DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT Complaint No. : 164 Date of Institution: 08.10.2018 Date of Decision : 22.04.2019 Anita Kumari aged 40 years w/o Sanjeev Kumar S/o Des Raj R/o Line Bazar, Street No.3, Faridkot, tehsil and Distt. Faridkot. ....Complainant Versus - Improvement Trust, Faridkot SCO 12-13 Giani Zail Singh Avenue, Sadiq Road, Faridkot through its Chairman.151203, ,
- Improvement Trust, Faridkot, SCO 12-13, Giani Zail Singh Avenue, Sadiq Road, Faridkot through its Executive Officer.151203
....Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986. ********** Quorum: Sh. Ajit Aggarwal, President Smt. Param Pal Kaur, Member. Present: Sh. Ashu Mittal, Ld Counsel for Complainant, Sh.Iqbal Kaushal, Ld Counsel for OPs. (Ajit Aggarwal, President) Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to refund the amount of Rs.11,26,250/- deposited by him with OPs with interest and to pay Rs.1,00,000/- as compensation for mental agony and harassment and financial loss to complainant besides litigation expenses. 2 Briefly stated, the case of the complainant is that through newspaper, Ops invited applications for allotment of residential plots in Baba Jiwan Singh Nagar Ferozepur Road-Pakhi Road, Faridkot and complainant applied for 200 square yards plot in the scheme of Faridkot Improvement Trust, Faridkot and deposited Rs.1,10,000/- through Demand Draft alongwith all requisite documents. Vide memo no. 149 dt 02.04.2014, complainant was allotted plot no. 70 measuring 200 square yards under Development Scheme of OPs through draw dt 26.11.2013. As per all terms and conditions of OPs, complainant paid Rs.11,26,250/- i.e Rs.1,10,000/-as earnest money alongwith application and Rs.1016250/- i.e total of Rs.11,26,250/- were deposited by complainant with OPs. It is further submitted that agreement to sell was executed and signed between complainant and OPs at Faridkot. It is further submitted that complainant has already complied with all the terms and conditions for the allotment of said plot, within one month from the date of execution of said agreement and as per condition no. 6 of memo number 149, complainant was to built or got constructed the house within three years from the date of allotment and as per agreement, OPs were bound to deliver the actual and physical possession of the plot to complainant immediately as per clause 3 of said memo, but OPs have neither demarcated nor given the actual and physical possession of said plot to complainant till date. Complainant made many requests to OPs to deliver the possession of plot in question to complainant, but they did not do so. Complainant has abided by all the terms and conditions of installments but OPs have not fulfilled their terms of contract. Complainant has suffered huge loss as he has paid major portion of his hard earned money of his life with OPs. Complainant made many requests to OPs, but all in vain. All this amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and financial loss to complainant for which he is entitled for compensation along with possession of said flat. Hence, the present complaint. 3 The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 09.10.2018, complaint was admitted and notice was ordered to be issued to OPs. 4 On receipt of notice, OPs appeared in Forum through Counsel and filed reply taking objections that complaint filed by complainant is false, frivolous and vexatious and there is no deficiency in service on the part of OPs. It is asserted that there is no such condition in the agreement between the parties regarding handing over of possession of plot to complainant within one month from the date of agreement. Denying all the allegations of complainant, ld counsel for OPs averred that OPs issued letter dated 3.03.2016 to complainant requesting him to take the possession of plot in question and said letter was duly received by complainant, but he failed to take possession of said plot and thus, complainant himself is at fault and he cannot get the benefit of his own wrong. It is further averred that allegation of complainant are totally baseless and concocted ones as work of construction of roads and boundary wall is in progress and for laying under-ground sewerage pipes, permission of Punjab Water Supply and Sewerage Board, Moga is being sought vide Trust Resolution No. 47 dated 28.06.2016 and the case has been forwarded to the State for its approval. For laying down the water supply pipes, the requisite money is being deposited with the Water Supply and Sewerage Division, Moga and as such, OPs are fulfilling all the terms and conditions as per the agreement executed between the parties. It is further reiterated that vide letter dated 3.03.2016, OPs requested complainant to take possession of plot purchased by him, but he did not do so and now, he is not entitled to get any benefit for his own conduct. Moreover, he never visited the office of OPs to take possession of said plot. There is no deficiency in service on the part of OPs. refuting all the other allegations and allegations with regard relief sought, ld counsel for OPs have prayed for dismissal of complaint with costs. 5 Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-10, documents Ex C-1 to C-9 and then, closed the evidence. 