Punjab

Faridkot

CC/14/181

Mandip Singh - Complainant(s)

Versus

Improvement Trust - Opp.Party(s)

Ashu Mittal

16 Apr 2015

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :       181

Date of Institution:  19.12.2014

Date of Decision :    16.04.2015

 

Mandeep Singh Virk s/o Maan Singh Virk r/o #56, Giani Zail Singh Avenue, Faridkot, Tehsil and Distt Faridkot.                                            ...Complainant

Versus

1  Improvement Trust Faridkot, SCO 12-13, Giani Zail Singh Avenue, Sadiq Road, Faridkot through Chairman.

2  Improvement Trust Faridkot, SCO 12-13, Giani Zail Singh Avenue, Sadiq Road, Faridkot through Executive Officer.      

                               ....Opposite parties (Ops)

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh Ashwani Kumar Mehta, President,

Smt Parampal Kaur, Member,

Sh P Singla, Member.

 

Present:      Sh Ashu Mittal,  Ld Counsel for complainant,    

                  Sh Iqbal Kaushal, Ld Counsel for OPs.

 

 (A K Mehta, President)

                   Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Improvement Trust, Faridkot etc/Ops seeking directions to OPs to refund amount of Rs 2,47,500/-with interest and to pay Rs 50,000/- as compensation for mental agony and harassment and financial loss to complainant and for litigation expenses.

2                                            Briefly stated, the case of the complainant is that Ops launched a scheme for allotment of residential plots under Baba Jiwan Singh Nagar in Giani Zail Singh Avenue, Faridkot and demanded application from general public for allotment of plots; that complainant is serving in Indian Army and applied for allotment of plot measuring 300 Sq yards vide application no. 072 and also deposited Rs 2,47,500/-vide DD No. 015008 dt 5.08.2013; that Ops intended to auction or draw the plots in the month of November 2013 and before depositing Rs 2,47,500/-, Ops assured complainant that he is entitled to withdraw the amount at any time before fixing the date of auction of plots; that due to some financial constraints and exigencies of service, complainant gave an application dt 15.10.2013 to OP-1 for refunding the amount of Rs 2,47,500/- and OP-1 assured complainant that his amount would be refunded within one month and thereafter, Ops sent a letter no. 469-654 dt 31.10.2013 regarding auction/draw of plots and fixed a date 26.11.2013 for auction/draw of plots and after receiving the said letter, complainant approached the Ops and submitted application for refund of earnest money of Rs 2,47,500/- as complainant was not interested in taking part in auction/draw of plots and requested for refund of earnest money, but OP-2 put off the complainant on the pretext that the letter has been sent as per routine and process for refund of money has been started and the amount would be refunded within few days and on assurance of OP-2, complainant went away; that complainant again submitted application dt 17.10.2013 for refund of amount of Rs 2,47,500/- and thereafter, complainant approached Ops many times with request to refund his earnest money, but every times, Ops put off the complainant on one pretext or the other; that in November 2014, Ops sent a letter to complainant and declined the genuine request of complainant for refund of money without giving any cogent reason and thereafter, complainant approached Ops many times but Ops did not pay heed to the genuine request of complainant, 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 of Rs 50,000/- alongwith refund of Rs 2,47,500/-. Hence, the complaint.

3                                            The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 23.12.2014, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                                 On receipt of notice, OPs appeared in Forum through Counsel and filed reply, wherein took preliminary objections that complainant is not the consumer of Ops and this Forum has no jurisdiction to hear, try and decide the present complaint; that as per terms and conditions of Baba Jiwan Singh Nagar Scheme, it is clearly mentioned at Sr. No.  20 that if any dispute arises, the matter should be forwarded to Secretary/Principal Secretary, Local Bodies, Punjab for the arbitration and the decision of the Secretary/Principal Secretary, Local Bodies, Punjab or any official appointed by the Secretary, Local Bodies will be binding upon the allottee /purchasers and Improvement Trust and as this Forum has no jurisdiction to hear and try the present case, so, complaint is liable to be dismissed. However, on merits, Ops denied all the allegations levelled by complainant being wrong and incorrect and asserted that answering Ops never assured the complainant regarding refund of amount and as per terms and conditions of the Ops, matter of the complainant was sent to Secretary, Government of Local Bodies, Punjab and the Secretary, Govt of Local Bodies, Punjab rejected the case of complainant as there is no provision under the Town Improvement Act to refund the earnest money; that there is no deficiency in service or trade mal practice on the part of Ops and no harassment and financial loss is caused to complainant by the answering Ops, rather, complainant has filed a wrong complaint and is causing unnecessary harm and harassment to answering Ops; that complaint filed by complainant is totally false and baseless and is liable to be dismissed. All the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with special costs.

