BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.353 of 2016
Date of Instt. 16.08.2016
Date of Decision: 02.05.2018
Kamlesh Kumari age about 62 years wife of Sh. Vinod Kumar resident of 387-L, Model Town, Yamuna Nagar, Haryana.
..........Complainant
Versus
1. Jalandhar Improvement Trust, G.T. Road, Jalandhar, Near Public Relation Office, Jalandhar through its Chairman/Executive Officer.
2. Secretary to Government of Punjab, Department of Local Government, Punjab, Chandigarh.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. Ravinder Manuja, Adv Counsel for the Complainant.
Sh. Brijesh Bakshi, Adv Counsel for OP No.1.
OP No.2 exparte.
Order
Karnail Singh (President)
1. This complaint is filed by the complainant, wherein alleged that the OP No.1, Jalandhar Improvement Trust, Jalandhar is an entity created by the Government of Punjab under the statute for developing and providing residential and commercial plots, housing projects, flats, shops etc. to the general public. The OP No.1 floated a scheme for registration of HIG (Ten Storyed) Supper Deluxe Flats namely “119 HIG SUPER DELUXE JIT APPARTMENTS”, situated in Surya Enclave, Jalandhar and for the purpose of allotment of flats, invited the applications from the general public and brochures were sold through various agencies and the scheme was opened for the period from 03.03.2014 to 16.04.2014, thereafter,period of the same was further extended upto 19th May, 2014. The allotment of flats under the said scheme was based upon the terms and conditions contained in the brochure and under the 'Punjab Town Improvement Rules 1983' as amended upto date. That based upon the above said advertisement in the daily newspaper, the complainant purchased a brochure from Punjab National Bank, Mohali for Rs.300/-, Form No.90250 and applied for the allotment of flat on 18.04.2014 and as per terms and conditions of the scheme, contained in the brochure, deposited a bank draft of Rs.6,50,000/-, bearing DD No.819519383 dated 12.04.2014 drawn on Indian Overseas Bank, payable at Jalandhar City, in favour of The Chairman Jalandhar Improvement Trust, Jalandhar as earnest money. The application was submitted with Punjab National Bank, Mohali, the said bank in their turn forwarded the application of the complainant in original to Jalandhar office on 23.04.2014.
2. That after filing an application for allotment of flat, the complainant visited Jalandhar to know the actual and factual position of the scheme and came to know that only few applications have come for the allotment of flats, because the location where the flats are to be constructed is not good and working of the OP is also not satisfactory so considering the said factors in mind complainant thought it will be better to withdraw her application as per terms and conditions mentioned in the brochure, the terms and conditions regarding withdrawal of application contained in the brochure are as follow:-
“WITHDRAWAL:- If the applicant submits an application for withdrawal of his application before the draw of lots, 10% of earnest money will be deducted being withdrawal of application/cancellation charges, provided the said application is received in the office of Jalandhar Improvement Trust ten days before the announced date of draw.
