Haryana

Karnal

CC/276/2020

Anil Chaudhary & Ashwani Chaudhary - Complainant(s)

Versus

Haryana Shahri Vikas Pradhikaran Nigam - Opp.Party(s)

Narender Kumar

08 Mar 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                         Complaint No.276 of 2020

                                                        Date of instt. 07.08.2020

                                                        Date of decision:08.03.2021

 

Anil Chaudhary & Ashwani Chaudhary sons of late Shri Harish Chander Chaudhary residents of 1037-1038, Sector-13, Urban Estate, Karnal.

…….Complainants.

 

                                              Versus

 

Haryana Shahri Vikas Pradhikaran Nigam (HSVP) (erstwhile HUDA), Sector-12, Karnal through its Estate Officer.

…..Opposite Party.

 

       Complaint u/s 35 of the Consumer Protection Act, 2019.

       

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary……Member

 

 Present   Shri Narender Kumar counsel for complainants.

                Shri Amit Munjal counsel for opposite party.

                               

                (Jaswant Singh President)

ORDER:                    

 

                This complaint has been filed by the complainants u/s 35 of the Consumer Protection Act, 2019 on the averments that complainants are joint owners of SCF no.135-P, Sector-13, Karnal, which was transferred in their names, vide re allotment letter dated 1^st March, 2006 bearing memo no.2953 by opposite party (hereinafter referred to as OP). Further, Earlier, this property was allotted by HUDA to Ashok Gupta and Smt. Shikha Gupta, after paying the entire consideration of said SCF, the deed of conveyance was executed in their favour through their GPA. There was no outstanding against the price of said SCF, as such the possession certificate and lateron the conveyance deed was executed in their favour.

2.             Further, the present complainants purchased this property from said allottees through their GPA, vide sale deed dated 22.02.2006 bearing vasika no.13246 after obtaining permission to transfer from HUDA in which no amount, in whatsoever was shown outstanding against the property in question. Consequently, HUDA issued re-allotment letter dated 01.03.2006 bearing memo no.2953 in favour of the complainants. Complainants were in need of financial assistance for uplifting their business, as such, the property was offered for mortgaged as security for repayment of loan to be availed from State Bank of Patiala, Sector-13, Karnal and HUDA was permitted to mortgage vide permission dated 10.05.2006. The complainants were in need of more financial assistance and HDFC Bank Limited has offered to extend more finance facility over and above the loan acquired by State Bank of India. The loan amount has been disbursed in which the outstanding amount of loan with the State Bank of india has already been deposited by HDFC Bank on behalf of complainants and for further processing balance payment, the HDFC has asked the complainants to submit permission to mortgage in their favour, as such, complainants approached the OP to get the permission to mortgage after de-mortgaging the charge of State Bank of India and as such, submitted no dues certificate for needful to be done. The application has out rightly been rejected by the OP after seeing the website of HSVP, in which an outstanding amount of Rs.6,01,385/- is shown. The official of the OP verbally told that this outstanding amount is required to be paid first for getting the permission to mortgage in favour of HDFC Bank. No notice of any outstanding amount was ever served upon the complainants and the outstanding amount, if any, is payable by the previous allottees and not by the complainants. Moreover, no enhancement/notice has ever been served to the complainants, as such showing the outstanding amount against the complainants. At the time of issuance of PTT and PTM OP has never disclosed any pending outstanding amount towards the property in question. In this way there was deficiency in service on the part of the OP. Hence complainants filed the present complaint.

3.             Notice of the complaint was given to the OP, who appeared and filed written version raising preliminary objections with regard to territorial jurisdiction; locus standi; cause of action and concealment of true and material facts. On merits, it is pleaded that the SCF no.135, Sector-13, Urban Estate, Karnal, was allotted to Shri Ashok Gupta and Smt. Shikha Gupta in an open auction and being the highest bidder, vide allotment letter no.8305 dated 12.06.2003 for a sale consideration of Rs.33,63,000/-. The said allottees had deposited 10% of the total price of the SCF i.e. Rs.3,40,000/-at the time of auction and as per condition no.4 of the allotment letter 15% i.e. Rs.5,00,750/- were to be deposited by them within one month from the date of acceptance of bid and the same was deposited on 17.06.2003 whereas the remaining 75% of the tentative price i.e. Rs.25,22,250/- were to be paid as per condition no.5.