5                                  Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-6 and then, closed the evidence.

6                                     In order to rebut the evidence of the complainant, ld Counsel for OPs tendered in evidence affidavit of Kulwant Singh Executive Officer as Ex OP-1 and documents as Ex OP-2 to Ex OP-5 and then, closed the evidence.

7                                                We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file.

 8                                                    The Ld Counsel for complainant contended that Op floated a scheme namely Baba Jiwan Singh Nagar Scheme in Giani Zail Singh Avenue, Faridkot and in the said scheme, the complainant being an army personnel applied for allotment of plot measuring 300 square yard vide application no. 072 alongwith demand draft for Rs 2,47,500/- dt 5.08.2013. He contended that due to change in family circumstances and due to some financial implications, complainant applied for withdrawal of application on 15.10.2013 Ex C-3, when even date for allotment of draw was not fixed. He contended that even thereafter, OP sent a letter dt 31.10.2013 Ex C-5 informing the complainant that the date of draw is fixed as 26.11.2013 and even thereafter, complainant informed the OPs and also wrote a letter dated 17.12.2013 Ex C-2 that he has already withdrew his application from the allotment and refund is not made yet and requested for early refund of earnest money of Rs 2,47,500/-. He contended that thereafter, OP sent a letter Ex C-4 dated 28.10.2014 rejecting the request of complainant for withdrawal of application and forfeited the earnest money, which is totally illegal as complainant even applied for withdrawal of application and earnest money much before even the date fixed for draw regarding the allotment of plots. He contended that even thereafter, complainant requested the OP many times but with no effect and this act of the Ops has caused harassment and mental tension and financial loss to the complainant and ultimately, complainant had to file the complaint in hand and as such, complaint is required to be allowed and Ops are required to be directed to refund the earnest money alongwith interest besides compensation and litigation expenses as mentioned in the complaint.

9                                              The ld counsel for OPs contended that complainant is not consumer of the OPs as complainant himself admitted in the complaint that he has withdrawn his application for allotment of plot and thereafter, complainant ceases to be consumer of the OP. He further contended that even otherwise, OP is liable only if there was any deficiency in service on the part of OP and it is for the complainant to prove this fact and complainant has failed to prove any deficiency in service on the part of OP as OP Improvement Trust sent the request of the complainant alongwith its resolution but the same was not accepted by the State Government and consequently, on the basis of that rejection by the State Government, letter Ex C-4 was written to the complainant intimating that his application for withdrawal of allotment is rejected and his earnest money is forfeited and as such, complaint is totally false and is not maintainable and is liable to be dismissed.

10                                                      It is admitted fact that complainant being Army Personnel applied for allotment of plot in the scheme floated by Ops situated in Giani Zail Singh Avenue, Faridkot. It is also admitted fact that complainant initially filed application no. 072 in August 2013 and also attached  a demand draft no. 15008 dated 5.08.2013 for Rs 2,47,500/-. It is also an admitted fact that before the date fixed for allotment of plot by way of draw, the complainant applied for withdrawal of his application and for refund of his earnest money, but the OPs rejected the application of the complainant for withdrawal of application for allotment of plot and forfeited his earnest money vide letter Ex C-4.

  11                               Complainant applied for allotment of plot in August 2013 alongwith earnest money of Rs 2,47,500/- through demand draft dated 5.08.2013. Even before the date fixed for draw of lots for allotment of plot, complainant applied for withdrawal of application and refund of earnest money vide letter dated 15.10.2013 Ex C-3. The endorsement on the letter shows that it was received in the OP Improvement Trust on 21.10.2013. Even thereafter, OP informed the complainant that date for draw of lots is fixed as 26.11.2013 at 11.00 am which was not proper on the part of OP as even before that, complainant had withdrawn his application for allotment of plots. The matter did not stop here. The OP even allotted the plot in the name of complainant when much before that, complainant had withdrawn his application for allotment of plot. As such, the conduct of the OP is not in accordance with the law and is illegal.

