Haryana

Panchkula

CC/262/2015

UPMA SOOD. - Complainant(s)

Versus

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

PK KUKREJA

02 May 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.                            

                                                             

Consumer Complaint No	:	262 of 2015
Date of Institution	:	24.12.2015
Date of Decision	:	02.05.2016

                                                                                          

 

Upma Sood daughter of Late Shri Krishan Gopal Anjum, resident of House No.3540, Sector 46-C, Chandigarh.

 

                                                                                       ….Complainant.

 

Versus

 

 

1.       Haryana Urban Development Authority, Panchkula through its Chief Administrator, C-3, HUDA Complex Sector 6, Panchkula, 134109.

2.       Indusind Bank Limited through its Branch Manager/Incharge Sector 11, Panchkula.

                                                                       ….Opposite Parties.

 

 

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

 

 

Before:                  Mr.Dharampal, President.

                             Mrs. Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

 

For the Parties:     Mr.P.K.Kukreja, Advocate for the complainant.

                             Defence of OP No.1 struck off.

                             Mr.Paras Chugh, Advocate for OP No.2.    

 

 

ORDER

 

(Anita Kapoor, Member)

 

1.                The complaint has been filed by the complainant-Upma Sood under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that OP No.1 invited applications for the allotment of free hold basis residential plots in Karnal Sector 32 (Part) and Sector 33 (Part) with booking date 12.03.2014 extended upto 30.05.2014.  The OP No.1 assured that the refund of the earnest money of unsuccessful applicants would be made within a period of six months. The complainant purchased a broacher containing application form and submitted the application No.110021 dated 28.05.2014 with earnest money of Rs.2,11,300/- through demand draft with OP No.1.  The complainant provided her bank account particulars with OP No.1 but due to clerical mistake the bank account number was wrongly mentioned as 26991010002013 instead of 2669101002013. The complainant had also provided IFSC code of the bank as CNRB0002669. She remained unsuccessful under the scheme, therefore, the Ops were under obligation to refund the earnest money within time but they did not make the refund till date forcing her to write letter dated 18.08.2015 to them. The complainant also made many verbal requests and also sent emails to the Ops but to no avail.  The Op No.1 claims that the amount has  been transferred to the authorized OP NO.2 and in case  it is not releasing the amount then OP No.1 is helpless. The act and conduct of the Ops clearly amounts to deficiency in service and unfair trade practice as they illegally retained the amount of the complainant. In evidence the complainant has tendered affidavit and documents Annexure CA, Annexure C-1 to Annexure C-9.

 

2.                On notice, the OPs appeared but Op No.1 failed to file its reply despite availing ample opportunities, hence, its right to file the same was struck off vide order dated  17.02.2016.  OP No.2 contested the complaint by filing written statement wherein several preliminary objections such as non-joinder, cause of action and maintainability etc. It has been submitted that as per the case was put forward by the complainant the amount was to be refunded from HUDA to be deposited in Canara Bank and the amount was remitted  to the bank account  number mentioned by her in the application form. The refund has been made as per the instructions issued by HUDA to the OP No.2. The complainant herself has admitted that due to mistake the bank account number was mentioned wrongly, therefore, question of deficiency in service on its part does not arise at all.  It has been further submitted that on receiving the request from the complainant the OP No.2 had brought the matter to the knowledge of Canara Bank and also requested for the refund of the amount which was credited in the wrong account. The Canara Bank which had already deposited the money in the account number disclosed by the complainant in the application form could recover only sum of Rs.1,70,000/- and accordingly the same was deposited in the bank account of HUDA Sector 32-33, Karnal Scheme Refund account and the Canara Bank can disclose the details of the balance amount but the complainant has not made the said bank as party to the present complaint for the reasons best known to her. The Op No.2 has not received any further instructions from HUDA to credit any amount in the bank account of the complainant.  The OP No.2 has not retained the amount of the complainant rather it all happens due to wrong disclosure of the bank account number by her in the application form and the IFSC code is not helpful to the complainant because of wrong mentioning of account number. Other pleas made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence the, the OP No.2 has tendered affidavit Annexure R2/A.

3.                Having heard the Learned Counsel for the parties and noticing the relatability of the pleas made during the course of hearing to the pleadings at trial, we are inclined to allow the complaint. The reasoning therefor is as under.

4.                That the applicant was a candidate for consideration for the allotment of a free hold residential plot at Karnal and had paid the earnest amount is beyond the pale of controversy. There also is no dispute that the lady luck did not smile at the applicant at draw and no plot came to be allotted to her. It is own presentation by the complainant that the Bank account (Canara Bank where she held the account and from out of which account the earnest amount was forwarded to OP No.1) had been incorrectly mentioned by her.