4.             Further, the aforesaid allottees opted the facility of installment for making the payment of balance 75% of the total price of the SCF and as such the said allottees were allowed to make the payment of Rs.25,22,250/- in 8 half yearly installments alongwith interest at the rate of 11% per annum. The said allottees have taken the physical possession of the SCF site vide letter/memo no.9244 dated 25.06.2003, which was duly acknowledged by these allottees wherein they categorically mentioned that they have seen the SCF and agree to accept the possession. Thereafter, allottees agitated the matter regarding physical possession and filed representation to Chief Administrator. On receipt of the representation, the office of Estate Officer, HUDA, Karnal, has sought a report from the office of Sub Divisional Engineer Electrical Sub Division, vide letter no.13529 dated 09.09.2003. In response to the said letter, the said office has intimated that SCF site was vacated on 24.07.2003, vide letter No.1963 dated 11.09.2003. On receipt of the said report of SDE Electrical Sub Division, the office of Estate Officer, HUDA, Karnal has decided to treat the offer of possession as 25.07.2003 instead of 15.06.2003 and interest was also ordered to be charged w.e.f. 25.07.2003 and the allottees were accordingly informed vide letter No.13860 dated 16.09.2003. Being aggrieved by the said order/letter dated 16.09.2003, the allottees filed an appeal under Section 17 (5) of HUDA Act before Administrator, HUDA, Panchkula and same was decided vide order dated 28.12.2004 and the deemed date of offer of possession was ordered to be considered as 24.09.2004. Aggrieved by the said order, the Estate Officer, filed a revision petition before Financial Commissioner-cum-Principal Secretary, Town & Country Planning and same was partly allowed, thereby treating the offer of possession as 16.09.2003 when the actual communication of vacation of SCF was issued to the allottee. Being aggrieved by the said order, allottees filed CWP No.17823 of 2017 and same is pending for adjudication.

5.             Further, Earlier allottees i.e. Shri Ashok Gupta and Smt. Shikha Gupta filed the complaint before this Commission regarding the possession interest which is also subject matter of present case. That consumer complaint was dismissed, vide order dated 16.07.2008. Aggrieved from this order they filed the appeal before the Hon’ble State Commission, Haryana at Panchkula and the same was dismissed, vide order dated 18.04.2011. It is further pleaded that while transfer of plot present complainants are very well aware of the litigation about the Possession Interest and given Indemnity Bond in this regard and owns the responsibility to pay the same. Now complainants have suppressing this fact from this Commission. It is further pleaded that while issuing the transfer permission it was clearly stipulated that the transfer permission is subject to decision of outcome of revision petition filed by the HSVP against the order of Administrator, HUDA Panchkula dated 28.12.2004. Accordingly re-allotment letter subject to Audit was issued to complainants.  It is further pleaded that the permission to mortgage has been granted by the office of OP and that the complainants have obtained loan amount against the security of said property during the pendency of revision petition filed by OP. But vide order dated 28.03.2017 Hon’ble Financial Commissioner-cum-Principal Secretary, Town & Country Planning partly allowed the revision thereby treating the offer of possession as 16.03.2009 and possession interest was shown due and payable against the properly in question and until and unless the amount due is paid no Permission to Mortgage can be issued as per policy. It is further pleaded that complainants submitted the documents i.e. no Due Certificate for seeking permission to mortgage property in favour of HDFC Bank. However, his application has been rejected since an amount of Rs.6,01,385/- is outstanding on account of possession interest and unless the said amount is paid, the permission to mortgage the said property cannot be granted as per policy. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

