Haryana

Panchkula

CC/83/2015

SHASHI VIJH. - Complainant(s)

Versus

HUDA. - Opp.Party(s)

ABHINEET TANEJA.

28 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.

                                                               

Consumer Complaint No	:	83 of 2015
Date of Institution	:	01.05.2015
Date of Decision	:	28.10.2015

1.     Shashi Vijh w/o Sh.Bipin Vijh

2.     Bipin s/o Sh.Manohar Lal

Both R/o House No.H-8A, Mahesh Nagar, Near Punjab National Bank, Police Station Road, Ambala Cantt.

                                                                                                                                                                                                                             ….Complainants

Versus

1.     Haryana Urban Development Authority through its Chief Administrator, Sector-6, Panchkula.

2.     The Estate Officer, Haryana Urban Development Authority, Sector-6, 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.Abhineet Taneja, Adv., for the complainant. 

                        Mr.Ravinder Kaushik, Adv., for the Ops.

 

ORDER

(Dharam Pal, President)

 

1. The complaint has been filed by the complainants-Shashi Vijh and Bipin with the averments that in order to purchase a plot No.114, Sector-27, Panchkula measuring 147.60 sq. mtr. from Sh.Prem Nath Thappar, the complainants applied for permission to transfer with the Ops in favour of them vide letter dated 27.05.2008 (Annexure C-2). The Ops granted the permission to original allottee vide memo No.5726 dated 05.06.2008 (Annexure C-3), as the property was free from all sorts of encumbrances and no dues were pending on the property, subject to furnishing indemnity bond and affidavit of the complainants within 90 days. Thereafter, the original allottee-Sh.Prem Nath Thappar submitted his indemnity bond dated 10.06.2008 (Annexure C-4) duly indemnifying the Ops in case of loss on account of transfer and the complainants also submitted their affidavit dated 10.06.2008 (Annexure C-5) to the Ops duly accepting the allotment of the property in question. The context of the indemnity bond submitted by the original owner-Sh.Prem Nath Thappar were self-explicit wherein he undertook that in case the HUDA suffered any loss on account of transfer, he should be liable to make good the loss sustained by HUDA or its employees on account of this transfer. After completion of formalities, the sale deed was executed between Sh.Prem Nath Thappar & the complainants and the same was registered before sub-registrar, Panchkula vide regn. No.616 (Annexure C-6) dated 10.06.2008. The re-allotment letter in favour of complainants was also issued by the Ops vide memo No.7533 (Annexure C-7) dated 15.07.2008 in which it was also reiterated that no dues were outstanding. After the lapse of about one year, the Ops issued show cause notice dated 01.04.2009 (Annexure C-8) and demanded a sum of Rs.43,815/- upto 01.04.2009. After scrutiny of the letter dated 01.04.2009 itself revealed that the letter was to be actually issued to the original allottee as the Ops made a reference in the letter about the allotment letter of the original allottee which was issued vide memo No.4098 dated 28.02.2002. The complainants replied vide their reply dated 11.05.2009 (Annexure C-9) and intimated the Ops that it was the case where the transfer was effected through sale deed and the permission to transfer was granted only after confirmation of the dues. The complainant No.2 also stated in reply that nothing was due on his part qua the non-constructional fees (Annexure C-10) which has also been deposited vide receipt No.306 dated 12.02.20009 and requested to re-examine the case. The complainants visited several times the Ops for two years and every time, the Ops assured that the amount of Rs.49,000/- has been wrongly included in the enhancement compensation charges which would be waived off soon. The Ops further assured the complainants that they were not required to pay the dues and No Due Certificate would also be issued in favour of the complainants but to no avail.  Thereafter, the complainant No.2 again issued a letter dated 10.10.2012 and requested to issue No Due Certificate and withdraw the amount of Rs.49,000/- (Rs.43,815/- + interest). The complainants visited many times to the office of Ops and on 07.12.2012, the Ops told the complainants that now the dues of Rs.56,713/- were outstanding which would be waived off shortly. The complainants again issued a letter dated 11.12.2012 and intimated that they were assured that the dues would be waived off shortly but despite that, the dues were being shown in the account. Thereafter, the complainant No.2 vide letter dated 03.02.2014 requested the Op No.2 to look into the matter personally. But thereafter, the Ops instead of waiving off the amount, issued the letter dated 07.03.2014 and intimated that the request of the complainants has been considered and found that the following dues were outstanding:-

