Punjab

Ludhiana

CC/16/784

Ardaman Kaur - Complainant(s)

Versus

ICICI prudential life ins.co.ltd - Opp.Party(s)

Devan Verma Adv.

23 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 784 of 18.11.2014

   Date of Decision            :  23.10.2017

 

Satinder Singh, aged 34 years, son of Shri Ranjodh Singh, resident of house No.1511, Urban Estate, Phase-II, Chandigarh Road, Ludhiana.

….. Complainant

                                                            Versus       

 

1.The Zonal Commissioner, Zone-D, Municipal Corporation, Ludhiana.

2.Municipal Corporation Ludhiana through its Commissioner.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For complainant               :         Ms.Harjit Kaur, Advocate

For Ops                           :         Sh.R.K.Gupta, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                           Complainant was allotted shop no.4 vide allotment letter No.315 dated 14.5.2013(received on 12.12.2013).That shop is situate at village Jawaddi Kalan, Tehsil and District Ludhiana.Allotment was in auction held and conducted on 15.11.2012 by Ops. Ops got published advertisement in the newspaper, through which, they disclosed the reserve price of Rs.20,200/- per sq.yard for commercial site and Rs.11,200/- per sq.yard for residential site. At the time of auction, Ops received 4/5 times more than the reserve price from the complainant by assuring as if he along with other allottees will be handed over the immediate possession of the site with complete facilities as shown in the site plan and as disclosed in the terms and conditions of allotment letter. Complainant deposited 25% of the total amount through proper receipts with Ops. At the time of allotment of the said shop, it was assured by Ops and the auction officers, as if the site will be developed within one month from the date of auction and thereafter, next installment will be demanded. The said conversations was duly recorded in a CD. Nothing positive has been done at the site, despite the above said assurances given by Ops. Heap of garbage and waste material is lying in the entire property sold to the complainant. At the time of auction, it was disclosed that an open parking space of 10 feet wide shown in the front of shops will be available, but no open space for parking of the vehicle in fact is available in the front of the shops. In this way, Ops have mis-lead the complainant and other allottees and that is why, this is alleged to be an act of deficient service and of adoption of an unfair trade practice. Complainant sent letters to the Ops for doing the needful, but nothing positive has been done. Due to deficient act of Ops, complainant could not start his business in the shop, due to which, he is suffering a lot. Complainant got served a registered legal notice dated 25.9.2014 through counsel for calling upon Ops either to develop the site or to refund the principal amount with interest @24% per annum from the date of deposit till actual payment. Further, the complainant disclosed that he will be ready to pay the remaining amount without interest, in case site would be developed by Ops. Ops are under legal obligation to make development at the site, but despite that they have not done anything and as such, this complaint filed for refund of principal amount of Rs.3,75,800/- along with interest @24% per annum from the date of deposit till actual payment. Compensation for mental harassment and agony of Rs.2 lac also sought.

