Haryana

Karnal

CC/253/2021

Jagdeep - Complainant(s)

Versus

Haryana Shehri Vikas Pradhikaran - Opp.Party(s)

Govind Chaudhan

06 Nov 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No.253 of 2021

                                                        Date of instt. 19.05.2021

                                                        Date of Decision: 06.11.2024

 

Jagdeep son of Shri S.D.Thareja, resident of H.No.602, Sector-13, Extension, Urban Estate, Karnal, Haryana.

 

                                                                        …….Complainant.

                                              Versus

 

Haryana Shehri Vikas Pradhikaran (Erstwhile Haryana Urban Development Authority), through its Estate Officer, Karnal.

 

                                                                        …..Opposite Party.

 

Complaint under Section 35 of Consumer Protection Act, 2019.

 

 

Before     Sh. Jaswant Singh……President.

                Mrs.Neeru Agarwal….Member        

        Mrs.Sarvjeet Kaur…..…..Member

 

 

Argued by: Sh. Ajit Partap Singh, counsel for complainant.

                    Shri R.R.Sharma, counsel for the OP.

 

                     (Neeru Agarwal, Member)

 

ORDER:   

                

            The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averments that OP had floated a tender/advertisement for the shop situated at Sector-4 & 5 , Karnal  in open auction as a freehold shops. The complainant being interested, made an application to the OP in accordance with the procedure alongwith bid amount of Rs.11,70,000/- i.e. 10% of the total sale consideration. A shop No.84, measuring 121 square meters, situated at Sector-5, Karnal, has been allotted vide allotment letter No.21151 dated 11.11.2009 for a total sale consideration of Rs.1,17,00,000/-. As per allotment letter, the complainant had to deposit Rs.17,55,000/- i.e. 15% of total sale consideration amount within thirty days from the date of allotment and rest 75% had to be paid in 8 to 6 half yearly installments. Complainant deposited 15% of total sale consideration vide receipt No.346833 dated 10.12.2009. After depositing the said amount, complainant visited the site and was astonished to see that there was no development of any kind, whereas OP had promised to build attractive construction near the shop. Regarding the said non-development, complainant approached the OP several times and complainant told the OP that area where the shop in question has been carved out, has been illegally occupied by the some poor persons who have even built temporary house at the site of shop in question, despite knowing the said fact, the OP did not take any action and has illegally demanded installment from the complainant, upon which complainant has specifically told the OP to develop the area firstly as promised by them, then the complainant is liable to pay the installment amount. The complainant has moved representation dated 17.01.2011 to the OP for developing the area and for removing the illegal encroachment but till today the site in question is very much the same as allotted to the complainant and the development as promised by the OP to the complainant and to the other shopkeepers are not fulfilled by the OP. When the complainant has not received any response from the OP to the representation dated 17.01.2011 then the complainant had given reminder dated 20.03.2012. All the promises and assurances have not been fulfilled by the OP and even the present complaint has invested a huge amount of money in the shop in question to earn his daily livelihood but till today, in return the complainant has not received any fruitful result. Moreover, again the present complainant has made a request to the OP to develop the area nearby the shop in question, vide letter dated 11.12.2012 and it was told by the complainant that the hard earned money of the complainant has been wasted by the OP by giving a garbage area to the complainant. Op has failed to comply with their own directives and has not developed the site which can be ascertained from the photographs.  The complainant has invested Rs.30,00,000/- in the project of OP but has not received any outcome from the invested amount. When all the efforts made by complainant vent in vain, then the complainant served a legal notice dated 04.04.2013 through his counsel but the OP has not chose to file any reply to the said legal notice. Thereafter, complainant again several times requested the OP, but they did not do so, rather sent a show cause notice dated 25.03.2021 to deposit an amount of Rs.11,90,124/- as penalty upon the complainant for non depositing the installment on time, whereas the facts remains that till today, the area where the shop in question is situated is under developed as allotted to the complainant and is encroached by poor persons who have illegally built temporary house there. Hence, the present complaint.   

