Complainant Ravinder Puri has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to refund the amount paid in excess of Rs.3,49,544/- alongwith interest @ 18% per annum till its realization, expenses to the tune of Rs.20,000/- and Rs.50,000/- for mental torture and agony and any other relief which may be deem fit be granted to him, in the interest of the justice.
2. The case of the complainant in brief is that the auction of Shop No.58, First Floor, Area no.2 and 3, Part-1 was ordered on 4.10.2015. He also participated in the auction conducted by the opposite party and he was a successful bidder. He purchased the abovesaid shop for running his sports business to earn his livelihood. His bid was accepted for a sum of Rs.7,70,000/- vide resolution no.2/53 dated 29.11.2015. The requisite amount of Rs.1,92,500/- i.e. 25% was deposited on the spot and the remaining auction amount was payable within five installments but there was default on his part regarding the remaining installments. He has further pleaded that on 25.11.2013 a letter bearing reference no.2297/PIT dated 25.11.2013 was received by him regarding due payment from him which was to be deposited within 7 days from the receipt of notice. He deposited a sum of Rs.1,00,000/- on 5.12.2013 and another a sum of Rs.1,00,000/- was also deposited on 27.12.2013 in cash against the receipts. Another letter bearing no.2715/PIT dated 15.1.2014 was received by him in which it was demanded from him that the entire due amount may be deposited with the opposite parties on or before 31.1.2014. He approached the opposite party to deposit the amount of Rs.3,68,000/- but the officials of the opposite parties did not accept the amount and ultimately refused on 3rd of February 2014 to accept the amount in the shape of draft, however the draft was sent through registered post to the opposite parties on 11.2.2014 but the draft was not encashed and other letter was issued by him with the request that the NOC may be sent to him alongwith No Due Certificate which was sent by him on 2.6.2014 but no reply was received and a copy of letter was also sent to Principal Secretary, Local Bodies, Chandigarh. He received a letter from the Chief Secretary dated 24.2.2015 with the observation that the representation made by him was treated as a appeal against the order of Improvement Trust Pathankot dated 7.2.2014 against resumption of the shop no.58, First Floor, Scheme 2 and 3 part-1 for non payment of installments and other dues vide resolution dated 7.2.2014. It was mentioned in the said letter that the government has taken a policy decision vide order no.11/5/2015 (29)-2LG2/403010/1 dated 29.1.2015 allowing one time opportunities to those allottees who failed to deposit payment on account of installments, interest penal interest etc. In the past to pay such payment upto 31.3.2015 and get their plots regularize/restored. He approached to the opposite party to accept the amount as per their entitlement. The total amount as principal amount was due only for a sum of Rs.3,68,000/- including the interest but thereafter the opposite party put additional penalty @ 20% and another penalty in addition to 20% as 6%. The opposite party also computed the interest on Rs.3,68,000/- @ 18% per annum which is penal in nature and opposite party cannot claim penal interest as per rules and policy of the government. The amount of Rs.3,68,000/- which was paid vide draft as mentioned above was wrongly withheld by the opposite party and it was not encashed by the opposite party as such no another amount was recoverable by the opposite parties. The opposite parties wrongly received a sum of Rs.3,49,544/-. This fact came to his knowledge afterward the amount was deposited by him as an initial stage, he was willing to deposit the amount under protest but the opposite parties refused to accept the amount under protest. The amount in excess amounting to Rs.3,49,544/- was wrongly taken by the opposite party from him which is against their entitlement, as such illegal act was committed by the opposite party. Hence this complaint.
3. Notice of the complaint was issued to the opposite parties who appeared through their counsel and filed their joint written reply by taking the preliminary objections that the complaint is not maintainable; the complainant is having no cause of action and locus standi to file the present complaint; the opposite parties are not deficiency in providing any such service to the complainant and the complainant is not entitled for any relief under the act as prayed for as he has not come to the Forum with clean hands and has concealed the material facts from this Forum, as he has not disclosed his own acts and conducts. On merits, it was submitted that the shop in question was regularized/restored on making the payment by the complainant, vide policy decision of the Govt. vide which one time opportunity as granted to the make the payment of installments by the defaulters alongwith the interest, penal interest etc, to get their pots restored, and in pursuance of that the complainant deposited the amount and as such there is no any deficiency and negligence on the part of the opposite parties. All other averments made in the complaint have been denied and lastly the complaint has been prayed to be dismissed with costs.