2.                 Ops filed joint written reply for claiming interalia as if complaint in the present form is not maintainable; complainant has no locus standi; complainant is not a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’); this Forum has no jurisdiction to entertain the present matter and that complaint is barred by limitation. Property in dispute is a commercial property and even the transaction between the parties is a commercial transaction, due to which, this Forum has no jurisdiction. Admittedly, the property comprising shop no.4 was auctioned on 15.11.2012 at the rate of Rs.83,500/- per sq.yards and complainant deposited 25% of the auction amount i.e. Rs.3,75,800/- with OP2. Total payable amount by the complainant is Rs.15,03,200/-. Allotment letter No.315 dated 14.5.2013 was issued to complainant, but he refused to receive the same and subsequently, allotment letter was sent through post vide postal receipt No.EP 203558964 IN on 12.8.2013. In all ten shops were sold in auction and auction purchaser of some of the shops have deposited money with OP2. Auction purchasers of the shops No.1,2,7,9 and 10 have already deposited the full auction money with OP2, but auction purchasers of the shops no.3 and 6 have partly deposited the auction money. Auction purchasers of the shops no.4, 5 and 8 have not deposited any installment except the 25% deposited amount. Ops have never refused to deliver the possession of the shop to the complainant, but possession can be delivered only on compliance of the terms and conditions of the auction. Auction purchasers were required to deposit the 25% of the auction money within 15 days from the date of receipt of the allotment letter in addition to the 25% already deposited within 24 hours before completion of the auction. Balance 50% amount is payable in two installments along with interest @12.50% per annum of six months duration. In case of failure to pay the installments within time, 19% per annum penal interest leviable. Complainant failed to make the payment of remaining 75% of amount of installments and as such, he is liable to pay the same with interest plus penal interest, as per terms and conditions of auction. Even the allotment can be cancelled and the money deposited by the auction purchaser can be forfeited and thereafter, the shop can be sold further as per condition No.11 of the auction, which is signed by the complainant himself.  Other averments of the complaint denied, but by claiming that there was also fault on the part of the complainant in refusing to receive the allotment letter. It is also claimed that the effective date for the deposit of 25% of the amount after auction started w.e.f. the issuance of the allotment letter. Further, it is claimed that all the facilities have been provided by the Ops at the site as per the promise because the site has been developed by Ops. Copy of the CD, alleged to be annexed with the complaint,not supplied to Ops and as such, reply in that respect cannot be submitted. It is claimed that service of notice dated 25.9.2014 by the complainant on Ops is not denied, but the same is alleged to be not a legal and valid notice.

3.                 Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C24 including Ex.C12A and then his              counsel closed the evidence.

4.                 On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Sh.P.S.Ghumman, Zonal Commissioner, Zone-D, Municipal Corporation, Ludhiana along with document Ex.R1 and then closed the evidence.

5.                 Written arguments submitted by complainant alone, but not by Ops. Oral arguments by counsel for parties addressed and those were heard. Records gone through minutely. 

6.                 Undisputedly, complainant purchased shop no.4 in auction conducted on the basis of advertisement Ex.C1 published through newspaper and thereafter, allotment letter Ex.C2 was sent to the complainant. It is also admitted that the complainant deposited Rs.3,75,800/- as earnest money i.e.1/4^th installment of sale consideration, on the date of auction itself through demand draft. The property in question is a shop and as such, it is vehemently contended by counsel for Ops that the property in question is a commercial property, due to which, complainant is not a consumer within the meaning of section 2(d)     of the Act. Those submissions vehemently controverted by counsel for complainant by contending that the shop in question was purchased by the complainant for earning livelihood by way of self employment and as such, he is a consumer within the meaning of section 2(1)(d) of the Act. However, after going through complaint as well as the submitted affidavit Ex.CA of complainant, it is made out that complainant has not alleged anywhere that shop in question was purchased by him for earning livelihood by way of self employment. Rather, after going through complaint and affidavit Ex.CA, it is made out that complainant claimed as if due to deficient act of Ops in not developing the site or providing 10 feet parking space in front of the shop, complainant has suffered a lot because he failed to start his business in this shop. Complainant has not specified as to what business he has to carry out in the shop in question or as to whether the said business to be carried for self earning by way of self occupation of the shop in question or not. As plea of the complainant is that he could not start business and is suffering a lot due to fault of Ops in providing deficient services  and as such, the same implies as if                        complainant to carry on business in the shop in question for earning profit and that is why he has disclosed about sufferance only. The site in dispute certainly is a commercial property being a shop in a market and as such, submissions advanced by counsel for Ops certainly has force that commercial property in fact purchased by the complainant in an open auction.

