Punjab

StateCommission

CC/178/2018

Surjeet Bedi - Complainant(s)

Versus

Greater Mohali Area Development Authority (GMADA) - Opp.Party(s)

Baldev Singh Sodhi

04 Feb 2019

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

 

                   Consumer Complaint No.178 of 2018

 

 

                                                          Date of Institution   : 12.03.2018            

                                                           Order Reserved on : 25.01.2019

                                                          Date of Decision     : 04.02.2019

 

 

Surjeet Bedi, age about 78 years, d/o late Sh. Manmohan Singh Bedi, mother of Vir Chakra Awardee Late 2 Lt. Amardeep Singh Bedi, resident of 206/122, Avas Vikas Colony, Civil Lines, Bareilly-243001.

                                                                                                                     ….Complainant

 

                                      Versus

 

1.       The Chief Administrator, GMADA, PUDA Bhawan, Sector 62, Sahibzada Ajit Singh Nagar, Mohali (Punjab).

 

2.       The Estate Officer (H) , GMADA , PUDA Bhawan, Sector 62, Sahibzada Ajit Singh Nagar, Mohali (Punjab).

 

                                                                                  ….Opposite parties

 

 

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

              Shri. Rajinder Kumar Goyal, Member.

 

Present:-

For the complainant         :  Sh.B.S Sodhi, Advocate

          For opposite parties         :  Sh.Anuj Kohli, Advocate

         

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

The  complainant has filed this complaint  U/s 17(1) (a) of the  Consumer Protection  Act 1986 (in short the "Act) against OPs  on the allegations that  she    was declared successful allottee in the draw and  was allotted Type 3 

 Flat in Purab Apartments under reserve category of Gallantry Award Winnes/Vir Chakra Personnel (Code G3) Category and issued Letter of Intent, vide no.GMADA/2829 dated 23.05.2012 on the basis of her form no. PUR000197 for flat of Type 3. She paid single installment scheme under Plan A  with a discount of 5%. She paid 30% payment of the apartment  i.e. Rs.13,80,000/-  being 20% of price within prescribed time i.e. before 22.06.2012. The balance amount of Rs.42,60,750/- being 65% of amount was paid on 21.09.2012 and thereby she paid total sum of Rs.63,30,750/- to complete 95% of payment, which was paid up to 21.09.2012. She applied for loan from Bank, but OPs have not issued letter of intent to her and there was thus delay in sanctioning of loan to her for want of allotment letter. 61 days’ time was thus lost in the meanwhile in getting loan sanctioned from the Bank due to deficient act of OPs in not giving her allotment letter till 61 days. 61 days has to be calculated from due date of payment which was 22.07.2012 within 60 days from the date of LOI and payment was realized by GMADA on 21.09.2012. The complainant did not waste any other time in making required 65% payment, so as to get the rebate of 5% being offered for opting plan A of the scheme. OPs with malafide intention changed the plan of payment from Plan A to Plan B of complainant without her consent and without giving an opportunity of being heard and also demanded Rs.6,57,360/- from her, vide letter no.45834 dated 03.10.2016 as outstanding amount towards 95% payment under Plan B. OPs violated the rules and regulations of Punjab/Regional and Town Planning and Development Act 1995 as well as Rule 2.3(ii) of Letter of Intent, according to which 18% interest could be charged for the period of delay. OPs illegally withheld the amount of Rs.63,30,750/- of complainant for a period of 61 days by changing the Plan from A to Plan B unilaterally. The money was required to be refunded with the intimation that money has not been accepted under Plan A to complainant.  The amount was received on 21.09.2012 and first installment for Plan B was due on 23.11.2012. She had to pay Rs.33,162/- to her banker as EMIs. Shifting of an allottee from Plan A to Plan B is an illegal by OPs. The complainant sent various letters and email to OPs to correct her ledger  and payment schedule from Plan A to Plan B, but to no effect. She was allotted Type 3 dwelling unit under the above scheme and letter of intent was issued to her, vide GMADA office letter no.EO/2012/2829 dated 23.05.2012. She paid third installment of Rs.42,60,750/- as per Plan A, but she was astonished to see her online ledger in 2015 showing outstanding amount from her. She has been forced to pay double penalty due to deficient act of OPs. The possession was to be delivered up to 22.05.2015 to her and in case OPs failed to deliver the possession within stipulated period, allottee shall have the right to withdraw from the scheme by moving an application to Estate Officer. After considering the request of the complainant for withdrawal, OPs refunded the amount of Rs.55,70,333/- , vide cheque no.662688 dated 07.09.2017 drawn on Allahabad Bank Mohali out of the total amount of Rs.63,30,750/-. She sent legal notice upon OPs on 27.11.2017,  but to no effect for settlement of the claim. The complainant has filed complaint praying for below noted directions against OPs :-

1. The direction /order be issued to OPs to shift the plan from B to A as complainant originally opted for plan A.
2. OPs be directed to refund the total deposited amount along with interest @ 18% per annum compounded annually from the date of deposit of earnest money till the actual payment i.e. an amount of Rs.55,70,333/- upto 21.0o9.2017 along with future interest @ 18% annual compounding from the date of payment till actual payment.
3. OPs be directed to pay short payment of Rs.7,60,417/- as part of principal amount paid by complainant along with interest @ 185 per annum.
4. OPs be directed to pay Rs.8,00,000/-  as compensation for mental harassment and Rs.1,00,000/- as cost of litigation.

