Haryana

Ambala

CC/404/2022

MUKESH JAIN. - Complainant(s)

Versus

HARYANA URBAN DEVELOPMENT AUTHORITY . - Opp.Party(s)

BALDEV SINGH ,CLERK

01 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	404 of 2022
Date of Institution	:	03.11.2022
Date of decision	:	01.02.2024

 

1. Mukesh Jain aged about 47 years son of Sh. Ramesh Raj Jain,
2. Reena Jain aged about 45 years Wife of Sh. Mukesh Jain,

Both Resident of House No-491, Sector-8, Urban Estate, Ambala City.

          ……. Complainants

                                                Versus

1. Haryana Urban Development Authority through its Estate Officer, HUDA Office, Sector-8, Ambala City now HSVP.
2. Haryana Urban Development Authority through ITS Administrator, Panchkula.

                                                                                                   ….…. Opposite Parties

Before:       Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Sandeep Sachdeva, Advocate, counsel for the complainants.                                                                                                                      Shri Chandeep Bindra, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To return an amount of Rs.2,53,976/- along with interest @ 18% per annum.
2. To pay a sum of Rs. 1,00,000/- on account of loss, harassment, pain, agony suffered by the complainants.
3.  To pay Rs. 1,00,000/- as uncalled for litigation.

Or

Grant any other relief which this Hon’ble Commission deems fit.

 

