Punjab

Ludhiana

CC/20/252

Ashish Gupta - Complainant(s)

Versus

Himachal Pradesh Housing & Urban DevelopmentAuthority - Opp.Party(s)

Amninder Singh

05 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:252 dated 20.10.2020.                                                         Date of decision: 05.12.2023.

 

Ashish Gupta Aged 37 years S/o. Sh. Harish Inder Gupta, R/o. House No.2476, HIG Flats, Ist Floor, Urban Estate, Dugri, Phase-2, Ludhiana.                                                                                           ..…Complainant

                                                Versus

Himachal Pradesh Housing and Urban Development Authority (HIMUDA), Shimla, through Chief Executive Officer-cum-Secretary, Nigam Vihar, Shimla-171002.

                                                                                      …..Opposite party 

Complaint Under section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Ashish Gupta in person.

For OP                           :         Sh. Vikram Monga, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, the facts of the case are that the complainant is a practicing advocate. The complainant being attracted by the advertisement made by the OP on 12.06.2012 in the newspaper “The Tribune”  for inviting applications for allotment of flats/plots proposed to be constructed/developed on free hold basis under Partially Self Financing Scheme in Housing Colonies at Jarja (Nahan), Shubhkhera (Paonta Sahib),  District Sirmour, Bhatoli Khurd (Baddi), Mandhala and Parwanoo, District Solan, applied for the residential plot falling under category Type-III, 135 to 199 sqm. At Housing Colony, Jarja, Nahan. The complainant deposited the earnest money of Rs.3,78,507/- vide demand draft   No.526975 dated 12.07.2012 drawn on SBI, Shimla with the application form as a pre-requisite condition for applying the plot.

                   The complainant stated that he received allotment letter dated 14.01.2013 from the OP by mentioning that in draw of lots held on 17.11.2012, the complainant got allotted Plot No.39  measuring 135 sqmt. under Partial Self Financing Scheme in Housing Colony at Jarja, Nahan (H.P.) @ Rs.11,215/- per sqmt. having tentative cost of Rs.15,14,025/-. As per schedule, the complainant deposited Rs.7,57,012/- (Rs.3,78,507/- as Earnest money, Rs.1,51,402/- as 10% of the tentative cost, Rs.75,701/- as first half yearly installment, Rs.75,701/- as second half yearly installment and Rs.75,701/- as third half yearly installment) as per terms and conditions of the allotment letter. The OP acknowledged the receipt of payments made by the complainant.  Further a balance 50% of the tentative cost plus difference between tentative cost and final cost payable in 12 quarterly installments with interest @12% per annum after issue of letter for execution of HPTA.

                   The complainant further stated that it was mentioned in the allotment letter dated 14.01.2013 at point No.6 that “the work of development has already been taken in hand and it is very likely that possession will be offered well before completion of payment schedule. In that event the balance tentative cost up to 50% will have to be paid in lump sum before offering possession.” However, no correspondence from OP with respect to payment of final cost, possession letter and execution of conveyance deed was ever received since receipt of payment of last installment dated 22.07.2014 as no development work was not completed as per schedule. The complainant further stated that after waiting for six long years, the complainant wrote a registered letter dated 27.12.2019 to the OP with request to surrender the allotment of the allotted plot and refund of Rs.7,57,012/- along with interest but no reply was given by the OP. Even the complainant sent first reminder dated 03.02.2020, second reminder dated 18.03.2020, third reminder dated 04.06.2020 and Emails dated 02.03.2020, 01.07.2020 with request to refund of RS.7,57,012/- along with interest but to no effect. However, the OP sent an allotment letter No.27915-18 dated 30.07.2020 mentioning that the final cost of plot comes to Rs.14,58,000/- and the plot is ready for possession and for handing over possession of the plot, following formalities are required to be completed within 45 days from the issue of the letter failing which watch and ward charges and penal interest on delayed payment as per terms and conditions of the scheme shall be payable by the complainant.  Then the complainant wrote a registered letter dated 19.08.2020 by again requesting to refund Rs.7,57,012/- along with interest and to surrender/cancel the allotment of plot No.39 at Jarja, Nahan (H.P.).