6 In order to rebut the evidence of the complainant, ld Counsel for OPs tendered in evidence affidavit of Charan Nath as Ex OP-1, documents Ex OP-2 to OP-11 and then, closed the evidence. 7 Ld Counsel for complainant vehemently argued that through newspaper, Ops invited applications for allotment of residential plots In Baba Jiwan Singh Nagar Ferozepur Road-Pakhi Road, Faridkot and complainant applied for 200 square yards plot in the said scheme of Faridkot Improvement Trust, Faridkot and deposited Rs.1,10,000/- through Demand Draft alongwith requisite documents. Vide memo no. 149 dt 2.04.2014, complainant was allotted plot no. 70 measuring 200 square yards under Development Scheme of OPs through draw dt 26.11.2013. As per terms and conditions of OPs, complainant paid Rs.11,26,250/- to OPs as price of the said plot and agreement to sell was executed and signed between complainant and OPs at Faridkot. It is further submitted that complainant has already complied with all the terms and conditions for the allotment of said plot, within one month from the date of execution of said agreement and as per condition no. 6 of memo no.149, complainant was to built or got constructed the house within three years from the date of allotment and as per agreement, OPs were bound to deliver the actual and physical possession of the plot to complainant immediately as per clause 3 of said memo, but OPs have neither demarcated nor given the actual and physical possession of said plot to complainant till date. Complainant made many requests to OPs to deliver the possession of same to him, but they did not do so. Though complainant has abided by all the terms and conditions of installments but OPs have not fulfilled their terms of contract and he has suffered huge loss as he has paid major portion of his hard earned money of his life with OPs. Complainant made many requests to OPs, but all in vain, which amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and financial loss to complainant for which he is entitled for compensation and relief sought. He has stressed on documents Ex C-1 to 11 and prayed for accepting the present complaint. 8 To controvert the allegations of complainant, Ld Counsel for OPs argued that complainant has filed false, frivolous and vexatious complaint and there is no deficiency in service on their part. It is asserted that there is no such condition in the agreement regarding handing over of possession of plot to complainant within one month from the date of agreement. Denying all the allegations of complainant, ld counsel for OPs averred that OPs issued letter dated 3.03.2016 to complainant requesting him to take the possession of plot in question and said letter was duly received by complainant, but he failed to take possession of said plot and thus, complainant himself is at fault and he cannot get the benefit of his own wrong. It is further averred that allegations of complainant are totally baseless and concocted as work of construction of roads and boundary wall is in progress and for laying under-ground sewerage pipes, permission of Punjab Water Supply and Sewerage Board, Moga is being sought vide Trust Resolution No. 47 dated 28.06.2016 and the case has been forwarded to the State for its approval. Requisite money for this purpose is being deposited with the Water Supply and Sewerage Division, Moga and as such, OPs are fulfilling all the terms and conditions as per the agreement executed between the parties. It is further reiterated that vide letter dated 3.03.2016, OPs requested complainant to take possession of plot purchased by him, but he did not do so and now, he is not entitled to get any benefit for his own wrong conduct. It is asserted that complainant never visited the office of OPs to take possession of said plot. There is no deficiency in service on the part of OPs. All the other allegations are refuted with a prayer to dismiss the complaint. He has stressed on documents Ex OP-1 to 11. 9. We have heard the arguments of both the parties and also gone through the pleadings and evidence led by both the parties. The case of the complainant is that he applied for allotment of plot in the scheme launched by OPs and he get allotted the plot measuring 200 Sq Yds vide allotment letter dated 02.04.2014 and he deposited Rs.1126250/- as price of the plot with OPs on different dates against duly issued receipts, as per terms and conditions of the allotment the OPs have to deliver possession of the plot within one month, after completing all the development work on the site but the OPs failed to deliver the possession of the plot after completing the entire development work. Even on the spot no development work started till today and even no demarcation of the plot was made on the spot, so he demand his amount be refunded along with interest. In reply the OPs admitted that the complainant was allotted a plot in the scheme launched by them and he deposited the amount with them as part payment of the price as alleged by the complainant. They denied that they did not start the development work. They pleaded that they are doing their level best to start development at site. He argued that OPs passed resolution for starting development work on the site and also wrote letters