1.     Extension fee              :       Rs.4700/-

2.     Service Tax                        :       Rs.915/-

3.     Installment Dues         :       Rs.64,000/-

4.     Enhanced Compensation       :       Rs.2200/-

First time, the complainants came to know that the Ops were demanding the amount of Rs.64,000/- (Rs.43,815/- + interest upto 06.03.2014) on account of installment which was actually due from the previous allottee. The Ops also issued the letter dated 09.03.2014 to the original allottee and intimated that the auditor has pointed out that a sum of Rs.64,000/- on account of installment has not been deposited prior to transfer application. Thereafter, the complainant No.2 again represented in the office of Ops that the transfer permission letter and the re-allotment letter clearly showed that the No Dues were outstanding at the time of transfer and requested to waive off the amount. The complainants issued legal notice dated 01.05.2014 & reminder dated 03.07.2014 requesting to withdraw the demand of Rs.64,000/-. The Ops replied to the legal notice vide its reply dated 05.08.2014 and stated that waiver of the due amount was beyond HUDA policy. This act and conduct of the OPs amounts to deficiency in service on their part. Hence, this complaint.

2. The Ops appeared and filed written statement by taking some preliminary objections and submitted that the present complaint is time barred. It is submitted that at the time of transfer of plot, the transferees i.e. complainants as well as transferor had given an affidavit & Indemnity bond that HUDA would suffer any loss on account of the transfer in their names, the executants, their properties and their persons should be liable to make good the loss which might be sustained by the HUDA or its employees on account of this transfer. It is submitted that the legal heirs and successors of the executants should also be liable to make good the loss, if any, suffered by HUDA. It is submitted that the complainants have not impleaded the previous owner as a necessary party as the sale deed was executed between them, therefore, the complainant is liable to pay the due amount and recover the amount from the vendor. It is submitted as per the complainants, after verification from the record about dues, the plot was purchased. It is submitted that it was in the knowledge of the complainants that if any dues arose at any time, might be even after transfer after audit/verification, then they were liable to pay the same. It is submitted that a show cause notice dated 01.04.2009 was issued to the complainants for payment of dues of Rs.43,815/-. It is submitted that the complainants were again asked vide letter No.17634 dated 05.12.2012 and letter No.7248 dated 07.03.2014 to pay the outstanding dues. It is submitted that the previous allottee was also asked to deposit the outstanding amount vide letter No.3169-70 dated 19.03.2014 and the same was informed to the complainants. It is submitted that the previous allottee vide letter dated 31.10.2014 intimated the Ops that amount might be recovered from the complainants and the complainants were again informed vide letter dated 08.12.2014 to deposit the due amount, however, the dues have not been paid till date. It is submitted that the complainants instead of resolving the matter with the previous allottee or making the payments of the outstanding amount has filed the present complaint. It is submitted that whenever transfer permission is allowed, dues are checked and efforts are made to ensure that dues are deposited before granting transfer permission. It is submitted that the dues are calculated subject to audit. It is submitted that vide sale deed vendors conveyed, assigned and transferred the rights, titles and interest as they had to the vendees which is the complainants. It is submitted that the property was transferred under the provisions of HUDA Act, 1977. It is submitted that no assurance was given to the complainants. It is submitted that no due certificate was issued only after payment of entire dues and this certificate was also issued subject to audit. It is submitted that the complainants are entitled in terms of the sale deed to recover the amount from him. 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-21 and closed the evidence. On the other hand, authorized representative for the Ops has tendered into evidence by way of affidavit Annexure R-A alongwith documents Annexure R-1 to R-8 and closed the evidence.
4. We have heard the learned counsel for the parties and have also perused the record carefully and minutely.
5. Admittedly, the plot No.114, Sector-27, Panchkula measuring 147.60 sq. mtr. was originally allotted to Sh.Prem Nath Thappar vide allotment letter No.4098 dated 28.02.2002. Further the plot in question was transferred in the name of Smt.Shashi Vijh and Sh.Bipin Vijh (complainants) vide re-allotment letter No.7533 (Annexure C-7) dated 15.07.2008. Sh.Prem Nath Thappar executed an agreement to sell dated 10.06.2008 (Annexure C-6) between complainants and applied for permission to transfer with the Ops in favour of the complainants vide their letter dated 27.05.2008 (Annexure C-2). The Ops allowed the sale of property and granted the permission to Sh.Prem Nath Thappar to transfer the property in favour of the complainants vide memo No.5726 dated 05.06.2008 subject to furnishing their indemnity bond and affidavit of the complainants within 90 days (Annexure C-3). Sh.Prem Nath Thappar submitted the indemnity bond dated 10.06.2008 (Annexure C-4) duly indemnifying the Ops in case of loss on account of transfer and the complainants also submitted their affidavit dated 10.06.2008 (Annexure C-5) to the Ops duly accepting the allotment of the property in question. The sale deed was executed on 10.06.2008 (Annexure C-6). The re-allotment letter in favour of the complainants was issued by the Ops vide memo No.7533 dated 15.07.2008 (Annexure C-7) in which it was also reiterated that no dues were outstanding. But after lapse of about one year, the Ops demanded the amount of Rs.43,815/- vide show cause notice dated 01.04.2009 (Annexure C-8). The Ops also requested the previous owner to deposit the amount as they have also undertaken to indemnify the loss, if any, suffered by the Ops. In order to resolve the matter, the complainants issued the reply dated 11.05.2009 (Annexure C-9) to intimate that the permission to transfer was granted only after confirmation of the dues and the Ops assured that the amount of Rs.49,000/- (Rs.43,185/- + interest) has wrongly been included in the enhancement compensation charges which would be waived off shortly. Thereafter, the complainant No.2 requested the OP No.2 vide letter dated 03.02.2014 to look into the matter personally who intimated the complainants vide letter dated 07.03.2014 that the following dues were outstanding:-