                   The complainant further stated that he remained stun to receive letter No.30039 dated 28.08.2020, letter No.24311 dated 04.07.2020 on 08.-09.2020 from the OP that the OP instead of refunding the amount of the complainant, claiming that the OP is going to deduct an amount of Rs.4,54,263/- from Rs.7,57,012/- without any rhyme or reason by claiming that there is no provision in the terms and conditions of the allotment to refund the entire amount with interest. According to the complainant, the OP cannot deduct any amount from Rs.7,57,012/- as the OP had violated the terms and conditions of the allotment by not completing the development work within scheduled time period plus grace period.  Thereafter, the complainant vide application dated 06.11.2019, sought information under Right to Information Act, 2005 regarding reasons for delay in development work and also guidelines for refund etc. to which the OP vide letter No.20951 dated 13.12.2019 informed that “desired information at point 2 and 3 does not pertain to opposite party but admits at point 4 that no one allottee has surrendered at Jarja for such reason (non-completion of development works) and no such refund has been made so far.” The complainant further stated that it proves that the OP is well within knowledge that till date no development had been carried out at the side. Due to incomplete information supplied by the OP, the counsel for the complainant vide letter dated 17.03.2020 again demanded information at point No.2 and 3 from concerned section i.e. Public Information Officer, office of Executive Engineer, HIMUDA, Division Nahan, H.P. but no information was supplied. Thus, the OP is guilty of deficiency in service and unfair trade practice by withholding heard earned money of the complainant due to which the complainant has suffered mental agony, financial loss etc. The complainant also sent a legal notice dated 09.09.2020 upon the OP but with no result. Hence this complaint, whereby the complainant has prayed for issuing direction to the OP to refund the amount of Rs.7,57,012/- along with interest @24% per annum from date of allotment dated 14.01.2013 by cancelling the allotment of plot in question and further to pay compensation of Rs.2,00,000/- along with litigation expenses of Rs.50,000/-.

2.                Upon notice, the OP appeared and filed written statement and by taking preliminary objection assailed the complaint on the ground of maintainability, the complaint being hopelessly time barred; the complainant estopped from filing the present complaint etc. According to the OP, as per terms and conditions of Himachal Pradesh Housing and Urban Development Authority (Allotment, Sale of Houses, Flats and Plots) Regulations, 2004/allotment that all disputes shall be subject to the jurisdiction of Courts within Himachal Pradesh.  

                    The OP averred that in the tentative allotment letter as per condition No.6, it was made clear about the final cost, execution of conveyance deed and taking over of possession and accordingly final allotment letter dated 30.07.2020 was issued after receipt report with regard to completion of development works at site from field. The OP further averred that before the allotment was canceled on the request of the complainant, the amount of refund under clause No.11(ii) of the relevant brochure was also indicated in the letter dated 04.07.2020 as per terms and conditions of the scheme and the complainant was well conversant with the same as he abided by the same by way of signing declarations attached in the application form. According to the OP, the development works have been completed within stipulated period as already intimated to the complainant the tentative recovery period + one year grace period vide letter dated 25.09.2012 which will be applicable from the date of allotment i.e. 14.01.2013. The OP has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                The complainant filed rejoinder to the written statement reiterated the facts mentioned in the complaint and controverted those mentioned in the written statement.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 to Ex. C45 and closed the evidence.

5.                The OP failed to tender any evidence despite grant of sufficient opportunities and imposition of costs and as such, evidence of the OP was closed by order vide order dated 05.06.2023.

                   However, the OP filed an application for treating the evidence already tendered in the court file along with written statement and documents. The said application was allowed vide order dated 25.07.2023.

                   The counsel for the OP tendered affidavit of Ms. Anjaori Kapoor, Superintending Engineer in OP along with documents i.e. Ex. R1 is the copy of letter dated 04.07.2020 of the OP, Ex. R2 is the copy of application form dated 11.07.2012 for allotment of plot, Ex. R3, Ex. R6 is the copy of Allotment letter dated 25.09.2012, Ex. R4 is the copy of HIMUDA Regulations, 2004, Ex. R5 is the copy of terms and conditions of the Partial Self Financing Scheme, Ex. R7 is the copy of letter dated 30.07.2020 of the OP and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, rejoinder, affidavit and annexed documents and written reply along with Affidavits and documents produced on record by both the parties. We have also gone through the written arguments submitted by the OP.

7.                The issue arises for determination as to whether there is delay on the part of the opposite party in offering the possession of the plot to the complainant and if so, whether the complainant is entitled to refund and compensation of the amount and as to what extent?