6.             Complainants tendered into evidence affidavit of Anil Chaudhary Ex.CW1/A, affidavit of Ashwani Chaudhary Ex.CW2/A, allotment letter Ex.C1, sale deed Ex.C23, letter dated 10.05.2006 Ex.C3, application dated 27.07.2020 Ex.C4, letter dated 21.05.2020 Ex.C5 and Ex.C6, letter dated 17.02.2006 regarding residential commercial plot Ex.C7 and possession certificate Ex.C8 and closed the evidence on 02.11.2020 by suffering separate statement.

7.             On the other hand, OP tendered into evidence affidavit of Naveen Kumar Clerk Ex.OP1/A, auction terms and conditions Ex.OP1, allotment letter Ex.OP2, possession certificate Ex.OP3, letter dated 16.03.2003 Ex.OP4, order dated 28.12.2004 by Chief Administrator Ex.OP5, permission to transfer Ex.OP6, copy of sale deed Ex.OP7, Indemnity Bond Ex.OP8, affidavit of complainant Anil Chaudhary Ex.OP9, re-allotment letter Ex.OP10, order dated 28.03.2017 by Principal Secretary Ex.OP11, order dated 16.07.2008 Ex.OP12, order dated 18.04.2011 Ex.OP13 order dated 11.08.2018 Ex.OP14, affidavit of complainant Ashwani Chaudhary Ex.OP15 and letter dated 10.05.2006 Ex.OP16 and closed the evidence on 03.02.2021 by suffering separate statement.

8.             We have heard the learned counsel of both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for complainants argued that SCF No.135-P, Sector-13, Karnal was allotted by HUDA to Ashok Gupta and Smt.Shikha Gupta and the said property was got transferred by them in the names of complainants vide sale deed No.13246 dated 20.02.2006 and HUDA issued re-allotment letter dated 01.03.2006 in the names of complainants as no outstanding amount was due towards the said property. Complainants were in need of financial assistance for uplifting their business, as such, the property was offered for mortgaged as security for repayment of loan to be availed from State Bank of Patiala, Sector-13, Karnal and HUDA was permitted to mortgage vide permission dated 10.05.2006. He further argued that the complainants are in need of more financial assistance and HDFC Bank Limited has offered to extend more finance facility over and above the loan acquired by SBI. The loan amount has been disbursed in which the outstanding amount of loan with the SBI has already been deposited by HDFC Bank on behalf of complainants and for further processing balance payment, the HDFC has asked the complainants to submit permission to mortgage in their favour, as such, complainants approached the opposite party to get the permission to mortgage after de-mortgaging the charge of SBI and as such, submitted no dues certificate for needful to be done. The application has out rightly been rejected by the OP after seeing the website of HSVP, in which an outstanding amount of Rs.6,01,385/- is shown. He further argued that no notice of any outstanding amount was ever served upon the complainants and the outstanding amount, if any, is payable by the previous allottees and not by the complainants. Moreover, no enhancement/notice has ever been served to the complainants, as such showing the outstanding amount against the complainants is glare example of unfair and restrictive trade practice and it clearly establishes that there is deficiency in service on the part of OP. Hence, prayed for allowing the complaint.