12                                  The OP even passed a resolution Ex OP-2 in which it is stated that the applicant (complainant) had withdrawn his application even before draw as per conditions of PUDA and even passed a resolution for refund of earnest money of complainant. This rather supports the plea of the complainant that he applied for withdrawal of his application before even date fixed for draw or even before allotment of plot to the complainant. In this eventuality, the name of the complainant should not have been included in the draw for allotment of plots and his earnest money should have been returned in accordance with the terms and conditions of the scheme. The complainant has proved terms and conditions of the scheme Baba Jivan Singh Nagar, Faridkot Ex C-6. The condition 9 provides that applicant would not be entitled for any interest on earnest money if he takes part in the draw. Then condition 25 provides that if applicant remains unsuccessful in allotment of plot then his earnest money would be returned without interest. The complainant stands on better footing than a person who remains unsuccessful in draw of lots as the complainant had not taken part even in the draw and had not taken any chance for being successful or unsuccessful. If a person is declared unsuccessful for the allotment of plot by the draw and is entitled for refund of earnest money though without interest then, how complainant can be denied the refund of his earnest money when he applied for withdrawal of his application even before the date fixed for draw of lots or before even allotment was made. It shows arbitrariness on the part of the OP in including the complainant in the draw when he has already withdrawn his application for allotment of plot and subsequently rejecting his request for withdrawal of application and forfeiting his earnest money. It was also contended by the OP that complaint is not maintainable as the matter is required to be referred to the Arbitrator as per condition 20 of the Scheme but even this plea is not maintainable as remedy provided under the act is additional remedy and cannot be denied to the complainant in view of the condition 20 of the scheme. In case titled Brig. Savi Pal Singh Gyani (Redt) Vs Surinder Singh 2013 (2) Consumer Law Today page 437, agreement was executed between the parties in which an arbitration clause was inserted excluding the jurisdiction of the fora but the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh observed that said arbitration clause in the agreement cannot exclude the jurisdiction of the fora under the Act because according to Section 3 of the Act, the remedy provided under the Act is in addition to and not in derogation of the provisions of any other law for the time being in force. As such, the arbitration clause included in the terms and conditions of the scheme does not exclude the jurisdiction of this Forum. Moreover, in case titled as Super Textiles appellant Vs Punjab Small Industries & Export Corporation Ltd & Anr respondents 2006 (II) Consumer Protection Judgment page 149, application for allotment of plot was made and earnest money was also deposited but later on after the allotment of plot, the applicant requested for cancellation of allotment and allotment was cancelled but deposited amount was not refunded and thereupon, applicant filed complaint  in the Forum which was dismissed but on appeal, it was observed by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh that refund cannot depend upon subsequent allotment of plot and on acceptance  of cancellation, refund is payable immediately after deducting 10 % of earnest money as complainant is consumer and is entitled to relief and accordingly, order of the Forum was set aside and refund after 10 % deduction was directed and interest of 9 % was also awarded. The case in hand stands on even better footing because in the referred case, the request for cancellation of allotment was made after the allotment whereas, in the case in hand, the request for withdrawal of application for allotment of plot was made even before date fixed for draw of lots for allotment of plots. As such the letter Ex C-4 sent by the OP is illegal and arbitrary and is not sustainable and complainant is entitled for refund of earnest money alongwith interest and for compensation for harassment.

13                                  In the light of above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of complainant and against the OP and complainant is held entitled to refund of Rs 2,47,500/-alongwith interest at the rate of 9% per anum from the date of request for withdrawal of application i.e 21.10.2013 till realization of the amount. Complainant is also held entitled to Rs 10,000/- as compensation on account of harassment and mental agony and Rs 2,000/-as litigation expenses. The OP is directed to comply with the order within two months from the date of receipt of the copy of the order, failing which complainant can initiate proceedings under section 25 and 27 of the Consumer Protection Act. Copy of order be supplied parties free of costs as per rules. File be consigned to record room.

 Announced in open Forum:

  Dated: 16.04.2015                              Member                       Member                    President                                                          (Parampal Kaur)          (P Singla)                  (A K Mehta)