Haryana

Panchkula

CC/72/2015

BARUMAL. - Complainant(s)

Versus

HARYANA STATE AGRICULTURAL MARKETING BOARD. - Opp.Party(s)

DIVAY SARUP.

28 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                      

Consumer Complaint No	:	72 of 2015
Date of Institution	:	16.04.2015
Date of Decision	:	28.10.2015

                                                                                          

Barumal s/o Sh.Janki Dass, R/o House No.44, Village & Post Office Pillukhera Mandi, Distt. Jind.

                                                                                        ….Complainant

Versus

1.       The Chief Administrator, Haryana State Agriculture Marketing Board, Sector-6, Panchkula.

2.       The Secretary-cum-Executive Offier, Market Committee, Sector-20, Panchkula.                                                                            

                                                                                      ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

For the Parties:     Mr.Divay Sarup, Adv., for the complainant. 

                             Mr.B.S.Negi, Adv., for the Ops.

 

ORDER

(Dharam Pal, President)

 

1. The complaint has been filed by the complainant with the averments that the Op No.1 invited applications from general public vide prospectus for Rs.500/- for the allotment of shops/floor on free hold basis in the air conditioned, four stories Agro Mall with two tier basement parking in sector-20, Panchkula for various kind of Agro based products, food products and other allied products relating to Agriculture & Horticulture. The draw of lots was held on 07.11.2008. The complainant was successful in draw of lots and was allotted shop No.24 measuring 537 sq. ft. vide allotment letter No.461 dated 16.05.2009. The total cost for the shop was Rs.32,00,750/- and the complainant deposited Rs.8,00,188/- i.e. 25%. The remaining amount i.e. 75% was to be paid in six half yearly installment with 15% interest at the rate of Rs.4,00,093/- scheduled on 15.11.2009, 15.05.2010, 15.11.2010, 15.05.2011, 15.11.2011 and 15.05.2012. Thereafter, the complainant deposited two installments on 15.11.2009 and 15.05.2010. However, the complainant deposited total amount of Rs.16,00,402/-. As per the allotment letter, the possession of the shops would be handed over within short span of time but a period of about 6 years and 5 months had already been elapsed, the physical possession of the shop has not been delivered. The complainant also filed CWP No.13306/2011 before the Hon’ble High Court which was disposed of vide order dated 07.08.2012 in which the Ops stated that the construction work had been allotted to M/s S.G. Constructions on 29.03.2012 with the direction to complete the whole work within a period of 12 months. Thereafter, a period of two and a half year had already passed but the progress has not been done. The complainant sent legal notice dated 11.02.2015 but to no avail. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared and filed written statement. It is submitted that the complainant was allotted a shop No.24 and it has been clearly mentioned in para 7 of the allotment letter that “The possession of the shop/office space shall be offered to you after construction of Agro Mall”. It is submitted that the complainant had paid two installments and rest of four installments are yet to be deposited by the complainant. It is submitted that as per terms & conditions of the allotment letter, allotment would be given when the construction of the Mall would be completed. It is submitted that construction work is under process & as and when the construction is completed, the physical possession would be given to the complainant as per the allotment letter. It is submitted that as per the allotment letter, the physical possession would be handed over only after full construction of the mall and if a person fails to observe or comply with any term and condition of the allotment letter, the constructed shop would be resumed by the Market Committee and his deposited amount should be forfeited. It is submitted that the possession of the shop would also be given only after when the pending installments are paid by the complainant as per norms of the allotment letter. Thus, there is no deficiency in service on the part of Ops and prayed for dismissal of the complaint with costs.
3. The counsel for the complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-3 and closed the evidence. On the other hand, counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A and closed the evidence.
4. We have heard the learned counsel for the parties and have also perused the record carefully and minutely.
5.  Learned counsel for the complainant has argued that the draw of lots was held on 07.11.2008 and the complainant was successful in draw resulting into allotment of shop No.24 measuring 537 sq. ft. vide allotment letter No.461 dated 16.05.2009 to him. The complainant had deposited Rs.8,00,188/- i.e. 25% out of total cost of Rs.32,00,750/-. The remaining amount i.e. 75% was to be paid in six half yearly installment with 15% interest. Thereafter, the complainant deposited two installments on 15.11.2009 and 15.05.2010. It has been further argued that as per the allotment letter, the possession of the shops was to be delivered within short span but the physical possession of the shop has not been delivered even after lapsing of about 6 years and 5 months.  Learned counsel for the complainant has further argued that Ops before the Hon’ble High Court in CWP No.13306/2011 had stated that the construction work had been allotted to M/s S.G. Constructions on 29.03.2012 and the same would be completed within a period of 12 months but a period of two and a half year had elapsed but no progress have been made. In support of his arguments he has placed reliance of judgment passed by Hon’ble Supreme Court of India in case titled as Haryana State Agricultural Marketing Board Vs. Bishamber Dayal Goyal & Ors. Civil Appeal No.3122 of 2006 decided on 26.03.2014.