7.                 In case titled as Nikita Cares vs. Surya Palace IV(2015)CPJ-405(N.C.), it was held that if the lift got installed for commercial purposes, then complainant concerned will not be a consumer and Consumer Fora will be having no jurisdiction to entertain the complaint with respect to the provided services of installation of lift. Likewise, in case titled as Pharos Solution Pvt. Ltd. and others vs.Tata Motors Ltd., Bombay House-2015(IV)CLT-265(N.C.). it has been held that when the car was not purchased exclusively for the purpose of earning livelihood by means of self employment, but for the director of the company, then the same to be deemed to be purchased for commercial purpose, due to which, Consumer complaint will not be maintainable. In case of titled as Lords Wear Pvt. Ltd. vs. Rance Computer Pvt. Ltd.-I(2014)CPJ-332(N.C.), it was held that when a computer software is purchased by a private limited company and the complaint filed without impleading that Managing Director is running business for earning livelihood or self employment, then complainant concerned will not be a consumer within the meaning of Section 2(1)(d) of the Act. Same is the position in the case before us because here it is not at all pleaded or proved by producing any evidence that shop in question was purchased for carrying    on business for earning livelihood alone. This Forum at its own cannot assume just     on strength of written arguments alone that shop in question was actually purchased for earning livelihood by way of self employment. Rather, complainant has to plead and prove as if shop in question was purchased by him for earning livelihood by way of self employment. That has not been pleaded and proved and as such, certainly submissions advanced by counsel for Ops has force that the complainant failed to prove as if shop in question was not purchased for commercial purpose, but for carrying on business for earning livelihood by self employment. Even in case of Manu Talwar vs. DPT Ltd-IV(2015)CPJ-396(N.C.), it has been held that when breach of buyer agreement qua the purchase of the commercial space take place, then complainant concerned will not be    a consumer. Ratio of this case is fully applicable to the facts of the present case because the commercial space(shop) was purchased by the complainant in an open auction, but without impleading that the said purchase  made for the purpose of earning      livelihood by way of self employment. So, complainant certainly failed to establish that he is consumer within the meaning of Section 2(1)(d) of the Act.

8.                 Counsel for the complainant vehemently placed reliance on cases titled as Sanjay Kumar Joshi vs. Municipal Board, Laxmangarh and another-2014(4)RCR(Civil)-832(S.C.); Madan Kumar Singh(D) through Lr vs. Distt. Magistrate, Sultanpur and others-2009(4)RCR(Civil)-137(S.C.) and case decided on 14.5.2012 bearing Revision No.4347 of 2010 titled as Rajinder Kumar vs. Haryana Urban Development Authority by Hon’ble National Consumer Disputes Redressal Commission, New Delhi for arguing that the purchaser of the plot in an open auction is a consumer, particularly when development activities not carried out despite assurances and requirements of the terms and conditions of the auction. However, after going through ratio of these cases, it is made out that shop/plot in the reported case was shown/proved to be purchased for earning livelihood by way of self employment. That is not pleaded and proved in the case before us and as such, benefit from ratio of above cited cases not available to counsel for complainant. Had factum of purchase of commercial property in question for earning livelihood by way of self employment would have been pleaded and proved, only then benefit of above cited cases could have been availed by the counsel for complainant. That is not the position in the case before us. In view of the fact that the complainant not proved to be a consumer, certainly this consumer complaint is not maintainable.

