Haryana

Panchkula

CC/349/2020

NIRMALA DEVI. - Complainant(s)

Versus

HARYANA SHEHRI VIKAS PRADHIKARAN (EALIER KNOWN AS HARYAN URBAN DEVELOPMENT AUTHORITY). - Opp.Party(s)

SH KAMAL JOSHI.

02 Feb 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	349 of 2020
Date of Institution	:	11.11.2020
Date of Decision	:	02.02.2022

 

 

Nirmala Devi W/o Sh. Om Parkash, R/o House No. 1135, Sector-15, Chandigarh.

 

                                                                           ….Complainant

Versus

1.     Haryana Shehri Vikas Pradhikaran(earlier known as Haryana Urban Development Authority) through its Chief Administrator, Sector-6, Panchkula.

2.     The Administrator, Haryana Shehri Vikas Pradhikaran(earlier known as Haryana Urban Development Authority), Sector-6, Panchkula.       

3.     The Estate Officer, Haryana Shehri Vikas Pradhikaran(earlier known as Haryana Urban Development Authority), Karnal.

                                        …. Opposite Parties

4.     Punjab National Bank, Railway Road, Safidon, Distt. Jind, Haryana.      

 ….Proforma Respondent

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019 (AS AMENDED UPTO DATE).

 

Before:              Sh.Satpal, President.

Dr. Pawan Kumar Saini, Member.

 

 

For the Parties:   Shri Kamal Joshi, Advocate, Counsel for the Complainant.

                        Shri Sikander Bakshi, Advocate, Counsel for the OPs No.1 to 3.

                        Shri Abhineet Taneja, Advocate, Counsel for the OP No. 4.

 

ORDER

(Sh. Satpal, President)

1.             The brief facts of the present complaint are that the OP No. 3 had invited applications for allotment of plot at Sector-33P, Karnal and the Complainant applied for the same vide application dated 30.05.2014. In order to apply for the plot, the earnest money i.e. 10% of the total consideration amount was required to be paid to OPs No.1 to 3 at the very outset. The Complainant approached OP No. 4 to avail the loan facility for the payment of earnest money and after completion of requisite formalities, the OP No. 4 disbursed the amount of Rs. 4,87,400/- to the OPs. The OPs No.1 to 3 did not hold the draw of lots for long period of time due to some litigation. The Bank started levying heavy rate of interest on the earnest money which was got financed by the Complainant from the bank, therefore, the Complainant had to repay the entire loan to OP No. 4. The Ops No. 1 to 3 held the draw of lots on 28.09.2017 wherein the Complainant was declared successful and the residential plot No. 950P, Sector-33P was allotted to the Complainant by OP No. 3 vide letter dated 12.02.2018. In terms of clause No. 5 of the allotment letter dated 12.02.2018, the remaining 15% was to be deposited within 30 days i.e. on or before 13.03.2018. The said allotment letter was sent by the OP No. 3 to OP No. 4. As the loan was already repaid by the Complainant, The OP No. 4 did not inform the Complainant about the aforesaid allotment letter issued by OP No.3. Subsequently, when the Complainant approached to OP No.3, it was informed that the allotment of the said plot has already been cancelled due to non-payment of installment prior to issuing show cause notice to the Complainant and forfeiture of earnest money, in this regard. Thereafter, the Complainant approached bank i.e. OP No. 4 and it came into the notice of the Complainant that before cancellation, the OPs had sent various letters to the OP No.4.

                Thereafter, the Complainant requested the Chairman, HSVP, Panchkula to condone the delay vide request letter dated 31.12.2019(Annexure C-4) but the OP No. 3 rejected the request for condonation of delay. In response to said request letter dated 31.12.2019, the OP No. 3 issued the letter dated 30.09.2020(Annexure C-5) regarding forfeiture of the said earnest money. The letters dated 15.11.2017 (Annexure C-6), 09.02.2018(Annexure C-7) and 09.02.2018(Annexure C-8) were also issued by the OP No. 3. Therefore, due to unfair trade practices, the Complainant has suffered financial loss, harassment and mental agony.  Hence, the present complaint.