4. Complainant tendered into evidence his own affidavit Ex.C1/A, alongwith other documents Ex.C1 to Ex.C19 including Ex.C13A and Ex.C-18A and closed the evidence.
5. Sh.Rajesh Kumar, Record Clerk of opposite parties tendered into evidence his own affidavit Ex.OP1 and closed the evidence.
6. We have duly heard the learned counsels for both the sides in the back drop of the legally applicable and statutorily acceptable merit as evidenced by the supporting document(s) duly produced on record by the litigating parties in order to statutorily resolve the inter-se dispute (under the C P Act’ 1986) prompting the present complaint. We find that the complainant had admittedly deposited in full the auctioned amount of Rs.7,70,000/- by 31.01.2014 (last opportunity date) along with full penalty interest etc for late payment against valid money receipts of various dates exhibited here as: Ex.C2 to Ex.C5, Ex.C7 & Ex.C8 followed by final payment vide DD dated 01.02.2014 for Rs.3,68,000/- since amount in cash was not accepted on 31.01.2014; and stayed deposited with the OP Trust till 27.03.2015 (before the finally extended one-time date of 31.03.2014) when it was finally accepted along with the hefty ‘resumption cancellation’ penalty charges amount of Rs.3,49,544/- vide Receipt # 770 of even date for Rs.7,17,544/-. The present dispute comprises of refund of penalty amount of Rs.3,49,544/- along with interest/compensation etc. We observe that the present dispute pertains to infringement of consumer rights by way of ‘unfair trade practice’ in settlement of cost (interest, penalty & charges etc) of the allotted shop and not the ‘infrastructural’ facilities thus the complainant shall be ‘consumer’ under the provisions of the applicable statute.
7. We find that there has been ‘mention’ of ‘resumption penalty’ charges and one time settlement before last opportunity date of 31.03.2015 in the ‘orders’ (Ex.C14) in appeal of the resumption matter of the allotted shop but the appealed against ‘resumption’ letter has not been produced on the records by the OP Trust in spite of the complainant’s denial of having received the same. The Certificate dated 13.04.2015 (Ex.C-17) duly certifies receipt of the full cost price of allotted shop # 58 that was in default as per the minutes of the OP Trust meeting (Ex.C-18) but the OP Trust has not produced the terms of OTS (one time settlement) with its last date as 31.03.2015 and as such the penalty of Rs.3,49,544/- collected from the subserviently placed complainant has been an arbitrary OP’s act amounting to ‘unfair practice’ and ‘deficiency in service’ on the OP Trust’s part. The ‘restoration’ and other charges @ 20% etc. as prescribed shall not be applicable under the One Time Settlement scheme as it shall defeat the very purpose and essence of the subjected relief.
8. We also observe that the OP Trust has filed only the lone affidavit (Ex.OP1) of its clerk Rajesh Kumar to prosecute its defense with however no cogent evidence to prove the legal validity of the arbitrarily collected penalty charges as part of the one-time-settlement scheme. Thus, we set aside the penalty charges of Rs.3,49,544/- collected on 27.03.2015 since the amount of the accompanying DD includes the balance cost of the allotted shop # 58 along with the penalty interest charges etc as per the original terms of allotment. We also determine that the OP Trust authorities are fully liable to repay the amount that was coercively collected from the present complainant as penalty charges.
9. In the light of the all above, we partly allow the present complaint and thus ORDER the opposite parties (Improvement Trust authorities) to refund and pay the collected penalty amount of Rs.3,49,544/- to the complainant along with the up to date accrued interest at the applicable Savings Bank Deposit Rate @ 4% PA besides to pay him Rs.5,000/- as litigation cost and compensation (for having suffered undue harassment for none of his fault) within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall carry an additional interest @ 9% PA from the date of orders till actual payment.
10. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
ANNOUNCED: (Jagdeep Kaur)
September 16, 2016. Member
*MK*
