at Rs.10,000/- per square yard plus E.D as applicable. However, this amount was enhanced through annexure R-3 to Rs.11500/- per square yard. It is also alleged by complainant to be unfair trade practice. We do not, however, find any merit in this argument because in Annexure R-3 complainant herself submitted that the plot may be allotted to her at this rate. She cannot now be allowed to withdraw the said admission. 12. When the complainant received Annexure C-4 allotting plot in Sector-109 she immediately wrote to the Additional Chief Administrator, GMADA, vide Annexure C-6 and also to OPs vide Annexure C-12. The various correspondence attached on the file shows that the complainant had been requesting OPs to allot her plot in Sector-105 at the rate of Rs.10,000/- per square yard as initially agreed or refund the amount deposited by her has been made. OPs are not willing to allot plot in Sector-105 due to which a notice Annexure C-25 was issued and ultimately the present complaint was filed. If OPs are unable to allot plot in Sector-105 they should have refunded the amount when the request therefor was made. They, however, compelled the complainant to approach this Commission to get the relief which should have been allowed by OPs itself. There is, therefore, certainly deficiency in service on the part of OPs who have resorted to unfair trade practice. 13. It is also argued by the learned counsel for OPs that the complainant is defaulter and therefore in view of Bangalore Development Authority Vs Syndicate Bank AIR 2007 SC 2198 she was not entitled to any relief prayed for. This argument is devoid of merit. In fact the complainant is asking for allotment of plot in Sector-105, Mohali as per registration form Annexure C-1 and R-3. If the OPs are not willing to allot her the plot in that Sector, complainant is not liable to pay the installments which she had hitherto been paying in the hope that the OPs would accept her request for change of the Sector. It, therefore, cannot be said if the complainant is defaulter and not entitled to the relief. 14. It is also argued by the learned counsel for OPs that the allotment of plot by the OPs would not make the complainant a ‘consumer’ or OPs a ‘service provider’ and it is therefore, not a ‘consumer dispute’. We do not find any merit in this argument. The OPs had obtained the amount from the complainant with an assurance that they would carve out plots in a chunk of land, would develop the same by providing road and other amenities and would allot plot to the applicants. Complainant would certainly fall in the definition of ‘consumer’. In this respect we may refer to Ghaziabad Development Authority Vs Balbir Singh II(2004)CPJ12(SC) and Chandigarh Housing Board Vs Avtar Singh and others IV(2010)CPJ9(SC) 15. The learned counsel for OPs has argued that if refund is to be made they are entitled to deduct 20% of the amount of the plot. They, however, could not point out any such condition either in Annexure C-1 or Annexure R-3 to deduct any such amount from the one deposited by the complainant. The condition to this effect in Annexure C-4 cannot be enforced against the complainant because she never asked for allotment of plot in Sector-109 and therefore she cannot be punished on both sides-firstly by allotting plot in the Sector in which she had not asked for allotment and secondly by deducting 20% of the deposited amount on her request to seek refund. 16. The complainant has also asked for interest on the amount which the OPs had been withholding unnecessarily. The learned counsel for complainant has referred to various letters issued by OPs which suggest that the OPs are charging interest @ 15% p.a. from its customers. He referred to Anenxure C-4, C-14, C-15 and C-18 which show that the OPs charge interest ordinarily @ 15% p.a. They would ,therefore, be liable to pay interest at this rate to its customers. In view of the above discussion, we are of the opinion that the present complaint must succeed. The same is accordingly allowed. The OPs are directed to refund to the complainant Rs.20,70,000/- alongwith interest @ 15% p.a. with effect from the date of deposit till the amount is actually refunded to the complainant. The OPs shall also pay Rs.one lac as compensation for causing mental and physical harassment to the complainant and adopting unfair trade practice. The OPs shall also pay Rs.10,000/- as costs of litigation. The entire amount shall be paid within 30 days from the date of receipt of copy of the order, failing which they would be liable to pay the same alongwith penal interest @ 18% p.a. with effect from the date of order till its payment to the complainant. Complaint Case No.55/2010 Similarly in complaint case No.55/2010, the OPs are directed to refund to the complainant Rs.20,70,000/- alongwith interest @ 15% p.a. with effect from the date of deposit till the amount is actually refunded to the complainant. The OPs shall also pay Rs.one lac as compensation for causing mental and physical harassment to the complainant and adopting unfair trade practice. The OPs shall also pay Rs.10,000/- as costs of litigation. The entire amount shall be paid within 30 days from the date of receipt of copy of the order, failing which they would be liable to pay the same alongwith penal interest @ 18% p.a. with effect from the date of order till its payment to the complainant. Certified Copies of this order be sent to the parties, free of charge. The file be consigned to record room.
| | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | HON'BLE MRS. NEENA SANDHU, PRESIDING MEMBER | , | |
