Before the District Consumer Disputes Redressal Commission, Rohtak.

                                                                    Complaint No. : 02.

                                                                   Instituted on     : 03.01.2020.

                                                                    Decided on       : 22.04.2022.

Nisha w/o Sh. Amit R/o H.No.702, Ward No.18, Near Adarsh School, Shastri Nagar Rohtak.

                                                                                                                                                                                      .......................Complainant.

                             Vs.

1.       Haryana Shehri Vikas Pradhikaran (Earlier  HUDA)         through its Chief

          Administrator, Sector-6, Panchkula.

2.       Estate Officer, Haryana Shehri Vikas Pradhikaran, (Earlier  HUDA)

Sector-3, Rohtak.

                                                                   ………….….Opposite parties.

          COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.

BEFORE:  SH.NAGENDER SINGH KADIAN, PRESIDENT.

                   DR. TRIPTI PANNU, MEMBER.

                   DR. SHYAM LAL, MEMBER

Present:       Sh.Gulshan Chawla, Advocate for the complainant.

                   Sh. K.K.Luthra, Advocate for the opposite parties.

                                      ORDER

NAGENDER SINGH KADIAN, PRESIDENT:

1.                Brief facts of the case are that complainant had applied for a residential plot under “GENERAL” category in Sector 21-P at Rohtak vide her application bearing no.0840001324 and had deposited an amount of Rs.747000/- as earnest money with the opposite parties. The complainant was found successful in the Draw of Lots and was given offer of allotment of plot no.53 and she was intimated vide letter no.9938 dated 26.10.2017. The complainant was having option to accept the said allotment as indicated in the aforesaid letter. But due to some personal financial reasons, the complainant was not in a position to accept the said offer of allotment and refused to accept the proposed allotment, vide her letter dated 30.10.2017 received in the office of opposite party no.2 on 30.10.2017, and requested for refund of earnest money. The opposite party refused to refund the earnest money deposited by the complainant, vide its letter bearing memo No.7206 dated 19.07.2018. As per regulation 5(5) of HUDA Regulations, 1978, the complainant is entitled to the refund of full amount of earnest money deposited by her as she had refused the allotment within stipulated time. The complainant requested the opposite parties to refund the amount of Rs.747000/- alongwith interest @ 18% from the date of payment i.e. 15.03.2017 till realization but to no avail. That the act of opposite parties is illegal and there is deficiency in service on the part of opposite parties. As such, it is prayed that the opposite parties may kindly be directed to refund the amount of Rs.747,000/- alongwith interest @ 18% from the date of payment  i.e. 15.03.2017 till realization and also directed to pay an appropriate amount towards compensation, and to pay an amount of Rs.22,000/- towards legal costs to the complainant.

2.                After registration of complaint, notice was issued to the opposite parties. Opposite parties in their reply has submitted that the complainant was successful in the draw of lots and duly intimated vide their office letter no.9938 dated 26.10.2017 to deposit the required documents but the complainant had not deposited the required documents within the prescribed period. It is also submitted that the letter No.7206 dated 19.07.2018 was issued to the complainant. It is further submitted that in Clause 4 of Form “C-R’, it is prescribed that the amount constituting 25% of the total tentative price has to be deposited failing which the allotment shall stand cancelled. Meaning thereby that the successful applicant has to deposit the amount and there is no option with the successful applicant to surrender the plot or to refund the earnest money. Any claim made by the complainant for refund of the earnest money is liable to be rejected as the statutory provisions of Regulations 5(3) more specifically Form ‘C-R’ clearly bar refund of earnest money. Thus the complainant cannot claim the refund of earnest money which is against the statutory norms. Earnest money has rightly been forfeited as per law.  There is no deficiency in service on the part of opposite parties and dismissal of complaint has been sought.

3.                Ld. counsel for the complainant in her evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C6 and has closed her evidence on dated 05.01.2021. Ld. Counsel for the opposite parties has tendered affidavit Ex.RW1/A, documents Ex.R1 & Ex.R4 and has closed her evidence on dated 09.11.2021.