to Punjab Water Supply and Sewerage Board to start the work which is sent to the State Government for its approval and the approval by State Government is still pending. He argued that OPs are ready to deliver the possession of the plot to the complainant and there is no deficiency in service and trade mal practice on the part of the OPs. The Counsel for the complainant argued that as admitted by the OPs themselves that they sent the proposal for development work on the site to State Government for approval who is yet pending, so it is admitted fact that there is no development work started on the spot and all is in the papers in reply to allegation of OPs that the complainant is himself in default for not executing the agreement of sale in time and also not deposit the installment of the plot in time. On this point he put reliance on the citation 2015 (3) Consumer Law Today, 48 titled as EMAAR MGF Land Ltd and anr. Vs Dilshad Gill, whereas Our Hon’ble National Commission, New Delhi observed “ Consumer Protection Act, 1986, Section 2 (i) (g)- Housing Construction-Delay in possession by appellant/Builder-Complainant/respondent defaulted in payment-Held-Appellants themselves have violated the material conditions with regarding to handing over of the possession, now it does not lie in their mouth to demand further payment from the respondent-The respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period. On the plea of the OPs that they are ready to deliver the possession of plot in dispute. They wrote letters to this fact to complainant. The Counsel for the complainant argued that there is no development and basic amenities on the site, so the mere possession of the plot is not sufficient. He put reliance on the citation citation 2015 ( 2 ) Consumer Law Today, 39 titled as M/s Ashiana Housing Ltd. Vs Yog Raj Vij, Our Hon’ble National Commission, New Delhi observed that Consumer Protection Act, 1986, Section 2 (1) (g)-Flat Allotment-offer of possession-Mere offer of possession when the external services are far from complete, cannot amount to fulfilment of the contractual obligation undertaken by the builder-Unless the external development including common facilities is ready for use, a buyer cannot conveniently make use of the flat allotted to him-Revision Petition dismissed. He argued that as the complainant has already paid a substantial part price of the plot but the OPs has failed to deliver the possession of the plot after the development work, even they fail to start the development work till today. There is no right to retain the amount with them and this amount should be refunded to the complainant. He put reliance on the judgments dated 04.09.2015 passed by Our Hon’ble National Commission, New Delhi in first appeal no.1215 of 2014 titled as Jalandhar Improvement Trust Vs Munish Dev Sharma in it our Hon’ble National Commission observed that Furthermore, appellants after having taken substantial amount from the respondents in the year 2011, are still enjoying their hard earned money for last many years. Now, when appellants are not in a position to allot the plots in a habitable condition to the respondents, then why they are still withholding respondents’ money. There is no reasonable and plausible explanation, in this regard from the side of the appellants. We deplore such “unfair trade practices” being adopted by the Appellant-Trust, which is a Public Body. It would also be pertinent to observe, that appellants have not given any firm date of handing over the possession of plots in question, to the respondents which also is a “ Deceptive Practice”. The appellants should have given firm date of handing over of possession, at the time of taking booking amount. By not indicating the true picture with regard to their scheme to the respondents, appellants induced them to part with their hard earned money, which also amounts to “unfair trade practice”. Thus, appellants by not delivering the physical possession of fully developed plots to the respondents, till date even after having received more than 90% of the price thereof, are not only deficient in rendering service but are also guilty of indulging into “unfair trade practice”. Appellants in the present case, “wants to have the cake and eat it too”, as admittedly they have received about 90% of the sale price of the plots. The appellants are thus enjoying possession of the plots as well as substantial amount of consideration paid by the respondents. On the other hand, respondents after having paid substantial amount of the sale consideration, are still empty handed. They further observed that such type of unscrupulous act on the part of Appellant-Trust should be dealt with heavy hands, who after grabbing the money from the purchasers, enjoy and utilize their money but do not hand over the plots on one pretext or the other. Appellants want the respondents to run from one fora to other, so that appellants can go on enjoying the respondents’ money without any hindrance. It is well settled, that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless appeal in consumer foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree, must be dealt with heavy hands. Unscrupulous developer like Appellant-Trust, who after taking almost entire