Chandigarh

DF-II

CC/376/2020

Sh. Harpreet Singh Sidhu - Complainant(s)

Versus

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

Nikhil Saraf

14 Sep 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

U.T. CHANDIGARH

 

 

Consumer Complaint No.	:	376/2020
Date of Institution	:	24.08.2020
Date of Decision	:	14.09.2022

 

                     

            

 

Sh.Harpreet Singh Sidhu s/o Sh.Karampal Singh Sidhu, House No.924, Sector 39-A (Near Punjab Circuit House), Chandigarh -160036.

                 ...  Complainant.

Versus

Greater Mohali Area Development Authority, PUDA Bhawan, Sector 62, SAS Nagar, Mohali, Punjab.

…. Opposite Party.

 

BEFORE:
	SMT.PRITI MALHOTRA,	PRESIDING MEMBER
	SHRI B.M.SHARMA	MEMBER
Argued by:-
	Sh.Nikhil Saraf, Adv. for the complainant None for the OPs.

 

 

PER PRITI MALHOTRA, PRESIDING MEMBER

1.     Briefly stated, the facts of case as alleged by the complainant are that  being eligible, he applied for a 500 sq. yards plot under G-26 category worth Rs.1.25 crores vide Form No.16216 by paying the earnest money of Rs.12.50 lakhs out of which he availed loan of Rs.10 lakhs form the SBI, Chandigarh by paying Rs.27,231/- towards interest/charges to the Bank. The GMADA conducted the draw of lots on 14.06.2018 and uploaded the same on its official website on 15.06.2018.  The name of the complainant as successful candidate figured at Sr.No.SL-18 in the draw of plots declared by the GMADA.  He submitted all the documents for allotment of the plot to the OP. As per the brochure, the LOI was required to be dispatched on 07.08.2018 but the same was sent on 05.11.2018 i.e. after a delay of 90 days. Due to this act of the OP, he had to pay interest on the earnest money for the delayed period of time and also forced him to decide against going ahead with the allotment of the said plot from GMADA. Consequently, vide letter dated 17.11.2018 he submitted his unwillingness to the OP and sought refund of the deposited amount as per Clause 12 of the LOI with a specific request to deduct 5% of the deposited amount i.e. Rs.62,500/- (deposited amount Rs.12,50,000/-). However, the OP vide letter dated 17.1.2018 deducted 5% i.e. Rs.6,25,000/- of the total price of the plot i.e. Rs.1,25,00,000/- against Clause 12 of the LOI. Subsequently, he made representation dated 26.12.2018, followed by reminders dated 18.02.2019 and 01.04.2019 respectively but to no effect. He cleared the loan of the SBI by further taking the personal loan.   It has further been averred that the OP instead of sending the cheque of Rs.6,25,000/- directly to him sent the same to the SBI which again caused him mental agony.  Later on, the OP replied vide letter dated 09.10.2019 that the refund was calculated on the basis of Clause 4 of the brochure and not on the basis of Clause 12 of the LOI.  It has further been averred that while passing the order of deduction dated 17.12.2018 by applying Clause 4 of the brochure, the OP did not provide him any opportunity of hearing. Further, the OP in its reply instead of giving reasons for ignoring Clause 12 of the LOI has stated that they have amended Clause 12 of the LOI and published a public notice in this regard in the Tribune dated 26.12.2018. Surprisingly, the said notice was not published in the newspaper.  According to the complainant, the amending of Clause 12 of the LOI without seeking his objections was illegal and unjustified.   It has further been averred that the said clause cannot be applied with retrospective effect as the case of deduction money was decided by the OP on 17.12.2018, however, the refund cheque was issued on 06.08.2019.  It has further been averred that amending the LOI dated 05.11.2018, issuing public notice dated 26.12.2018, after the representation and reminders of the complainant, amounts to deficiency in service and also indulgence into unfair trade practice on the part of the OP. Alleging that the aforesaid acts of omission and commission on the part of the OPs amount to deficiency in service and unfair trade practice, the complainant has filed the instant complaint.   
2.     In its written statement, the OP while admitting the factual matrix of the case has pleaded that  the LOI was issued on 05.11.2018 and as per Condition No.3 of the brochure, the complainant could seek refund of the amount after draw of lots but before issuance of LOI.  It has further been stated that the complainant being aware of the interest implications of loan amount could have sought the refund of the amount before issuance of LOI.   It has further been stated that the complainant had sought refund of the earnest money vide letter dated 17.11.2018, received on 22.11.2018  and he was asked to deposit the original LOI.  Clause 1 of the LOI provides “The allotment shall be subject to the provisions of Punjab Regional and Town Planning and Development Act, 1995 read with Rules, regulations and policies framed thereunder from time to time as well as the terms and conditions of brochure on the basis of which application was made by you”.  As per the OP, the case of the complainant for refund of the amount was dealt with as per Condition No.4 of the terms and conditions of the brochure, which was approved by the authority and on the basis of which he had applied for the plot after accepting its terms and conditions.  It has further been stated that the order dated 17.12.2018 was passed after the request of the complainant and Clause 12 of the LOI dated 05.11.2018 is not applicable.  It has further been stated that the order dated 17.12.2018 has been rightly and legally passed in terms of Clause 4 of the brochure of the scheme. The remaining allegations have been denied, being false. Pleading that there is no deficiency in service on their part, a prayer for dismisl of the complaint has been made.
3.     The complainant filed rejoinder to the written reply of the OP controverting its stand and reiterating his own.
4.     We have heard the Counsel for the complainant and have gone through the documents on record & written submissions of the parties.
5.     The undisputed facts of the case are that the complainant applied for a 500 sq. yards plot under G-26 category worth Rs.1.25 crores vide Form No.16216 by paying the earnest money of Rs.12.50 lakhs out of which he availed loan of Rs.10 lakhs from the SBI, Chandigarh by paying Rs.27,231/- towards interest/charges to the Bank.  The complainant was successful in the draw of lots  held on 14.06.2018 in respect of allotment of plot at IT City SAS Nagar, GMADA and was issued LOI dated 05.11.2018 along with terms and conditions. As per Clause 12 of the LOI, in case of refusal to accept the offer, such refusal was to be conveyed in writing within 30 days from the date of issuance of the letter of intent and in such an event 5% of the total price deposited was to be forfeited.  However, in case such refusal is received after a period of 30 days from the issue of letter of intent 10% of the total consideration price was to be forfeited.  It is also a proven fact on record that the complainant has conveyed his refusal to accept and applied for refund within 30 days from the issue of the LOI but was refunded Rs.6,25,000/- after deducting 5% of the total sale consideration of the plot instead of 5% of the total deposited amount which is the germane of the dispute between the parties. 
6.     It  has been vehemently argued by the Counsel for the complainant that the deduction, if any, was to be made as per the Clause 12 of the LOI which was issued subsequently whereas the stand of the Counsel for the OP is that as per clause 1 of the LOI, the allotment was subject to the provisions of the Punjab Regional and Town Planning and Development Act, 1995 read with the Rules, Regulations and policies framed thereunder from time to time as the terms and conditions of the brochure on the basis of which the application was made by the allottee and as such the terms and conditions mentioned in the brochure has the prevailing effect upon any terms and conditions of the LOI issued later on. 
7.     However, we are not inclined to accept the submission/argument of the OP because the LOI along with the terms and conditions has been issued subsequently and Clause 1 of the said LOI broadly states as under:-