8.                In this regard, the relevant terms and conditions for Type-C Cat-III) Plots under Partial Self Financing Scheme Ex. C37 = Ex. R5 are set out herein below:-

          “7. PAYMENT SCHEDULE

1.      Earnest Money to be deposited                    25% of the tentative cost

(with application)

2.      10% of the tentative cost                    Within 30 days of allotment
3.      15% of the tentative cost                    In 3 half yearly installments                                                           @5% of the tentative cost.
4.      Balance 50% of cost plus difference between tentative cost and final cost is payable in 12 quarterly installment with interest 12% per annum after possession. Tentative period of completion will be 3 years from the date of initial allotment plus one year GRACE PERIOD. In case development works are not complete within the aforesaid period, the applicants will be entitled for simple interest at the prevailing rate for the period exceeding 4 years. However, in case plots are ready for possession before completion of payment schedule upto 50% of tentative cost, the allottee will be required to make the payment of balance cost upto 50% in lump sum before taking over possession of the plot.        

“11.   CANCELLATION/SURRENDER:

In case a registered applicant withdraws after draw of lots, 50% of the earnest money deposited along with the application shall be forfeited and the balance refunded to the applicant, provided the application for surrender/cancellation has been made within one month from the date of issue of allotment letter.

          CONVEYANCE DEED:

Conveyance Deed to be prescribed by the Chief Executive Officer-cum-Secretary will be executed and got registered after full cost of the unit has been paid by the allottee. The documentation charges and the registration fee shall be borne by the allottee. It will be mandatory to the allottee to complete formalities for taking over possession of Flat within prescribed period from the issue of allotment letter.

          POSSESSION:

Possession of the unit will be offered/handed over to an allottee only after he has paid the prescribed required amount on development of unit and after execution of Conveyance Deed. It will be mandatory to the allottee to complete formalities for taking over possession of Flat within prescribed period from the issue of final allotment letter failing which he will be liable to pay watch and ward charges.”

 

9.                When these terms and conditions contained in Ex. R37 = Ex. R5 are read together, it would reveal that they are heavily loaded in favour of the opposite party and against the complainant at every step. Practically on one hand these conditions stipulate the valuable rights of the complainant and on the other hand, offer long rope for the OP. Such unilateral, unreasonable contractual terms could not be deemed to be final and binding upon the complainant. In Pioneer Urban Land & Infrastructure Ltd., Vs. Govindan Raghwan (2019) 5 SCC 725, Hon’ble Supreme Court has observed that “a term of a contract will not be final and binding if it is shown that the flat  purchasers had no option but to sign on the dotted line, on a contract framed by the builder…. The incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder….., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms.”

10.              The counsel for the opposite party contended that the complainant is not entitled for any relief of refund of deposited amount. The development works have been completed within stipulated period and said fact has been intimated to the complainant and even the possession was offered after completion of external services like road, electricity and water etc. Final allotment letter dated 30.07.2020 regarding execution of conveyance deed and to take over the possession was issued after receipt of completion report from field office.

11.              On the other hand, the counsel for the complainant refuted the allegations and contended that the complainant had invested a huge amount in the project of the opposite party for the purchase of the plot for his residential purposes but due to the failure of the opposite party in handing over the possession of the plot, complainant had to suffer immense harassment and was deprived of usage of the same. Not only this, till date the opposite party is enjoying the benefits of the amount deposited by the complainant and such like other consumers.