cost of the plots, do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of Public Bodies. He further argued that complainant is entitled for the interest along with penal interest on the amount deposited by him with OPs as the OPs violated the terms and conditions of the scheme. He put reliance on the citation 2015 ( 1 ) Consumer Law Today, 552 titled as Puneet Malhotra Vs Parsvnath Developers, decided by Hon’ble National Commission, New Delhi: Consumer Protection Act, 1986, Section 2 (1) (g) & Interest Act, 1978- Allotment of flat-Housing Construction-Delay in construction-Interest-held- As per the agreement between the parties, the complainant was required to pay interest @ 24% PA in the event of delay on his part in making payment to the opposite party-Logically, if the seller is charging interest from the buyer @ 24% PA, it should have no hesitation in paying the interest at the same rate to him in the event of its failure to complete the construction of the flat within the time frame agreed between the parties. Ld. Counsel for the complainant put reliance on Circular dated 23.02.1983 issued by the Local Government of Punjab, this circular contains the guidelines for the fixation of realization of interest in respect of plots falling in the various schemes of Improvement Trusts. The very first guideline is that as far as possible the Improvement Trusts shall allot/auction the sites only when they are sure that they are in a position to deliver the possession of site to the purchaser. The notice for the delivery of possession is required to be issued to the purchaser within 30 days of the allotment/acceptance of bid indicating the time at which he should be present for taking of the possession. It is also contained in that circular that where the authorities are not in position to deliver the possession immediately, interest, penal interest and penalty on the payment of instalments is to start only from the date on which the possession of the site is delivered to the purchaser and not from the date of the receipt of the allotment letter by him. Ld. Counsel for the complainant argued that in a similar complaint with similar facts and cause of action against OP with regard to same colony i.e. Baba Jiwan Singh Nagar Ferozepur Road-Pakhi Road, Faridkot bearing C.C.No.1073 of 2017 titled as Jaswinder Singh Vs Improvement Trust, Faridkot, Our Hon'ble State Commission, Punjab, allowed the complaint against the Ops vide this order dated 07.05.2018 and held that the Trust is under obligation to deliver the possession of the fully developed plot within a reasonable period. The Complainant cannot be made to wait indefinitely to get possession of the plot booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite parties i.e. Trust knew from the very beginning that it would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainant to book the plot, due to which the complainant has suffered mental agony and harassment. He prayed that the present complaint in hand is may be allowed and OPs may be directed to refund amount deposited by the complainant with them along with interest. 10. We have thoroughly gone the file and evidence and also case law produced by the complainant. It is admitted case of the parties is that complainant was allotted a plot by OPs and he paid Rs.1126250/- price of the plot to the OPs but OPs fail to start development work on the site and to give possession of the plot. The pleadings of the Ops itself shows that they have not start any development work of the scheme at the site and only development work is done in the file. They pleaded that they passed resolution regarding development work and wrote letters to Water Supply and Sewerage Board, and sent the same to the State Government for approval which are yet pending with State Government for approval which clearly shows that there is no sign of development work on the site and all work is in the papers, so in these circumstances all these acts of the OPs amounts to deficiency in service and trade mal practice. As per the allotment letter, they have to deliver the possession of the plot after completion of entire development work within one month of the allotment letter but the OPs failed to deliver the possession of the plots after completing the development work within stipulated period. The Ops are not entitled to retain the money paid by the complainant to them as price of the plot. Moreover till today the Ops are not in the position to give assurance that when they would complete the development work on the site and deliver the possession of the plot after it. 11 In the light of above discussion, the present complaint is hereby allowed. The Ops are ordered to refund amount of Rs. 11,26,250/- which was received by them from the complainant as price of the plot along with interest @ 12% PA from the date of its deposit till final realization. OPs are also burdened to pay Rs 5000/-as litigation expenses to the complainant. Ops are directed to comply with the order within one month from the date of receipt of the copy of the order failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost. File be consigned to the record room. Announced in Open Forum Dated: 22.04.2019 (Param Pal Kaur) (Ajit Aggarwal) Member President |