2.             On notice, OP appeared and filed its written version raising preliminary objections regarding pecuniary jurisdiction, concealment of true and material facts, complainant is not consumer, maintainability, cause of action, etc. On merits, it is submitted that OP held an open auction of commercial plots situated in Sectors 4, & 5, 16, Karnal on 28.08.2009. Complainant alongwith Shri Jaswinder Pal Singh and GA Dua took part in the said auction and were successful in the bid for SCO No.84, Sector-4 & 5, Karnal. The auction purchasers expressly accepted key terms and rules for the auction by appending their signatures. On 11.11.2009, an allotment letter of SCO for consideration of Rs.1,17,00,000/- was issued to the purchasers. The purchasers opted to pay the balance 75% of the amount in eight half-yearly installments as per the schedule provided in the letter of allotment. Complainant alongwith co-allottees applied for permission to transfer in favour of Ashok Dua, Jaswinder Pal Singh, Deepak Nanda, vide application dated 05.03.2010. The application was examined and some deficiencies were found which were informed to original allottees on 26.04.2010, thereafter, vide letter no.9940 dated 31.08.2010, the complainant/ original allottees were informed to deposit the pending amount of Rs.16,91,940/- on account of installments. The same was not deposited and therefore, the proceedings for resumption was taken against the original allottees when a show cause notice U/s 17 (1) of HSVP Act was issued on 01.12.2020. Thereafter, fresh notice U/s 17 (1) of HSVP Act was issued on 25.03.2021. One frivolous reply to the said show cause notice was submitted by an unknown person namely Jagbir which merited no consideration. Complainant has not come to the Commission with clean hands and has concealed and twisted the true and material facts. The complainant was bound to pay the amount of all installments upto 10.07.2013, however, he failed to do so, as such the OP is entitled to impose the penal interest/penalty as per instructions of HSVP. As per report of account branch dated 04.09.2021, the complainant/co-allottees are in arrears of installment and interest to the extent of Rs.23,80,54,52/-  upto 21.09.2021 and extension fee of Rs.1,16,255-, subject to audit. The complainant was never in a position to make the payment of bid price/ installments as they did not deposit the amount at the time of application for transfer. The complainant is a habitual defaulter and they did not make the payment of due amount which shows their true malafide conduct. The demarcation of the allotted sites are to be obtain by the allottee by making an application. The area was fully developed and the work of development i.e. electrification, sewerage, roads, etc were provided. The complainant had never moved any such representation. In fact, the complainant has failed to deposit the balance sale consideration and he is making false excuse that the area is not developed. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of allotment letter dated 11.11.2009 Ex.C1, copy of receipt dated 10.12.2009 Ex.C2, copy of request letter dated 17.01.2011 Ex.C3, Photographs Ex.C4, copy of request letter dated 11.12.2012 Ex.C5, copy of legal notice dated 29.07.2019 Ex.C6, copy of show cause notice dated 25.03.2021 Ex.C7 and closed the evidence on 09.12.2022 by suffering separate statement.

5.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Dr.Anupma Malik Ex.RW1/A, copy of terms and conditions of auction Ex.OP1, copy of signature of consumer on terms and conditions Ex.OP2, copy of application for transfer Ex.OP3, copy of letter dated 31.08.2010 Ex.OP4, copy of notice U/s 17 (1) of HSVP Act, Ex.OP5, copy of account statement Ex.OP6, copy of photograph Ex.OP7, copy of allotment letter Ex.OP8, copy of order dated 07.12.2011 Ex.OP9 and closed the evidence on 11.10.2023 by suffering separate statement.

6.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that the complainant being successful bidder in the auction allotted a shop No.84, Sector-5, Karnal. Complainant has made payment of Rs.30,00,000/- to the OP and the remaining 75% amount was to be paid in 8 to 6 half yearly installments. When the complainant visited the site, he was astonished to see that there was no development of any kind, whereas OP had promised to build attractive construction near the shop. Complainant requested the OP several times but all in vain, rather OP sent a show cause notice dated 25.03.2021 to deposit an amount of Rs.11,90,124/- as penalty upon the complainant for non depositing the installment on time, whereas the facts remains that till today, the area where the shop in question is situated has not been developed due to that the complainant had not deposited the remaining installments of the shop in question and lastly prayed for allowing the complaint.