1.     Extension fee                      :       Rs.4700/-

2.     Service Tax                                :       Rs.915/-

3.     Installment Dues                 :       Rs.64,000/-

4.     Enhanced Compensation       :       Rs.2200/-

6. On the other hand, the Ops submitted that dues were checked by the official of the account branch subject to audit and it was found that an amount of Rs.43,815/- was due against the plot No.114, Sector-27, Panchkula. At the time of transfer of plot, the transferees i.e. complainants as well as transferor had given an affidavit & Indemnity bond that if HUDA would suffer any loss on account of the transfer in their names, the executants, their properties and their persons should be liable to make good the loss which might be sustained by the HUDA or its employees on account of this transfer. The complainants as well as the previous owner were asked to deposit the outstanding amount but the previous owner intimated the Ops that amount might be recovered from the complainants. Thereafter the complainants were informed to deposit the due amount but the complainants did not deposit the dues. The Ops further submitted that the complainants are entitled in terms of the sale deed to recover the amount from the previous owner.
7. The issue for consideration before this Forum is whether the Ops can recover the amount from the complainants or not.
8. It is admitted fact that at the time of transfer, the previous allottee had given an affidavit and indemnity bond that in case HUDA would suffer any loss on account of this transfer, the executants their properties and their persons shall be liable to make good the loss which may be sustained by the HUDA or its employee on account of this transfer. The complainants have also submitted an affidavit dated 10.06.2008 (Annexure C-5) to the Ops duly accepting the allotment of the property in question.
9. From the above facts and circumstances, it is clear that the plot was transferred after reiterating that no dues were outstanding. The transfer was effected through sale deed and the permission to transfer was granted only after confirmation of the dues. Moreover, the previous allottee has executed an indemnity bond to make good any loss sustained by HUDA. The complainants are only responsible for dues and not for loss sustained by HUDA. The abvoesaid amount is not on account of dues. The Ops cannot take advantage of their fault. The Ops are also failed to place on record any steps taken by them to recover the abovesaid amount from the previous owner in term of the indemnity bond submitted by the previous allottee.
10. We must, before concluding, record our deep sense of dismay at the functional stance adopted by HUDA which, purportedly brought into being in the service of masses, has been proved to have acted in a bizarre and high headed manner in this case. We would, for reasons of propriety and as a measure of judicial restraint, end up with the hope and trust that HUDA will at least hence forth mend its manner of functioning which has led to the instant litigation which was plainly avoidable if HUDA had functioned in a transparent and non-despotic manner.
11. We are of the considered opinion that the Ops are not entitled to recover the said amount from the complainants, however, they are at liberty to initiate action as per law against the previous allottee in terms of the indemnity bond executed by him. By the faulty action of HUDA why should the complainants pay the amount of Rs.64,000/- whereas he has already paid the consideration including the abovesaid amount to the previous allottee. Accordingly, the complaint is accepted and the Ops are directed as under:-

1. Not to recover an amount of Rs.64,000/- from the complainants.
2. To pay Rs.5000/- as compensation for mental agony and physical harassment.
3. To pay Rs.2000/- as cost of litigation.

Let the order be complied with within 30 days from the receipt of the certified copy of this order. A copy of this order be sent to the parties free of costs.  File be consigned to records after due compliance.

 

 

 

Announced         (S.P.Attri)       (Anita Kapoor)                (Dharam Pal)

28.10.2015          Member        Member                 President

 

 

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

 

 

                                     

                                                Dharam Pal,                                                                              President