9.                 Even on merits, case of the complainant is weak because after going through the terms and conditions of the auction advertisement Ex.C1 itself, it is made out that every auction purchaser at the end of auction was required to deposit 25% of the sale consideration amount including 10% deposited as earnest money and thereafter, he was to deposit 25% of balance amount within one week of approval of auction by the authorities concerned. Balance 50% was to be deposited by the successful auction purchaser in two equated six monthly installments with interest @12.5% per annum, but in case of late deposit of installments, Ops entitled to charge penal interest @19% also. All this is incorporated in condition no.3 of Ex.C1. However, it is the case of complainant that he deposited 25% of the amount at the time of auction only. It is not the claim of complainant that he deposited balance 25% amount after approval of the auction by the competent authorities. Approval of auction took place through letter Ex.C2 dated 14.5.2013. This letter Ex.C2 was received by the complainant on 12.12.2013 is an admitted fact by the complainant himself. Even if this letter may have been received on 12.12.2013, despite that the complainant has not deposited the balance 25% amount of Rs.3,75,800/- within 15 days of receipt of this letter. This Ex.C2 was sent by Zonal Commissioner of OPs for calling upon complainant to deposit 25% of the balance amount, which was issued in response to the condition no.3 of Ex.C1. Despite receipt of Ex.C2 on 12.12.2013, the balance 25% amount of Rs.3,75,800/- has not been deposited by the complainant at all and as such, fault lay with the complainant in not abiding by the terms and conditions of the auction conveyed to him through notice Ex.C1 published in the newspaper. Moreover, complainant failed to execute the agreement on stamp papers as per requirement of Ex.C2. Complainant has never called upon Ops for getting the agreement executed from him and as such, fault also lay with complainant   in not abiding by the terms of Ex.C2, to execute the agreement.

10.               Copies of terms and conditions of the auction of shop in question including other sites of Jawaddi Kalan produced on record as Ex.R1 by Ops. After going through Ex.R1, it is made out that complainant was to execute the agreement and interest from him not to be charged in case the entire amount of sale consideration deposited within 60 days of issue of allotment letter. Balance 75% of amount has not been deposited by the complainant despite issue of Ex.C2 as referred above and as such, complainant himself failed to abide by the terms and conditions of the auction. Provision for charging 19.5% penal interest also made in the terms and conditions Ex.R1. Clause 5 of Ex.R1 specifically provides that in case auction purchaser failed to deposit the due six monthly installments after four weeks extra period of deposit of such installments, then The Commissioner of Municipal Corporation, Ludhiana will be having the right to forfeit the deposited amount by treating the auction as cancelled. That step has not been taken by Ops till date and as such, virtually no adverse order against complainant has been passed till date, albeit condition no.5 of Ex.R1 provides so. Equitable  consideration demand that in case any adverse order against the complainant to be passed, then Ops should issue show cause notice in writing to the complainant, so that he may avail opportunity of defending. That will be inconsonance with principles of natural justice and also in accordance with the contractual obligation envisaged by the provisions of Indian Contract Act.

11.               As party, who himself remain at fault in not abiding by the terms and conditions of auction cannot hold others guilty for providing deficient services and as such, plea of providing deficient services to complainant is not available in view of non compliance of condition of deposit of balance 25% amount within 15 days of receipt of Ex.C2.