2.            OPs appeared and filed written statement and contested the complaint of the complainant by raising preliminary objections that there is no deficiency in service and unfair trade practice on the part of OPs. The complex questions of facts and law are involved in the present case, which cannot be decided in summary manner by Consumer Forum. The complainant has purchased flat for investment purposes only. The letter of intent dated 23.05.2012 contains an arbitration clause for settlement of the dispute between the parties, hence consumer complaint is not maintainable. This Commission has no pecuniary jurisdiction to try the complaint and hence it deserves to be dismissed. As per clause no. 2.2 of letter of intent, allottee can deposit 65% amount under Plan A or Plan B with regard to 5% rebate within 60 days from the date of issuance of letter of intent. Under Plan A, 65% amount can be paid along with 12% interest per annum in six half yearly installments.  In this case, allottee/complainant had not deposited 65% amount within 60 days from the issuance of LOI, so amount deposited by the allottee after 60 days could have been considered only under Plan B.  As per conditions of LOI, amounts deposited by the allottee were considered and adjusted towards Plan B by OPs. The complainant has not deposited the amount after September 2012 and letter dated 03.10.2016 was sent to complainant to produce proof/receipts of having deposited the amount of 95% due upto 12 months. OPs denied any loss caused to complainant as well as any deficiency in service on their part. OPs prayed for dismissal of the complaint by denying the averments of the complainant that no substantial work was done by OPs or possession could not be given by them within 36 months fixed period. OPs prayed for dismissal of the complaint.

3.            The complainant tendered in evidence her affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-12 and closed the evidence. As against it; OPs tendered in evidence affidavit of Mahesh Bansal Estate Officer (Housing) of OPs as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-5 and closed the evidence.

4.            We have heard learned counsel for the parties and have also examined the record of the case.

5.            The complainant seeks direction to OPs for wrongly shifting her from Plan A to B and thereby sought direction to OPs to refund the total deposited amount with interest @ 18% per annum compounded annually from the date of deposit till actual payment up to 21.09.2017 along with future interest @ 18% per annum by her. The complainant also seeks payment of Rs.7,60,417/-  as deficient part of principal amount and Rs.8 lac as compensation for mental harassment and Rs.1 lac for cost of litigation. The pleadings of the parties have been perused by us with able assistance of counsel for the parties and the  record is required to be adverted to for proper adjudication of the matter in this case. The complainant filed her affidavit Ex.C-A in support of her case, as pleaded in the complaint. Letter of allotment was issued by OPs to complainant on 23.05.2012 Ex.C-1 on the record. This is a fundamental document governing the relationship between the parties by laying down specific terms and conditions therefor. The tentative price of the flat/apartment is Rs.69 lac as agreed  upon between the parties  and detailed in letter of intent Ex.C-1 on the record. OPs allotted Type 3 apartment in Purab Premium Apartments in Gallantry Award Winners /Vir Chakra Category in Sector 88 SAS Nagar Mohali to complainant. Clause 2 of this letter of intent deals with payment schedule, which is reproduced as under :-

2 PAYMENT SCHEDULE

2.1 For initial 30%

i)            Payment of Rs.1380000/- (Thirteen Lakh Eighty Thousand Only) being 20% price of the apartment is to be made by 22.6.2012 to complete 30% of the apartment.

ii)            In case of failure to make the payment within stipulated period, the amount paid shall be refunded with 10% deduction and allotment cancelled. However, this period can be further extended up to 30 days with 205 penalty, up to 60 days with 3% penalty and up to 90 days with 5% penalty on prior written request.

1. PLAN –A

A sum of Rs.4260750.00 (Forty Two Lakh Sixty Thousand Seven Hundred Fifty Only) being balance 65% of tentative price of apartment within 60 days of the issue of LOI with a rebate of 5% on the balance amount payable.