8.             Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued that this Commission has no pecuniary jurisdiction to try and entertain the present complaint. The complainant and other co-allottees accepted the key terms and rules for auction by appending their signatures. Allotment letter of SCO for consideration of Rs.1,17,00,000/- was issued to the purchasers. The purchasers opted to pay the balance 75% of the amount in eight half-yearly installments as per the schedule provided in the letter of allotment. Neither the complainant no co-allottees had deposited the remaining installments as per the payment schedule plan. Hence, a show cause notice U/s 17 (1) of HSVP Act was issued on 01.12.2020 and 25.03.2021. The complainant and co-allottees were bound to pay the amount of all installments, however, they failed to deposit the same, as such the OP is entitled to impose the penal interest/penalty as per instructions of HSVP. The area is fully developed and lastly prayed for dismissal of complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Now, the question arises for consideration is that whether this Commission has pecuniary jurisdiction to try and entertain the present complaint or not?

11.           The OP has alleged that this Commission has no pecuniary jurisdiction as the value of the SCO is more than Rs.1 crore whereas this Commission has pecuniary jurisdiction upto Rs.50,00,000/-.

12.           It appears that the parliament while enacting the Act of Consumer Protection Act, 2019 was conscious of this fact and to ensure that the Consumer should approach the appropriate Consumer Disputes Redressal Commission whether it is District, State or National only the value of consideration paid should be taken into consideration while determining the pecuniary jurisdiction and not value of the goods or services and compensation, and that is why a specific provision has been made in Section 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) of the Consumer Protection Act, 2019 providing for the pecuniary jurisdiction of the District Consumer Disputes Redressal Commission, State Consumer Disputes Redressal Commission and the National Commission respectively.

13.           For ready reference the provisions of Section 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) of the Consumer Protection Act, 2019, is reproduce as under:-

34 (1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of goods or services paid as consideration does not exceed one crore rupees.

47 (1) Subject to the other provisions o this Act, the State Commission shall have jurisdiction a) to entertain (i) complaints where the value of the goods or services paid as consideration, exceeds rupees one crore but does not exceed rupees ten crore

58 (1) Subject to the provisions of this Act, the National Commission shall have jurisdiction (a) to entertain (i) complaints where the value of the goods or services paid as consideration exceeds rupees ten crores.  

Thereafter, vide notification dated 30.12.2021, Ministry of Consumer Affairs Food and Public Distribution (Department of Consumer Affairs), has modified the jurisdiction of District Commission to entertain the complaints where the value of the goods or services paid as consideration does not exceed fifty lakh rupees, State Commission to entertain the complaints where the value of the goods or services paid as consideration exceeds fifty lakh but does not exceed two crore rupees and jurisdiction of the Hon’ble National Commission to entertain the complaints where the value of the goods or services paid as consideration, exceeds two crore rupees.

14.           In the present complaint, the complainant has paid an amount of Rs.30,00,000/- out of total sale consideration of Rs.1,17,00,000/-, therefore, for the purpose of pecuniary jurisdiction the consideration paid shall be considered. In this regard, reliance is placed upon the case titled as M/s Pyaridevi Chabiraj Steels Pvt. Ltd Versus National Insurance Company, Consumer Case No.833 of 2020, wherein Hon’ble National Consumer Commission, New Delhi, has held that  from a reading of the of Section 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) of the Consumer Protection Act, 2019 it is amply clear that for determining the pecuniary jurisdiction of the District Commission, State Commission or National Commission the value of the goods or services paid as consideration alone has to be taken and not the value of the goods or services purchased/ taken. Hence, this Commission has jurisdiction to try and entertain the present complaint.

15.           The complainant has alleged that OP has failed to complete the development work at the site. On the other hand, the OP has alleged that site in question has been fully developed. In order to prove his case, the complainant has placed on file allotment letter Ex.C1, receipt dated 10.12.2009 Ex.C2, request letter dated 17.01.2011 Ex.C3, photographs Ex.C4, request letter dated 11.12.2012 Ex.C5, legal notice Ex.C6 and show cause notice dated 256.03.2021 Ex.C7. From the photographs Ex.C4, it is crystal clear the OP has not completed the development work at the spot. On the other hand, the OP has alleged that development has already been completed at the site. The OP has placed on file copy of photograph of the site Ex.OP7, from the said photo it has not been proved that OP has developed the area as per the terms and conditions of the allotment letter and that it has removed the illegal encroachment over the shop in question.

16.           If we evaluate the basic averments raised in the complaint and its reply thereto including the contentions raised by learned counsels, various facts admitted by both the parties can be enumerated that complainant and co-allottes were allotted SCO No.84 in Sector 5, Karnal for a sum of Rs.1,70,00,000/- during an open auction since they happened to be the successful bidder. Thereafter complainant and co-allotttes tendered initial ten and another fifteen percent of the auction price as per the terms and conditions enshrined in the allotment letter.