12.               In affidavit Ex.CA of complainant itself, it is mentioned that opposite party prepared site plan on 28.11.2014, which is different from the site plan as was shown to the complainant and other persons who took part in the auction bid. It is also admitted in this affidavit that road has been constructed in the site in March 2015, but before that no development was carried out at the site. From these averments of Ex.CA, it is     made out that road has been constructed, albeit the requisite site plan earlier has not been prepared. However, there is no term and condition contained in EX.R1 or Ex.C1 that development of site by way of construction of road is condition precedent before accepting balance 75% of amount from the allottees/auction purchasers. When such term and condition is not there in Ex.R1 or Ex.C1 or Ex.C2, then certainly submissions advanced by counsel for complainant has no force that development activities not carried out as per assurances through conversation recorded in CD Ex.C12. Translation copy of same is produced on record as Ex.C12/A and as such it is contended that complainant was not bound to deposit the balance amount. Certainly it is the duty of Ops to develop the site, but time limit for such development not fixed and nor condition put anywhere in the terms and conditions or in the auction notice Ex.C1 that this development will be carried out prior to acceptance of balance 75% amount and as such, complainant cannot compel Ops to not to dictate about deposit of balance 75% until facilities of construction of road etc., provided. Certainly authority like Municipal Corporation under statutory obligation to provide amenities like roads, waters, electricity, sewerage etc, as per law laid down in case titled as Municipal Corporation Chandigarh and others vs. M/s Shantikunj Investment Pvt. Ltd etc-2006(2)RCR(Civil)26(S.C.), but at the same time, it is also mentioned in this authority itself that allottees cannot withhold payment of installments, interests, penalty just on the ground that all the amenities are not provided. So, act of withholding of balance amount by the  complainant itself amounts to breach of the terms and conditions of the allotment. A party who himself commits breach of terms and conditions of auction, not entitled to any relief on equitable consideration, because he who seeks equity must do same. So, even if the complainant may have sought intimation through site plan Ex.C4 or through RTI as disclosed by contents of Ex.C5 on deposit of RTI fee through receipt Ex.C6, despite that he is not entitled to any relief because he himself failed to abide by the terms and conditions of auction agreement. Though, complainant along with others sought return of 25% of deposited amount through application Ex.C7 by claiming through another application Ex.C8 that development activities not started at the site due to lying of heaps of garbage at the site, despite that fault lay with the complainant in not depositing the balance amount. Ex.C10 is the copy of notice sent by the complainant through counsel through postal receipt Ex.C11, but Ex.C9 shows as if sought information through RTI to be given by the concerned authorities. Certainly in the CD conversion Ex.C12/A, it is admitted that development activities to be carried out by Ops, but there is no condition in the terms and conditions qua carrying out this development activities before accepting 25% of sale consideration amount. Now that development activities has been carried out as per contents of affidavit Ex.RA as referred above. As the other auction purchasers of shop No.1,2,7,9 and 10 have already deposited the full auction amount and as such, it is obvious that complainant by treating him the above other auction purchasers seeking relief of not paying the interest amount even after committing default in payment. Wrong doer himself cannot seek parity with others, who have abided by the terms and conditions of auction agreement. Rather, in response to RTI Act application Ex.C14, Ops conveyed as if video/CD was not prepared on the spot and site plan as prepared at the time of auction is not available in the office of Ops, but development work was completed on 10.12.2014. So, certainly development work carried out after filing of this complaint, but even then complainant himself committed breach of terms and conditions of auction agreement and as such, he is not entitled to any relief through this complaint.

13.               The advertisements Ex.C20 to Ex.C22;  the terms and conditions of auction of site at Shaheed Bhagat Singh Nagar Lodhi Club Road, Ludhiana Ex.C23 and  advertisement of PUDA auction at Samrala Ex.C24 are produced for establishing      that only on acceptance of 20% or 25% of auction amount, facilities of development agreed to be provided at these sites at Maloot or at Kapurthala or at Bathinda or at Shaheed Bhagat Singh Nagar or at Samrala and Moga. Even if that be the position, despite that terms and conditions of contract in the present case are different than those of the terms and conditions mentioned in these advertisement/auction publication notices. As and when a contract is arrived at after going through the published auction notice, then the terms of same binding on the parties inter se. So, benefit from the    terms and conditions  of offer of possession of deposit of 20% or 25% amount as envisaged by Ex.C20 to Ex.C24 cannot be gained by complainant because offer of acceptance is an essential part to the contact. Complainant accepted the invitation of offer put forth through Ex.C1 by agreeing to abide by the terms and conditions incorporated therein and as such, he cannot claim that benefit of terms and conditions of other contracts to which, Ops or he himself is not a party, should be given to him.      All other points pales into insignificance in view of above discussion.

14.               Therefore, as a sequel of the above discussion, complaint dismissed, but with observation that in case any adverse action against complainant to be taken by OPs, then same must be taken by following principles of natural justice e.g. affording due opportunity of hearing to complainant after issue of show cause notice in writing. No order as to costs. Copies of order be supplied to parties free of costs as per rules.

15.                         File be indexed and consigned to record room.

 

 (Param Jit Singh Bewli)                                     (G.K.Dhir)

 Member                                                              President

Announced in Open Forum

Dated:23.10.2017

Gurpreet Sharma.