2.           Brief facts of the case are that in the year 2009, the complainants had purchased House No-491, Sector-8, Urban Estate, Ambala City from its owner. As per the policy of the OPs, no house can be transferred or sold to the next owner/purchase without the NOC/NDC. However, at the time of purchase of the said house, the OPs had issued the said NOC/NDC, in favour of the complainants.  However, thereafter the OPs vide letter dated 07/06/2022 demanded an amount of Rs.2,53,976/- i.e. after a period of more than 13 years, which is an unfair trade practice. OPs gave NOC/NDC in the year 2009 and thereafter in the year 2011, they also permitted the complainants to mortgage the house in question with SBI and thereafter demortgaged it in 2017 without raising any demand.  However, thereafter, when the complainants were in dire need of money to expand their business, they again wanted to mortgage their said house with the bank, so that they can get sufficient amount for the same, but, the OPs demanded the amount of Rs.2,53,976/- on account of balance payment since 24/04/2008 vide Offer letter dated 07/06/2022 Memo No- 1238. Though this demand was illegal, yet, because the complainants were in the dire need of money and were having no other source, as such, they paid the said amount under protest on 21/07/2022 and as such, the OPs are legally bound to return the said amount with interest to the complainants.  Hence, the present complaint.
3.           Upon notice, OPs appeared and filed written version wherein they raised preliminary objections to the effect that the complaint is not maintainable before this Commission and should be decided by Arbitrator etc. On merits, it has been stated that Plot No. 491 Sector-8, Urban Estate, Ambala City was originally allotted to Shri Ashwani Kumar son of Shri Rajinder Paul Singla vide office Memo No. 8192 dated 12.04.1989. Thereafter the said plot was again re-allotted in the name of complainants- Mukesh Jain and Smt. Reena Jain wife of Mukesh Jain co-allottee vide office Memo No. 19480 dated 06.11.2009. The  OPs  issued the NOC/ NDC regarding the plot in question and in the NDC dated 06.11.2009 it is clearly mentioned that this certificate is subject to audit. The OPs had issued a penalty notice bearing Memo No.7995 dated 24.04.2008 to Ashwani Kumar previous owner of the plot in question, but inadvertently the said notice was not updated in the PPM system against the said residential plot in question. The complainant had applied NDC and permission to mortgage the plot in question in April, 2022. However permission of the complainants was rejected with the remarks to get entered penalty notice for Rs.99171/- issued vide office memo No. 7995 dated 24.4.2008 and the same was sent to the IT cell HSVP, Panchkula on 23.05.2022 for updation of the said notice, which as updated on 03.06.2022. Final dues occurred to the tune Rs.2,53, 976/- on the account of extension fee etc and the  OPs  rightly issued the notice dated 07.06.2022 of Rs.2,53,976/- upon the complainants. The  OPs  have every right to recover the demanded amount from the complainants. In para no.14 of the allotment letter dated 6.11.2009 it is clearly mentioned that the Authority shall have full rights, power and authority at all time to do through its officer and servants, all acts and things which may be necessary for the purpose of enforcing compliance with all or any of the terms, conditions and reservation imposed and to recover from you as first charges upon the said land/ building, the cost of doing all or any such act and things and all cost incurred in connection therewith or in any way relating thereto. After rejection of the permission, the complainants again applied for NDC, NEC and permission to mortgage, which was approved by the  OPs, as the complainants deposited the amount of Rs.2,53,976/- on account of extension fee etc. Rest of the averments of the complainant were denied by the answering OPs and prayed for dismissal of the present complaint with special costs.
4.           Learned counsel for the complainants tendered affidavit of the complainants No.1 & 2 as Annexure CA and CB alongwith documents as Annexure C-1 to C-22 and closed the evidence on behalf of complainants. On the other hand, learned counsel for the OPs tendered affidavit of Rohit Kumar, HCS, Estate Officer, HSVP, Ambala as Annexure OP-A alongwith documents Annexure OP-1 to OP-7 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the complainants and learned counsel for the OPs and have also carefully gone through the case file.
6.           Learned counsel for the complainants submitted that no such demand of Rs.2,53,976/-, was ever raised by the OPs at the time of issuance of NOC/NDC in the year 2009 qua purchase of the house in question in resale by the complainants and thereafter also at the time of giving permission to mortgage the house in question in 2011  with SBI and thereafter demortgaging the same in 2017.  He further submitted that to the utter surprise, thereafter in 2022, when the complainants were in dire need of money to expand their business and wanted to mortgage their said house, the OPs demanded the said amount of  Rs.2,53,976/- on account of alleged balance payment since 24/04/2008. He further submitted that though this demand was illegal, yet, because the complainants were in the dire need of money and were having no other source, as such, they paid the said amount under protest on 21/07/2022 and as such, the OPs are legally bound to return the said amount with interest to the complainants.
7.           On the contrary, the learned counsel for the OPs while reiterating the objections and submissions made in their reply submitted that in the NDC dated 06.11.2009 it was clearly mentioned that this certificate is subject to audit. He further submitted that the OPs had issued a penalty notice bearing Memo No.7995 dated 24.04.2008 to Ashwani Kumar previous owner of the plot in question, but inadvertently the said notice was not updated in the PPM system against the said residential plot in question. He further submitted that the complainant had applied NDC and permission to mortgage the plot in question in April, 2022, which was rejected with the remarks to get entered penalty notice for Rs.99171/- issued vide office memo No. 7995 dated 24.4.2008 and the same was sent to the IT cell HSVP, Panchkula on 23.05.2022 for updation of the said notice and the same was updated in the PPM system against the said residential plot on 03.06.2022. He further submitted that final dues occurred to the tune Rs.2,53,976/- on the account of extension fee etc and the  OPs  rightly issued the notice dated 07.06.2022 of Rs.2,53,976/- upon the complainants which stood deposited by them and thereafter  necessary permissions were given to them. Rest of the averments of the complainants were denied by the OPs and prayed for dismissal of the present complaint.