2.             Upon notice, OPs No. 1 to 4 appeared through their counsels and filed separate written statement raising preliminary objections. On merits, it is stated by OPs No.1 to 3 that the complainant has suppressed true and material facts and the complaint is not maintainable on grounds of no jurisdiction, barred by limitation, no locus standi. The OP No.1 had invited applications for allotment of residential plots in Sectro-32, part and 33Part, Urban Estate Karnal, the booking for which was commenced on 12.03.2014 and closed on 28.04.2014 and further extended upto 30.05.2014. In terms and conditions of the brochure, it was clearly stipulated that the applicant shall have to deposit 10% of tentative price alongwith application form and after draw of lots 15% price shall have to be paid within 30 days from the date of issue of allotment letter. It was further stipulated that the applicant can seek extension in time for payment of 15% amount as per HSVP Policy. The Complainant applied for allotment of Plot vide application dated 30.05.2014 after understanding the terms and conditions of brochure and earnest money was financed by the Complainant through Bank i.e. OP No.4. The Complainant filled the address i.e. PNB, Railway Road, Safidon, Haryana in the application form dated 30.05.2014 under her own signatures. The earnest money was financed by the Complainant through Bank i.e. OP No.4. The HSVP has framed the policy for the allotment of plots to oustees in lieu of the acquired land and public notices were issued in Dainik Jagran dated 07.02.2014, Dainik Bhaskar dated 08.02.2014 and the Tribune dated 08.02.2014 inviting applications from the oustees of Sector 9 Part, Sector 32 and 33 Part, Karnal whose land was acquired vide award No. 21,22, 23, and 24 dated 21.12.2004. However, there was a typographical error in the advertisement as the applications were not invited in respect of Sector 9 Part, Karnal, therefore, a corrigendum was issued and published in this regard. That vide advertisement dated 05.03.2014, OPs No. 1 to 3 had invited applications from general public for allotment of 1135 freehold residential plots in Sector 32 Part and 33 Part, Karnal in which it was made clear that the oustees claim will be settled firstly. The draw of lots for 899 plots was held on 11.06.2015. Thereafter, draw of lots was fixed for 28.09.2017 by OPs No. 1 to 3 and communication vide memo no. 6415 dated 12.09.2017 was issued to Director, Public Relations, Haryana to publish the notice on 13.09.2017 in Dainik Bhaskar and on 14.09.2017 in the newspaper The Tribune(English). Thereafter, the draw of lots for allotment of plot was held on 28.09.2017 by the OPs No. 1 to 3 wherein plot No. 950P, Sector 33, Karnal was earmarked in favour of the Complainant and vide memo dated 15.11.2017 which was dispatched at the address mentioned in the said application form asking the Complainant to supply certain documents but the Complainant failed to submit the documents in time. Thereafter, vide memo No. 1140 dated 09.02.2018, the Complainant was again informed that the allotment letter dated 12.02.2018 had been sent to the address mentioned in the said application form and she was asked to deposit 15% amount within 30 days from the date of allotment letter i.e. by 13.03.2018. On failure of the Complainant to deposit the 15% amount, the allotment stood automatically cancelled due to non-payment as per regulation. As per HSVP Policy dated 03.08.2007 with regard to condonation of delay in depositing 15% of tentative price, delay beyond one year is not condonable in any case. The representation dated 31.12.2019 was filed with a delay of one year 9 months 19 days and was also not accompanied with any demand draft as per policy.

                On the other hand, On merits, it is stated by OP No. 4 that the complainant has suppressed true and material facts and the complaint is not maintainable on grounds of estoppels, no cause of action and being devoid of merits. It is stated by OP No. 4 that the Complainant has no grievance with respect to the loan facility availed by her from it. The Complainant closed the said loan account on 09.10.2017 under unknown circumstances; therefore, there was no way to communicate the Complainant regarding the said letters sent by the OPs No. 1 to 3.

                Hence, it is submitted by OPs No. 1 to 4 that the complaint is liable to be dismissed against them.

3.             The learned counsel for the Complainant has tendered affidavit of the Complainant as Annexure C-A along with documents as Annexure C-1 to C-8 in evidence and closed the evidence by making a separate statement. On the other hand, the Ld. Counsel for the OPs No.1 to 3 by making a separate statement has tendered affidavit as Annexure R1/A along with documents as Annexure R1/1 to R1/10 in their defence and closed the evidence. The Ld. Counsel for the OP No.4 has tendered affidavit as Annexure R4/A alongwith document as Annexure R4/1 in its defence and closed the evidence.

4.             We have heard the Learned counsels for the parties and gone through the record minutely and carefully.

5.             Admittedly, the Complainant was found successful in the draw of lots held on 28.09.2017 and resultantly, Plot No. 950, measuring 14 Marla, Sector 33-P, Karnal was allotted to her vide allotment letter dated 12.02.2018(Annexure C-2/R1/8). It is also an admitted fact that the said allotment letter was sent by OP No.3 to OP No.4 for onward transmission of the same to the Complainant so as to enable her to deposit the 15% amount of the total tentative price of the plot. Apart from the said allotment letter dated 12.02.2018(Annexure C-2/R1/8), the OP No.3 sent a letter no. 8506 dated 15.11.2017 (Annexure C-6) to the Complainant at the address of the OP No. 4 i.e. Punjab National Bank(hereinafter referred to as Bank) whereby the Complainant was asked to send certain documents etc. to it. It is not disputed that OP No. 4 neither sent the copy of said allotment letter to the Complainant nor conveyed her about the allotment of said plot in her favour.