17.           As per clause 6 (i), of the allotment letter Ex.C1 and Ex.OP9, the opposite parties were under a bounden duty to deliver the vacant possession of the site/building to complainant after the completion of development work in the area. For ready reference, the said clause is reproduced as under :-

6 (i) The possession of the site/building will be offered to you after completion of the development works in the area, which means only the basis services like water supply, sewerage, electricity and roads upto the WBM shall be provided at the time of auction/allotment and finishing works like have premix carpeting and pavements etc. will be done only after 50% shop owners in the area have completed the construction, in the case of building or un-development land, the possession shall however be delivered within 90 days from the date of issue of this letter.   

18.           From the above condition, it is evident that it is the opposite party, who faltered in the matter by not offering the vacant possession of the plot and by not completing the development work. Legally speaking, as per factual matrix of the case, the opposite party was under a bounden duty to deliver the vacant possession of the site after completion of development work. However, there is nothing on record to show that development work has been done at the site and OP has removed the illegal encroachment over the shop in question. The best evidence with the OP to prove its case was to examine or tender the affidavit of the shopkeeper of the area but the OP did not do so. Moreover, the OP has also not placed on record report of the Executive Engineer of the PWD and any other department from which it can be ascertained that actually the development at the spot has been completed.

19.           Upon the failure of the opposite party to comply with the said term, obviously it is the complainant and co-allottees, who are at the receiving end, as their dream of having their SCO has been shattered. Without any justifiable cause, the opposite party slept over the matter and did not complete the development work at the site. Even till today, there is nothing on record that any tangible and genuine effort could be made by opposite party to complete the development work and deliver the vacant possession of the plot to complainant and other co-allottees by removing the obstacles. The negligence, lethargy and callous attitude of the opposite party is highly condemnable, which shows the autocratic way of their functioning.

20.           We are shocked to see the indifferent and callous attitude of opposite party in the matter, who have monopoly, in Haryana, being the main department, engaged in the allotment of plots. The complainant and co-allottes cannot be allowed to suffer by endlessly waiting for the delivery of possession of the SCO to them. We also cannot overlook a huge financial set back to the complainant, upon the failure of the opposite party to deliver the possession of the plot of the complainant and co-allottees.

21.           This is more so as the Consumer Protection Act, 2019 is a consumer centric and beneficial legislation enacted by the Legislature to protect and preserve rights of ultimate consumers against the might of the sellers and service providers. So even if complainant and co-allottees could not pay up the remaining outstanding amount towards the auction price of the disputed shop except what all was tendered towards its cost comprising twenty five percent thereof but at least his inability in this regard should not be taken as to initiate vindictive action against him. Meaning thereby, if complainant and co-allottees seeks some more time to catch up with the payment schedule which they are already trailing then complainant’s effort or courage to this effect should be looked and taken as something positive and at least much not be ridiculed and be dismissed being non-serious altogether. Infact a genuine request and a humble offer in this way should be considered sympathetically and accepted also instead of snubbing the same outrightly. Impossible objective at times becomes feasible with honest deliberations. Perhaps the natural justice will also support the endeavour in this regard. Therefore, instead of rushing for the revoking of the deal altogether a since effort put forth by the complainant should be given a chance to succeed. So in such a scenario the best for both the parties will be to sit and put in their heads together and hammer out some equitable solution acceptable to both.

22.           Moreover, in the present complaint, not only the OP is at fault by not completing the development work, rather the complainant and co-allottees are also at fault by not paying the remaining installments of sale consideration of the shop in question. Therefore, the OP is not entitled to impose penal/compound interest on the remaining amount of sale consideration and the complainant is not entitled for compensation on account of mental agony and harassment and litigation expenses.             

23.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to handover the physical possession of the shop in question to the allottees as per allotment letter Ex.C1, on receipt of remaining amount of the sale consideration from them alongwith simple interest. It is made clear that in case OP is not in a position to handover the physical possession of the shop after completion of development work within stipulated period, then the OP is directed to refund the deposited amount i.e. Rs.30,00,000/- to the allottees alongwith interest @ 9% from the date of filing of complaint i.e. 19.05.2021. This order shall be complied within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced

Dated: 06.11.2024

                                                              President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Neeru Agarwal)                (Sarvjeet Kaur)

        Member                          Member