10.           Per-contra, learned counsel for opposite party argued that the SCF No.135-P, Sector-13, Karnal, was allotted through open auction. The Hon’ble Supreme Court in U.T. Chandigarh Administration & others Versus Amarjeet Singh & others 2009 4 SCC 660, it was held that auction purchaser is not a consumer. He further argued that allottees opted the facility of installments for making the payment of balance 75% of total price of the SCF in question and as such, the allottees i.e. Shri Ashok Gupta and Smt. Shikha Gupta were allowed to make the payment of Rs.25,22,250/- in 8 half yearly installments alongwith interest @ 11% per annum. It is made clear that possession of the site in question was offered to the allottees. The allottees have taken the physical possession of the SCF site vide letter/memo No.9244 dated 25.06.2003, which was duly acknowledged by these allottees wherein they categorically mentioned that they have seen the SCF and agree to accept the possession. Thereafter, allottees agitated the matter regarding physical possession and filed representation to Chief Administrator. On receipt of the representation, the office of Estate Officer, HUDA, Karnal, has sought a report from the office of Sub Divisional Engineer Electrical Sub Division, vide letter no.13529 dated 09.09.2003. In response to the said letter, the said office has intimated that SCF site was vacated on 24.07.2003, vide letter No.1963 dated 11.09.2003. On receipt of the said report of SDE Electrical Sub Division, the office of Estate Officer, HUDA, Karnal has decided to treat the offer of possession as 25.07.2003 instead of 15.06.2003 and interest was also ordered to be charged w.e.f. 25.07.2003 and the allottees were accordingly informed vide letter No.13860 dated 16.09.2003. Being aggrieved by the said order/letter dated 16.09.2003, the allottees filed an appeal under Section 17 (5) of HUDA Act before Administrator, HUDA, Panchkula and same was decided vide order dated 28.12.2004 and the deemed date of offer of possession was ordered to be considered as 24.09.2004. Aggrieved by the said order, the Estate Officer, filed an revision petition before Financial Commissioner-cum-Principal Secretary, Town & Country Planning and same was partly allowed, thereby treating the offer of possession as 16.09.2003 when the actual communication of vacation of SCF was issued to the allottee. Being aggrieved by the said order, allottees filed CWP No.17823 of 2017 and same is pending for adjudication. He further argued that while transferring of plot, present complainants were very well aware about the litigation about the possession interest and given indemnity bond in this regard and owns the responsibility to pay the same. He further argued that while issuing transfer permission it was clearly stipulated that the transfer permission is subject to decision of outcome of revision petition filed by HSCP against the order dated 28.12.2004 and re-allotment letter was issued subject to audit. He further argued that permission to mortgage has been granted by the opposite party during the pendency of revision petition. However, application filed by the complainants have been rejected since an amount of Rs.6,01,385/- is still outstanding on account of possession interest and unless the said amount is paid, the permission to mortgage the said property cannot be granted.  Hence, prayed for dismissal of complaint.

11.           Without going into the merits of the complaint, firstly, the question for consideration before us is that whether the complainants fall under the definition of consumer as per Consumer Protection Act, 2019 or not?

                The definition of “consumer” as per Consumer Protection Act, 2019 is defined under Section 2 (7), which is reproduced as under:-

                (7) "Consumer" means any person who—

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

                The property in question owned by the complainants in re-sale vide re-allotment letter dated 01.03.2006 and as per definition of “consumer” in Consumer Protection Act, 2019, a person who obtained any goods in resale do not fall under the definition of consumer.  Furthermore, the complainants have purchased the SCF in question from said Shri Ashok Gupta and Smt. Shikha Gupta vide sale deed No.13246 dated 20.02.2006 and the consideration for purchasing the same was also paid to them nor to the OP. Hence, in both the cases, the complainants do not fall under the definition of consumer. Hence, keeping in view the observations given above, the present complaint is deserved to be dismissed.

12.           Thus, as a sequel to abovesaid discussion, complainants do not fall under the definition of consumers, therefore, the present complaint is hereby dismissed. However, the complainants would be at liberty to approach the competent court of jurisdiction to redressed their grievance, if so advised, and in that case in view of the law laid down Hon’ble Supreme Court in Laxmi Engineering Works Versus PSG Industries Institute (1995) 3 SCC 583. They would be entitled to get the benefit of provisions of section 14 of the Limitation Act, to exclude the period spent in prosecuting the present complaint, while computing the period of limitation prescribed for filing such complaint. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 08.03.2021

 

 

                                                                       

                                                                    President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

 

 (Vineet Kaushik)               (Dr. Rekha Chaudhary)

      Member                               Member