4.                We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.

5.                After going through the file and hearing the parties it is observed that complainant had applied for a residential plot, vide application bearing no.0840001324 and had deposited an amount of Rs.747000/- as earnest money with the opposite parties through Punjab National Bank, which is proved from the Certificate Ex.C1 and is also not denied by the opposite parties. The complainant received a letter memo no.9938 dated 26.10.2017 placed on record as Ex.C2 for completing the formalities for issuance of allotment letter. Complainant vide her letter dated 30.10.2017 placed on record as Ex.C3, requested the opposite parties to refund the earnest money as she was unable to accept the proposed allotment due to some personal reasons.  But the opposite parties vide their letter Ex.C4 & Ex.C5 has refused to refund the money on the ground that as per direction issued by the chief Administrator, HSVP, Panchkula vide letter No.HSVP/CCF/AO-Cash/2018/79057 dated 23.04.2018, there is no provision for refunding earnest money back to her. A thorough perusal of the  letter issued by SPIO Chief Administrator, HSVP, Panchkula vide letter No.HSVP/CCF/AO-Cash/2018/79057 dated 23.04.2018 attached with letter Ex.C4, shows that: “In case applicant refuses to accept the allotment, he shall communicate her refusal by a registered letter within 30 days from the date of allotment letter, failing which the allotment shall stand cancelled without any notice and the earnest money deposited by applicant, shall be forfeited to the authority and applicant, shall have no claim for the damages”. In this regard, it is observed that firstly no allotment letter has been issued by the opposite parties to the complainant till date, secondly the complainant had surrendered the plot within 30 days from the receipt of letter dated 26.10.2017 of the opposite party. Ld. Counsel for the complainant has also placed reliance upon the ratio of law laid-down in First appeal No.930 of 2019 decided by Hon’ble State Commission, Haryana, Panchkula on dated 03.02.2020 in case titled as Estate Officer, HSVP Vs. Rameshwar which is of same sector 21-P, Rohtak, order dated 18.06.2019 of this Forum in case titled as Bhupender Singh Vs. HUDA and order dated 21.11.2019 of Hon’ble High Court of P & H at Chandigarh  in case titled as Prikshit Vs. State of Haryana and others.

6.                It is also observed that as per letter Ex.C6, an information was sought under RTI, by an applicant namely Himanshu from the opposite parties  regarding refund of earnest money and reply to the same was given by the opposite parties vide their letter dated 16.07.2018 which is attached with the emails dated 08.01.2018 and 08.11.2017 and 17.11.2017. As per these emails, it is perused that opposite party No.2 vide its email dated 08.11.2017 sent to opposite party No.1, has submitted that  they have received 45 Nos. applications for surrender of plots before issuing the allotment letter and surrendered plots applications were being received regularly. It is also submitted that allotment letters have not been generated yet and whether surrendered requests of successful applicants was to be dealt before issuing of allotment letter or after generating the allotment letters.. As per email dated 17.11.2017 also, the same facts have been re-iterated. As per email dated 08.01.2018, it is submitted that before issuing of allotment letter the office has received 85 nos. applications for surrender of plots and that the surrendered plots applications were being received regularly after issuing of allotment letter and that 16 Nos. allotment letters have not been generated yet. The applicants were pressing very hard to refund their earnest money against their surrendered plots. Moreover clarification was also sought through the email that whether the earnest money was to be refunded by their office or by opposite party no.2. Meaning thereby, the opposite parties have received applications for surrender of plots before issuing the allotment letter and they were intended to refund the earnest money. In the present case, complainant has also applied for surrender of plot before issuance of allotment letter but till date the amount has not been refunded to the complainant which amounts to deficiency in service on the part of opposite parties. As such opposite parties are liable to refund the earnest money alongwith interest to the complainant.

7.                In view of the facts and circumstances of the case, complaint is allowed and it is directed that opposite parties shall refund the amount deposited by the complainant i.e. Rs.747000/- (Rupees seven lac forty seven thousand only) alongwith interest @ 9% from the date of 45 days after surrender of plot i.e. 30.10.2017 till its realsiation and shall also pay a sum of Rs.5000/-(Rupees five thousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant  within one month from the date of decision.

8.                Copy of this order be supplied to both the parties free of costs.

9.                File be consigned to the record room after due compliance.

Announced in open court:

22.04.2022.

                                                          .....................................................

                                                          Nagender Singh Kadian, President

                                                          ..........................................

                                                          Tripti Pannu, Member.

                                                                        ……………………………….

                                                                        Shyam Lal, Member