 6.            The OP No. 4 i.e. Bank has taken the plea, in not forwarding the said allotment letter to the Complainant, that the Complainant had closed the loan account vide which the said plot was financed by it.

                This plea taken by OP No. 4 is not tenable and in our considered opinion, there was a gross error on its part while not forwarding the allotment letter to the Complainant. Admittedly, the OP No.4 had financed the entire amount of earnest money amounting to Rs. 4,87,400/- on 30.05.2014, which was deposited by the Complainant with it on 09.10.2017 and as such, the OP No. 4 has earned a certain amount in the shape of interest during the said period and therefore, the services were availed by the Complainant from OP No.4 in lieu of the consideration paid by her in the shape of interest.

                Apart from above, it is pertinent to mention here that the OP No. 4 i.e. Bank has acted as an agent of OPs No. 1 to 3 by virtue of certain arrangement/tie-up between them and in the said capacity, it was binding upon it to forward all the letters as well as the said allotment letter as received from the OP No. 3 to the Complainant. The relationship of Principal and Agent between the OPs No.1 to 3 on one hand, and OP No. 4 on the other hand is evident from several facts such as the OP No. 4 i.e. Bank was authorized to provide the application form to the applicants, finance the entire earnest money and after taking the filled up application form from the applicant, forward the same to OP No. 3 for including the said applicant in the draw of lots. Further, it is also an admitted factual position that, in the cases of finance of earnest money by the bank, the allotment letter were to be sent to OP No. 4 i.e. Bank for onward transmission of the same to the successful applicant. In the present case, it is found that the OP No. 4 neither forwarded the letter dated 15.11.2017(Annexure C-6), letter dated 09.02.2018(Annexure C-7) and Allotment letter dated 12.02.2018 (Annexure C-2/R1/8) as received from OP No. 3 to the Complainant nor returned the same to the OP No. 3 and thus, the OP No. 4 i.e. Bank slept over all the correspondence made by the OP No. 3 pertaining to the allotment of the said plot in favour of the Complainant. The aforesaid act and the conduct of the OP No. 4 were neither valid nor justifiable from any angle.

7.             The OPs No. 1 to 3 have contested the complaint, apart from merits, on several preliminary objections.

                Vide first objection, the territorial jurisdiction of this Commission has been disputed, which is rejected by us as the offices of OPs No. 1 and 2, who are the higher authorities of OP No.3, are within the territorial jurisdiction of this Commission.

                The next objection is that the complaint is barred by limitation. This objection is also rejected in view of the fact that the Complainant had submitted her required affidavit alongwith application on 04.05.2018(Annexure R1/10) in the office of OP No.3 and thereafter, submitted an application(Annexure C-4) on 31.12.2019 to the Hon’ble Chairman, HSVP, Haryana seeking condonation of delay in the payment of 15% amount of total tentative price, which has been declined by OP No. 3 vide letter dated 30.09.2020(Annexure C-5); thus, the present complaint has been filed within the prescribed period of limitation.

                The next ground is that no legally enforceable contract had come into existence between the Complainant and the OPs No.1 to 3 as the Complainant had failed to accept the offer made by the OP No. 3 vide said allotment letter asking her to deposit the 15% amount within 30 days from the issue of allotment letter dated 12.02.2018(Annexure C-2/R1/8). It is contended that before cancellation of the said plot, there was no requirement of issuance of any notice to the Complainant after the expiry of stipulated period of 30 days and as such, there resulted automatic cancellation of the allotment. In this regard, the Ld. Counsel for the OPs No.1  to 3 placed reliance upon the following case laws:-

(i)             Chaman Lal Singhal Vs. Haryana Urban Development Authority and others, 2009(2) RCR (Civil) 355 decided by Hon’ble Apex Court.

(ii)            Barkha Ram Vs. HUDA and others(CWP No. 11434 of 2014) decided by Hon’ble High Court vide its order dated 28.08.2014.

(iii)            Sushma Bakshi @ Susham Bakshi Vs. Haryana Urban Development Authority and another (CWP No. 13278 of 2011) decided by Hon’ble High Court vide its order dated 16.07.2012.