 ““The allotment shall be subject to the provisions of Punjab Regional and Town Planning and Development Act, 1995 read with Rules, regulations and policies framed thereunder from time to time as well as the terms and conditions of brochure on the basis of which application was made by you”.

         A perusal of the aforesaid Clause reveals that it is having the general impact and at the same time, there is a specific clarification made i.e. specific clause 12 has been incorporated having overriding effect over the general conditions. It states that in case of refusal to accept the offer, such refusal was to be conveyed in writing within 30 days from the date of issuance of the letter of intent. In such an event 5% of the total price deposited was to be forfeited.  However, in case such refusal is received after a period of 30 days from the issue of letter of intent, 10% of the total consideration price was to be forfeited. It is a basic principle of law that specific condition mentioned in the terms and conditions supersedes the general conditions. Besides this, in catena of judgments of the superior courts, it has been held that the terms and conditions specifically mentioned in the contract entered between the parties shall prevail over the general conditions.  Moreover, the OP has failed to place on record alleged newspaper cutting to prove on record that Clause No.12 of the LOI was amended later on. Even for the sake of arguments, it is presumed that any publication regarding amendment of the LOI has been made in any newspaper  even then the alleged amendment has been made after the issuance of the LOI and receipt of the application for refund of the earnest money/representations of the complainant.  In this view of the matter, it is, thus, proved that the OP has committed deficiency in service as well as indulged into unfair trade practice by deducting the amount taking into consideration the general conditions of the brochure instead of Clause 12 of the LOI, which was subsequently issued to the allottee/complainant.

8.     In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The opposite parties are directed as under ;-

1. To refund Rs.5,62,500/- to the complainant along with interest @ 9% p.a. from 06.08.2019 i.e. date of issuance of the cheque by the GMADA till its realization.
2. To pay Rs.10,000/- as composite compensation to the complainant towards mental agony and harassment as well as litigation expenses.

 

This order be complied with by the OP(s), within 45 days from the date of receipt of its certified copy, failing which the awarded amounts shall carry interest @12% per annum from the date of this order till actual payment.

9.     Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

 

Announced 14/09/2022
	Sd/- (PRITI MALHOTRA) PRESIDING MEMBER
	Sd/-
	(B.M.SHARMA) MEMBER