PLAN B

A sum of Rs.4485000.00 (Forty Four Lakh Eighty Five Thousand Only) being balance 65% of the tentative price can be paid with 12% interest in 6 half yearly installments from the date of issue of LOI. Payment schedule mentioned as under :-

	Installments No.	Due Date	Principal Amount		Total amount payable
		23 Nov - 2012
		23 May- 2013
		23 Nov-2013
		23 May- 2014
		23 Nov- 2014
		23May- 2015

 

It is, thus, evident from perusal of this plan of payment between the parties, that complainant opted for Plan A for payment of the amount. The complainant paid initial amount of booking to OPs and was required to pay 65% of the tentative price within 60 days of issuance of letter of intent with rebate of 5% of balance amount payable. The complainant was required to pay the amount of Rs.65% to OPs within 60 days from 23.05.2012 the date of Letter of Intent. The date of letter of intent  is 23.07.2012. The complainant committed default of two months in making payment to OPs, whereupon OPs shifted the complainant from Plan A to B in this regard. The grievance of the complainant is that she has been shifted by OPs from Plan A to Plan B in an arbitrary manner without her consent. OPs wrote letter Ex.C-7 to complainant on 15.02.2016  that since she failed to deposit 65% of balance amount in Plan A within 60 days from issue of LOI, hence she would be considered under Plan B of LOI only. OPs issued this letter to complainant without any request of complainant at her end. The version of OPs in this case is that since complainant failed to pay 65% within 60 days in Plan A, hence she could not be considered in Plan A and stands shifted to Plan B as per Clause 2.2. of LOI.

6.                From careful appraisal of material evidence on the record , we find that shifting of complainant from Plan A to B under Clause 2.1 (i) of LOI by OPs is illegal and arbitrary by OPs. Clause 2.3 of letter of intent further lays down that delays in payment of installments shall result in cancellation of the allotment. However, on request establishing genuine grounds, delays up to 12 months can be condoned by the Estate Officer by charging 18% interest for the period of delay.  Delays beyond 12  months shall not be condoned under any circumstances and shall result in cancellation of allotment and refund of the amounts paid, after forfeiture of 10% of the amount. Possession shall not be handed over till all dues are cleared by allottee to OPs. There was delay only of two months in making payment of 65% on account of non-sanctioning of her loan and it was genuine ground and OPs could have condoned it uptil 12 months days under Clause 2.3 (ii) of LOI by charging 18% interest for the period of delays from allottee. Consequently, the act of OPs is held to be illegal in shifting the complainant from Plan A to B unilaterally.  The complainant seeks refund of her amount due to inability of OPs to deliver the possession of apartment /unit to her within stipulated period. The plea of the complainant is that OPs have raised no substantial construction work on the site despite lapse of 36 months period, as prescribed in LOI. Clause 3 (ii) of Letter of Intent Ex.C-1 enjoins upon OPs to deliver the possession within a period of 36 months from the date of issue of LOI dated 23.05.2012 and stipulated period of delivery  of possession to be expired on 23.05.2015. The complainant paid sufficient amounts to OPs, but it was bounden duty of the OPs to develop the project as well in the scheduled time. The affidavit of the complainant is to the effect that OPs have not raised any sufficient construction in the project nor carried out any development activity. It is for OPs to rebut the above assertion of the complainant. Ex.OP-1 is letter dated 03.10.2018 addressed to complainant by Estate Officer for cancellation of letter of intent. Ex.OP-2 is proceeding. Ex.OP-3 is letter considering the complainant in Plan B and Ex.OP-4 is rejection of representation of the complainant. Nothing could be made out from the above referred evidence including affidavit of the Estate Officer that OPs completed the project. OPs have not placed on record any completion certificate issued by the Superintending Engineer of GMADA to the effect that project has been completed by OPs within time as required by rules. There is no evidence on record that sewerage work, electricity work , road work and other basic amenities have been provided therein in the project by OPs in the scheduled time. Consequently, the evidence of the complainant remained unrebutted by OPs that project has not been completed within scheduled time by OPs justifying the complainant to seek refund of the deposited amounts by her.

7.                Since OPs have not delivered the possession to complainant within three years under Clause 3 (ii) of the LOI , hence OPs are deficient in service, thereby entitling the complainant to seek the refund of the amount. The deduction of amount by OPs to the tune of Rs.10% of total amount of consideration is unjustified, unauthorized and uncalled for. The complainant has already received the amount of Rs.55,70,333/- uptil 21.09.2012 from OPs in this case.

8.                Consequently, we accept the complaint of the complainant by directing OPs to pay the balance entire amount to complainant with 8% interest compounded annually thereupon in this case as per  Clause 3(ii) of Letter of Intent Ex.C-1. OPs shall also pay 8% interest compounded annually over refunded amount of Rs.55,70,333/- to complainant, which has already been received by her under Clause 3(ii) of LOI  Ex.C-1. The complainant is also entitled to composite amount of compensation of Rs.60,000/- for mental harassment and cost of litigation.

9.                Arguments in this complaint were heard on 25.01.2019 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

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

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                               

                                                              (RAJINDER KUMAR GOYAL)

                                                                                MEMBER

February 4, 2019                                                           

(ravi)