(iv)           Ravinder Kaur Vs. Haryana Urban Development Authority and others (CWP No. 17867 of 2010) decided by Hon’ble High Court vide its order dated 02.03.2010.

                Apart from above, the Ld. Counsel argued that the mere fact that the Complainant was found successful in the draw of lots does not confer any right to allotment. In this regard, reliance has been placed upon following case laws:-

(i)             Great Mohali Area Development Authority and others Vs. Manju Jain and others, (2010) 9 SCC 157 decided by Hon’ble Apex Court.

(ii)            Ashok Kumar Vs. State of Punjab and others (CWP No. 8110 of 2012) decided by Hon’ble High Court vide its order dated 05.09.2012.

(iii)            Rajinder Kumar Vs. HUDA (CM No. 8673/2012 in CWP No. 2865 of 2009) decided by Hon’ble High Court.

(iv)           Surjeet Kaur Vs. State of Punjab and others 1979 PLR 413 decided by Hon’ble High Court.

                The law laid down in aforementioned cited cases is not disputed but the same is not applicable to the facts of the present case as the Complainant was never informed about the allotment of plot in her favour by OP No. 4 i.e. Bank to whom the OP No. 3 i.e. the Allotment Authority had sent the several letters including allotment letter (Annexure C-6/R1/6, Annexure C-7/R1/7 and Annexure C-2/R1/8).  

8.             On merits, it is contented that the allotment made in favour of the Complainant vide allotment letter dated 12.02.2018(Annexure C-2/R1/8) stood automatically cancelled as the Complainant did not pay the 15% amount of the total tentative price of the plot within the stipulated period of 30 days. It is further argued that as per policy dated 03.08.2007(Annexure R1/9), delay beyond one year cannot be condoned under any circumstances by the OPs No. 1 to 3. The Ld. Counsel further argued that the Complainant was fully aware of the allotment of said plot in her favour as she had submitted the application (Annexure R1/10) alongwith her affidavit on 04.05.2018 in the office of OP No.3. Denying any lapse and deficiency on the part of OP No. 3, the Ld. Counsel contended that the letters (Annexure C-6/R1/6, and Annexure C-7/R1/7) informing the Complainant about her allotment were sent at the address as provided by her in the application form dated 30.05.2014(Annexure C-1/R1/2) and thus, no deficiency can be attributed on the part of OP No.3. Concluding the arguments, the Ld. Counsel contended that the public notices were issued regarding the draw of lots, which was held in the presence of the large number of the public.

9.             Admittedly, the letters dated 15.11.2017 and 09.02.2018 (Annexure C-6/R1/6, and Annexure C-7/R1/7) respectively allegedly intimating the Complainant about the allotment of said plot in her favour were sent to her at the address of the OP No. 4 i.e. Bank which is as under:-

“From:

          Estate Officer,

          HUDA, Karnal

To

          Sh./Smt./Ms. Nirmala Devi

          S/D/W/o  Om Parkash

R/o Punjab National Bank, Railway Road,

          Safidon- 126112”

 

                The OP No. 3 has alleged that the said letter were sent at the address as provided by the Complainant in her application form dated 30.05.2014(Annexure C-1/R1/2). Undisputedly, in the said application form, the aforementioned address has been mentioned but in this regard, no lapse can be attributed on the part of the Complainant as the entire amount of earnest money was financed by the OP No.4 i.e. Bank and thus, the said address was got incorporated in the said application form by the OP No. 4 i.e. Bank so as to safeguard and secure its interest.

10.            At this stage, it may be mentioned here that it is a dream of every person to have a house in any urban/sub urban areas and that a valuable right accrues in favour of the successful applicant as and when, he or she is found successful in the draw of lots. In our considered opinion, the allotment authority i.e. OP No. 3 and the financer i.e. OP No. 4 in the present case cannot be permitted to deprive a successful applicant of his/her valuable right pertaining to the allotment of a plot merely on the basis of sheer inaction and negligence. In the present case, the OP No. 3 sent the letter dated 15.11.2017(Annexure C6/R1/6) at the abovementioned address asking the Complainant to submit certain documents. The desired documents as asked for vide said letter were not received by the OP No. 3 from the complainant and thus, it was binding upon OP No. 3 to enquire from OP No. 4 i.e. Bank whether the said letter has been delivered to the complainant or not. The OP No. 3 did not take the pains to enquire anything about the delivery of the said letter from OP No. 4 as to on which address, the letters dated 15.11.2017 and 09.02.2018 (Annexure C-6/R1/6 and C-7/R1/7) respectively were sent. The OP No. 3 is further found deficient in its services when it forwarded the allotment letter dated 12.02.2018 to OP No. 4 i.e. Bank even without enquiring and ensuring with regard to the delivery of aforementioned letters dated 15.11.2017 and 09.02.2018(AnnexureC-6/R1/6 and C-7/R1/7) respectively.