12.              As per averments and allegations made by the complainant in his complaint as well as affidavit, an allotment letter dated 14.01.2013 Ex. C5 was issued in favour of the complainant by the OP. As per allotment letter Ex. C5, the tentative cost of the plot was Rs.15,14,025/-, out of which 25% of earnest money of Rs.3,78,507/- was deposited by the complainant vide demand draft dated 12.07.2012 Ex. C4 on  10% of the tentative cost of Rs.1,51,402/- was paid vide cheque dated 08.02.2013 Ex. C7. The complainant also paid 15% of tentative cost of Rs.75,701/- each for first, second and third half yearly installments i.e. Rs.75,701/- on 12.07.2013 (as per receipt Ex. C11), Rs.75,701/- on 09.01.2024 through demand draft No.078386 (as per letter dated 10.01.2014 Ex. C13) and Rs.75,701/- on 04.07.2014 (as per receipt Ex. C15) . As such, in all the complainant deposited a sum of Rs.7,57,012/- with the OP as per the payment schedule. This fact has not been denied by the OP in its written statement and affidavit. As such, the complainant had adhered to the payment schedule and the possession was to be delivered in the year 2017 i.e. after four years from the issuance of allotment letter dated 14.01.2013 Ex. C5 i.e. three years tentative period of completion from the date of initial allotment + one year grace period. However, the OP has failed to deliver the possession of the plot to the complainant within stipulated period. The complainant was compelled to issue letter dated 27.12.2019 Ex. C17 followed by reminders dated 03.02.2020 (Ex. C19), 18.03.2020 (Ex. C21) and 04.06.2020 (Ex. C23) as well as emails dated 02.03.2020 (Ex. C25), 01.07.2020 (Ex. C26) to the OP for surrender of the plot and for refund of amount of Rs.7,57,012/- but no reply to the said communication was received by the complainant from the end of the OP. Thereafter, for the first time, the OP sent a letter/allotment dated 30.07.2020 Ex. C27 = Ex. R3 to the complainant stating that the possession of the plot is ready and for handing over the possession of the plot certain conditions were required to be completed within 45 days from the issuance of the said letter. In response to said letter dated 30.07.2020, the complainant again sent a registered letter dated 19.08.2020 Ex. R28 to the OP with request to refund the amount of Rs.7,57,012/- by surrendering/cancelling the allotment of plot in question. The said letter was replied by the OP vide its reply dated 04.07.2020 Ex. C1 mentioning that there is no provisions in the terms and conditions of allotment to refund the entire amount with interest and the refundable amount was made to the extent of Rs.3,02,749/- only (i.e. Rs.7,57,012/- minus Rs.4,54,263/-). Further, as already discussed above, the OP contended that the Final allotment letter dated 30.07.2020 Ex. C27 = Ex. R3 regarding execution of conveyance deed and to take over the possession was issued after receipt of completion report from field office. However, no field report has been produced by the OP. Even the perusal of the photographs Ex. C40 to Ex. C45 shows that there is no development work in the housing scheme of the OP which amounts to deficiency in service on the part of the OP. So one cannot take advantage of its own wrong.

13.              In this regard, reference can be made to Ireo Grace Realtech Pvt. Ltd. Vs Abhishek Khanna & another (2021) 3 SCC 241, the Hon’ble Supreme Court has held that “allottees who have not been given possession, cannot be made to wait indefinitely for possession, nor they can be bound to take possession in other phase of the project. Such allottees are entitled to refund of entire amount deposited by them.” Further reference can be made to Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and others Vs DLF Southern Homes Pvt. Ltd. & others (2020) 16 SCC 512, whereby the Hon’ble Supreme Court of India has held that “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency.” Further, it has been held by the Hon’ble Supreme Court that “in case of gross delay in handing over possession by builder beyond contractually stipulated period, flat purchaser is entitled to just and reasonable compensation for such delay and such compensation not constrained by terms of rate which is prescribed in an unfair bargain.

                   As such, after appreciating the rival contentions of the parties as well as after perusing the documents on record, this Commission is of the view that the complainant is entitled to compensation for deficiency of service and unfair trade practice on the part of the opposite party. The provisions of the Consumer Protection Act enable a consumer to claim and empowers the Commission to redress injustice done to the complainant. The amount of compensation can be determined by taking into facts and circumstances of each case and also mitigating circumstances that may arise in favour of the opposite party as well. Reference can be made to 2020(3) Apex Court Judgments 27 (S.C.) in DLF Home Developers ltd. (Earlier known as DLF Universal Ltd.) & another Vs Capital Green Flat Buyers Association Etc. In these set of facts and circumstances, it would be just and appropriate if the opposite party is directed to refund the amount Rs.7,57,012/- (i.e. Rs.3,78,507 + Rs.1,51,402 + Rs.75,701 + Rs.75,701 + Rs.75,701 = Rs.7,57,012/-) along with interest @9% per annum w.e.f. 14.01.2017 (i.e. after expiry of tentative period of completion of three years plus one year as grace period of issuance of allotment letter dated 14.01.2013) till its actual payment within 30 days from the date of receipt of copy of order. The OP shall further pay composite cost of Rs.30,000/- to the complainant.

14.              As a sequel of above discussion, the complaint is partly allowed with direction to the opposite parties to refund the amount Rs.7,57,012/- (i.e. Rs.3,78,507 + Rs.1,51,402 + Rs.75,701 + Rs.75,701 + Rs.75,701 = Rs.7,57,012/-) along with interest @9% per annum w.e.f. 14.01.2017 (i.e. after expiry of tentative period of completion of three years plus one year as grace period of issuance of allotment letter dated 14.01.2013) till its actual payment within 30 days from the date of receipt of copy of order. The OP shall further pay a composite cost of Rs.30,000/- (Rupees Thirty Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

15.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                     (Sanjeev Batra)

Member                         Member                                       President         

 

Announced in Open Commission.

Dated:05.12.2023.

Gobind Ram.