6. On the other hand learned counsel for the Ops has argued that as per para no.7 of the allotment letter “The possession of the shop/office space shall be offered to you after construction of Agro Mall”. The construction work is under process & as and when the construction is completed, the physical possession would be delivered to the complainant. It is submitted that as per the allotment letter, the physical possession would be handed over only after full construction of the mall and if a person fails to observe or comply with any term and condition of the allotment letter, the constructed shop would be resumed by the Market Committee and his deposited amount should be forfeited. It is submitted that the possession of the shop would also be given only after the pending installments are paid by the complainant as per norms of the allotment letter.
7. The arguments advanced by the learned counsel for the Ops are not sustainable because the Ops have failed to produce any document on the case file to prove that as on which date the construction of Agro Mall would start and on which date the possession would be delivered. It is strange that the draw of lots was held on 07.11.2008 and almost seven years have passed but till today the complainant has not been given physical possession of the shop/office Space No.24 in Agro Mall NVM, Sector 20 Panchkula despite the Ops stating before the Hon’ble High Court in CWP No.13306/2011 that the whole work would take 12 months to complete. From the act and conduct of the Ops one thing is very much clear that they have taken the matter in very casual manner without taking care of the loss of the complainant. Sh.Ajay Singh, Secretary, Executive Officer, Market Committee in his affidavit Annexure RA has stated  the revised plan was approved on 30.09.2011 and the work was allotted to M/s S.G. constructions on 29.03.2012 and the same was likely to be completed within short span of period and very soon the possession would also be granted to the allottees. He had further stated that the grievances of the complainant is likely to be redressed very soon.  The Ops are a government institution and such like act and conduct is quite depreciable and is not expected from them because being a service provider the Ops are obligated to facilitate the utilization and enjoyment of the plots as intended by the allottees. It is very well established on the case file that inaction on the part of the Ops in not providing the requisite facilities  after passing of almost seven years clearly amounts to deficiency in service as the complainant was prevented from carrying out the business resulting into financial loss to him. From the above it is clear that they started the construction according to their own sweet will and utilize the money received from the purchaser for the other purposes. The Ops have even not placed on file any document to show the status of the site and they have even not given any specific date to the complainant on which the possession would be delivered. The complainant had purchased the shop in question under the impression that the possession of the same would be delivered very soon. It is clear case of unfair trade practice. We are, therefore, left with no option but to hold that the Ops have been highly unreasonable in not handing over the possession of the shop to the complainant within a reasonable period of time. It is settled principle of law that he who seeks equity must do equity with others but in the present matter the Ops have not acted as per law rather violated the provisions of CP Act.  Though the Ops have taken a plea that the work was allottee to M/s S.G. Construction on 29.03.2012 but this plea nowhere makes a hole to exonerate them from the liability for which they had charged money from the complainant in lieu of the shop in question. Moreover, the complainant had nothing to do with the M/s S.G.Construction because it was internal matter of the Ops with the said M/s S.G.Construction. The terms and conditions of the allotment letter do not justify the delay in completion of the construction on the aforesaid grounds and therefore, the opposite parties were duty bound to complete the construction and to handover the possession to the complainant. This is not the case of the opposite parties that the construction could not be completed due to any restriction from any court/authority or due to non availability of building material. It appears that even today the construction is nowhere near completion, the complainant is entirely justified in seeking refund of the amount which they had paid to the opposite party because the terms and conditions in the allotment letter have been drafted in a manner having potential to mislead the prospective buyer and not confirming any firm date of handing over the possession of the shop amounts to deceptive practice and falls within the meaning of unfair trade practice as defined under the CP Act. The Ops should have given firm date of handing over possession at the time of taking of 25 % of the amount itself but by not indicating the true picture with regard to the construction status to the complainant the Ops induced them to part with his hard earned money, which also amounts to unfair trade practice. The case law relied upon by learned counsel for the complainant is fully applicable to the case in hand.
8. For the reasons recorded above, we find merit in the complaint and the same is hereby allowed.  The Ops are further directed as under:-

(i)      To make the payment of Rs.16,00,402/- deposited by the complainant alongwith interest @ 9 % from the date of deposit of the amount.

(ii)     To make payment of an amount of Rs.50,000/- to the complainants as compensation for harassment, mental agony, unfair trade practice and deficiency in service.

(iii)    To make the payment of Rs.10,000/- for litigation expenses.

9. This order shall be complied with by the ops within one month from the date of receipt of the certified copy, thereafter, the Ops shall pay the amount at serial No.1 above with the interest @ 12 % per annum form the date of depositing of the amount by the complainants till realization besides complying with the directions at serial No.2 and 3 above. A copy of this order be supplied to both the parties free of costs.  File be consigned to records after due compliance.

 

 

ANNOUNCED

28.10.2015          S.P.ATTRI            ANITA KAPOOR      DHARAM PAL

                            MEMBER            MEMBER                  PRESIDENT

 

 

 

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

 

 

                                 

                                                         DHARAM PAL

                                                          PRESIDENT