 11.           Further, the contention of the OPs No. 1 to 3 that the allotment of said plot in favour of the Complainant has rightly been cancelled on account of failure of the Complainant to deposit the 15% amount of the tentative price of the plot within 30 days i.e. upto 13.03.2018 is not tenable in view of the factual as well as legal proposition of the present case. As per the version of OPs No. 1 to 3, an offer of allotment was made to the Complainant asking her to deposit 15% amount alongwith certain documents but undoubtedly the said offer in the present case never reached to the Complainant. As per Section 4 of the Indian Contract Act:-

                    “The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.”

                   In view of above, the cancellation of the said plot was not valid.

 12.           Moreover, the Complainant having come to know about the allotment in question obtained the NOC(Annexure R1/3) on 17.04.2018 from OP No. 4 i.e. Bank as desired by OP No. 3 and thereafter, submitted the desired affidavit in the office of OP No. 3 alongwith an application (Annexure R1/10) on 04.05.2018. As the Complainant had obtained the said NOC from OP No. 4 i.e. Bank on 17.04.2018, we, may, safely, conclude with a reasonable degree of certainty that the matter of allotment came to her notice on or just before 17.04.2018. Calculating the 30 days from 17.04.2018, the Complainant was entitled to deposit the 15% amount upto 16.05.2018 and thus, she had approached the OP No. 3 well within the stipulated period of 30 days. Though the Complainant did not approach the OP No. 3 with the desired demand draft of 15% amount but the OP No. 3 has also not asked the Complainant to submit the desired demand draft of 15% amount. Even, the OP No. 3 has passed no order on the application dated 04.05.2018 (Annexure R1/10) submitted by the Complainant to it. Furthermore, even if it is assumed that OP No. 3 was not empowered to condone the delay on 04.05.2018, then in that eventuality, it was incumbent upon OP No. 3 to refer the matter of the Complainant for condonation of delay to OP No. 2, who is/was, admittedly, empowered to condone the delay upto 90 days from the date of allotment. Therefore, there was gross negligence on the part of OP No. 3 while dealing with the said application dated 04.05.2018 filed by the Complainant alongwith her affidavit.

13.            Apart from above discussion, we agree with the contentions of the Ld. Counsel for the Complainant that the Latin maxim “Qui facit per alium facit per se” which means that the one who acts through another does the act himself applies to the present case. In the facts and circumstances of the present case, the OPs No. 1 to 3 are equally responsible for the error/wrong/negligence committed by OP No. 4 i.e. Bank who acted as their agent. We further agree with the Ld. Counsel for the Complainant that the doctrine of “Respondeat Superior” which means “let the master answer” also applies to the present case. The doctrine is based on the principle of vicarious liability when one acts, under the direction and control of others and commits some negligent act injuring another, then the person who is in superior position is liable for such negligent act. Thus, the said doctrine holds an employer liable for the wrongful acts of an employee or agent. A perusal of the facts and circumstances of the present case shows that if OP No. 4 has not communicated to the Complainant, the OPs No. 1 to 3 are liable for the wrongful acts of its agent.

                The aforementioned discussion leaves no scope of doubt with regard to the lapse and deficiency on the part of the OPs; hence, the Complainant is entitled to relief.

14.            Coming to relief, it is found that the Complainant is ready and willing to pay the outstanding dues to OP No. 3 alongwith interest for delayed payment, if any; and thus, the Complainant has sought the restoration of the said plot in her favour with the quashing of cancellation letter dated 30.09.2020. Apart from it, compensation on account of mental agony, harassment, expenses incurred for pursuing legitimate right and litigation expenses has been sought by the Complainant from the OPs.  Keeping in view the peculiar facts and circumstances of the present case, in our considered opinion, the ends of justice would be met if the OPs No. 1 to 3 are directed to restore the allotment of said residential plot No.950P, Sector-33P, Karnal in favour of the Complainant by permitting her to deposit the 15% amount as well as the balance remaining installment alongwith interest and surcharge as per HUDA policy and it is ordered accordingly. No compensation shall be payable to the Complainant on account of mental agony, harassment as well as litigation charges.

15.            The OPs shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 02.02.2022

 

 

 

             Dr. Pawan Kumar Saini                   Satpal       

                                  Member                           President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          Satpal,                    

President