5.                The pure and simple plea raised by the complainant is that OPs No.1 and 2 have committed deficiency in service by not refunding the entire earnest amount to her. As against it, the plea raised by OP No.2 is that it, on instructions from OP No.1, forwarded the total earnest amount to the Canara Bank but it went into a wrong account which had been, on her own showing, mentioned by the complainant in the relevant application. On being told about the grievance of the complainant, OP No.2 addressed a letter to the Canara Bank, requiring the latter forward the entire earnest amount to OP No.2 but that Canara Bank forwarded a sum of only Rs.170000/- to it (OP No.2).

6.                Insofaras OP No.1 is concerned, its defence was stuck off vide order dated 17.02.2016 which order, inexplicably and interestingly too, has not been challenged by OP No.1 till date. OP No.1, it may be indicated, is a Governmental instrumentality wherein the ‘impersonal litigation’, a nomenclature tagged to the official litigation, has to be compulsively handled at various hierarchical levels. The fact that the written statement on behalf of OP No.1 could not be file inspite of the grant of adequate opportunity therefor ought to be a matter of concern for the organization. The fact that the order was not challenged too is a matter of equal concern due to the lackadaisical attitude on the part of OP No.1. We would say nothing hereinafter on this aspect.

7.                 It is beyond the pale of controversy that OP No.2 forwarded the entire earnest amount to Canara Bank, under instructions from OP No.1. In that view of things, the responsibility of OP No.2 would end up qua this facet. On being told about the mention of wrong account number, the Vice President of OP No.2 addressed a letter to the Canara Bank, for the deposit of that amount to the “Scheme Refund Account” held by OP No.1 at a branch of OP No.2 in Sector-32-33, Karnal which is “the account from where, the payment was originated”. However, the Canara Bank deposited a sum of only Rs.170000/- into the HUDA account. This fact was notified by the Vice President of OP No.2 to OP No.1 vide ae-mail dated 11.08.2015, a copy whereof has been annexed as Annexure R2/6. There is a precise affidavit based averment made by OP No.2 in the course of Para-6 (On Merits) of its written statement. That amount of Rs.170000/- is, thus, lying in the HUDA account at Karnal with the OP No.2. The OP No.2 did not  receive any further instructions from HUDA to credit any amount in the Bank account of the complainant inspite of the request made by OP No.2 to OP No.1 (Annexure R2/7). The precise affidavit supported averment made by the complainant that even the amount aforementioned has not been refunded to him, has not been controverted on behalf of OP No.1 whose written statement, as already indicated, was ordered to be stuck off by the Forum vide order dated 17.02.2016.

8.                In the facts and circumstances of the case notice in the course of the preceding paras of this judgment, there was no justification on the part of HUDA in retaining the amount of Rs.170000/- in its account because that amount belonged to the complainant who was unsuccessful at the hustings i.e. the draw of lots held by HUDA. For the retention of that amount, OP No.1 is clearly guilty of having committing deficiency in service and unfair trade practice.

9.                Insofaras the balance earnest amount is concerned, it is prove to have been withheld by the Canara Bank. It is so evident from a perusal of letter (copy Annexure R2/6), addressed by the Vice President of OP No.2 to OP No.1. We, at the Forum, cannot validly adjudicate upon the controversy relating to the balance amount averred by OP No.2 to have been withheld by Canara Bank, for want of impleadment of Canara Bank as a party respondent. An objection to that effect had been raised by OP No.2 in the course of Preliminary Objection No.2. However, the complainant opted to assert in the course of application that Canara Bank is not a proper party. In that view of things, we have no option but to relegate the complainant to whatever remedy may be available to him on the judicial side against Canara Bank. For the purposes of adjudication of this complaint, we have constrained to observe that we cannot issue any direction qua that balance amount.

10.              We would, accordingly, allow this complaint in part and direct: -

         a)       OP No.1 to pay the amount of Rs.2,16,725/- (Annexure R2/5) to the complainant alongwith interest @ 9% per annum from the date i.e. 18.08.2015 on which date the complainant intimated the correct account to the Op No.1 (Annexure C-4).

         b)      OP No.1 shall also pay a sum of Rs.10,000/- as compensation to the complainant for the deficiency in services as also the mental agony and harassment caused to her; and

         c)       OP No.1 shall further pay a sum of Rs.5,000/- as the cost of litigation to the complainant.       

11.    The OP No.1 shall comply with this order within a period of one month from the date its communication to them comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint.

Announced

02.05.2016    S.P.ATTRI          ANITA KAPOOR          DHARAM PAL                                 MEMBER     MEMBER                                 PRESIDENT

 

 

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

 

                                          

                                            

                                                ANITA KAPOOR                                                                                                MEMBER