8.           First coming to objection taken with regard to Arbitration is concerned, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements/contracts cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard also stands rejected.
9.           The moot question that falls for consideration is as to whether the complainants are entitled to get refund of the amount of Rs.2,53,976/-, already paid by them under protest to the OPs or not. It may be stated here that perusal of record reveals that at the time of purchase of the house in question by the complainants in resale from the original allottee Ashwani Kumar, the OPs vide letter dated 25.09.2009, Annexure C-1 clearly intimated the complainants through their GPA that there is no dues or extension fee pending in respect of the said house. As such, permission qua transfer of the said house in the name of the complainants was accorded to them by the OPs and the said house was realloted in favour of the complainants vide letter dated 06.11.2009, Annexure C-5. Thereafter non-encumbrance certificate dated 21.06.2011, Annexure C-7 was also issued by the OPs, in favour of the complainants. In this certificate it has been written that the complainants have paid Rs.323009.31 out of Rs.323009.31 revised/tentative price of the plot, however the amount is subject to audit.  No Dues Certificate dated 21.06.2011, Annexure C-9 was also issued by the OPs stating that full tentative cost against the plot in question has been received and credited to the account of the complainants subject to audit. Thereafter, on the request having been made by the complainant, the OPs gave NO Objection vide letter dated 01.07.2011, Annexure C-11 to mortgage the house in question with State Bank of India by the complainants, which was demortgaged vide letter dated 06.10.2017, Annexure C-13. Since the complainants were in need of mortgaging the house in question for some personal use therefore they applied to the OPs, but they vide letter  dated 07.06.2022, Annexure C-16 i.e. after expiry or more than 13 years, raised outstanding amount of Rs.2,53,976/- from the complainants, on account of extension fee, due to entering the penalty notice dated 24.04.2008 in PPM System, against the house in question.  It is also coming out from the record that the complainants wrote letter dated 08.06.2022, Annexure C-17, whereby requested the OPs, to re-check his account. As per complainants when the OPs did not pay any heed to their request then they paid the amount of Rs.2,53,976/-, under protest to obtain NOC and Mortgage permission.
10.           It may be stated here that it has not been clarified by the OPs, as to why they kept mum qua such alleged pending penalty of Rs.2,53,976/- against the original allottee, at the time of purchase of the said house by the complainants, in the year 2009 and gave permission to the complainants vide letter dated 25.09.2009 for transfer of this house in their name by endorsing thereon as Dues Rs.0.00 and Extn. Fee 0.00. It has also not been clarified by the OPs as to how, when the alleged penalty of Rs.2,53,976/-, was pending since 2008, then why they gave No Objection vide letter dated 01.07.2011, Annexure C-11 to the complainants to mortgage the house in question with State Bank of India, which was again demortgaged vide letter dated 06.10.2017, Annexure C-13. Since this amount of penalty was allegedly due in the year 2008 against the original allottee, therefore, the OPs should have brought this fact in the knowledge of the complainants, and if they failed to do so, even at the time of purchase of the said house in the year 2009 or even in the year 2011 or even by 2017, when complainants mortgaged and demortgaged the house in question and on the other hand, issued NOC and NDC in their favour, then now how they can demand the said alleged penalty, after the lapse of more than 13 years. No plausible reason whatsoever has been given by the OPs in this regard. Even no reason has been given by the OPs as to why they failed to get audit in respect of the transaction in question within a reasonable period after transfer of the house in question.
11.           No doubt, it was mentioned in the Certificate of Non-Encumbrance dated 21.06.2011, Annexure C-7 that price is subject to audit, but this fact cannot be ignored that the OPs failed to get audit of the said transaction within a reasonable period from the date of purchase of the house in question, by the complainants, in the year 2009.  This fact also cannot be ignored that OPs also gave the permission to mortgage and demortgage the said house in the years 2011 and 2017. Considering the totality of facts, we come to the conclusion that the OPs cannot be allowed to demand the penalty of Rs.2,53,976/-, allegedly due against the original allottee in the year 2008 from the complainants, that too after more than 13 years. The OPs are thus liable to refund the amount of Rs.2,53,976/, deposited by the complainants, under protest.  
12.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:-
    1. To refund the amount of Rs.2,53,976/-, to the complainants alongwith interest @6% p.a. from the date of its receipt onwards.
    2. To pay Rs.5,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.3,000/- as litigation expenses.

                   The OPs are further directed to comply with the aforesaid directions within the period of 45 days, from `the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @ 8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 01.02.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President