3. The complainant exercised this option of withdrawal and for that purpose, complainant submitted in writing request for withdrawal of her application on 06.06.2014, and the application was delivered personally in the office of OP No.1. Thereafter, the OP No.1 issued a letter bearing No.JIT/1472 dated 11.07.2014 addressed to the complainant. the date of draw of flats was fixed for 30.07.2014 at 11:00 AM in the office of OP No.1, meaning thereby the application for withdrawal of the application for allotment of flat was made much before 10 days time as stipulated in the brochure. The complainant received a letter on 15.07.2014, bearing No.JIT/1472 dated 11.07.2014 sent by OP No.1, intimating to the complainant that the date of draw of flats is 30.07.2014 at 11:00 AM in the office of OP No.1. On receipt of the said letter, the complainant immediately wrote an other letter to the OP and informed the OP that the complainant is not interested to participate in the draw and her application for allotment of flat may not be put in the draw, it was further made clear that a request to this effect has already been made on 06.06.2014 and the acknowledgment of the same is available with the complainant. After the above said communication with the OP No.1, the complainant never received any letter from the OPs or any refund amount of earnest money against the withdrawal/cancellation of her application bearing No.90250 dated 18.04.2014. The complainant again approached the OP No.1 time and again requesting them to refund the amount of earnest money as per terms and conditions of the brochure, but the OP No.1 did not pay any heed to the genuine request of the complainant rather the OPs illegally withholding the amount deposited by the complainant as earnest money and ignoring the fact that the complainant as per terms and conditions made a request for withdrawal of her application much before the time stipulated in the brochure. Feeling perturbed by the delaying attitude of the OPs the complainant again personally visited the office of OP No.1 on 01.06.2015 and gave a request in writing along with copies of previous requests dated 06.06.2014 and dated 15.07.2014 and through the said letter, requested the authority concern to refund the amount of earnest money illegally withheld by the OPs. The complainant again visited the office of OP No.1 on 13.06.2016 and met the dealing official of the OP No.1 and requested for the refund of earnest money, but again the OP did not pay any heed to the genuine request of the complainant and thereafter to the utter surprise of the complainant, received a letter bearing two dispatch numbers of different dates i.e. No.JIT/1227 and 2037 dated 27.06.2016 and 22.07.2016 from the office of OP No.1 issued under the signature of Executive Officer, where by informed the complainant that a Flat HIG Supper Deluxe Flat No.1012 is allotted to the complainant and further asked the complainant to make the payment as tabulated in the letter and have also threatened in case failed to make a payment within a stipulated period of 30 days, then the allotment will be cancelled and deposited the earnest money will be forfeited. The act and conduct of the OPs for not refunding the earnest money deposited by the complainant is tantamount to unfair trade practice and deficiency in service, which is causing inconvenience, harassment, mental tension, loss of money and cruelty to the complainant and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund earnest money of Rs.6,50,000/- alongwith interest @ 24% per annum from the date of letter 06.06.2014 and further OPs be directed to pay damages to the tune of Rs.2,00,000/- and litigation expenses.
4. Notice of the complaint was given to the OPs and accordingly, both the OPs appeared and filed written reply, whereby contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the OP. It is further averred that the compliant for seeking the relief of the refund of earnest money is not maintainable. No cause of action survives as claimed in the instant complaint. The allotment has already been made against the said earnest money, which has later on stood canceled and earnest money forfeited under the Punjab Town Improvement Act 1922 Rules, Bye-laws and Government Instructions as well as the conditions of allotment and there has been no challenge thereto and thus the present complaint is not maintainable. It is further averred that the present complaint is an abuse of process of law. No actionable claim has arisen to the complainant to file the present complaint against the OP. The earnest money cannot be refunded as per the terms and conditions of the brochure, application and allotment of flats. Even otherwise the complainant is a defaulter and had failed to pay even the one fourth amount of the sale price in time to Jalalandhar Improvement Trust. The fact of the matter is that the complainant was applied for allotment of HIG Flat Super Deluxe Flat in Surya Enclave Development Scheme of Jalandhar Improvement Trust. The application and earnest money was deposited by the complainant on 12.04.2014. Thereafter, the draw of the scheme was scheduled and announced for 30.07.2014 and in the meanwhile, vide application dated 06.06.2014, the complainant applied for the refund of Earnest Money under the withdrawal clause of the brochure. However, as the application was received after the date for draw of lots had been scheduled and announced as such the refund was not maintainable and could not be granted to the complainant and accordingly, a letter dated 11.07.2014 was issued to the complainant to join the draw of lots on 30.07.2014 and accordingly, the complainant was allotted a flat No.1012 Super HIG Flat in the 170 Acre Development Scheme and accordingly, a allotment letter dated 27.06.2016 was issued to the complainant, but the same could not be delivered due to the reason the house of the complainant was reported by the postal Authority as locked and then the same was sent to the complainant through ordinary post on 22.07.2016. As per conditions of the allotment, the complainant was to deposit the remaining ¼ sale money and to enter into sale agreement within 30 days from the date of issuance of the allotment letter, but the complainant failed to deposit the same and so, Letter dated 22.08.2016 was issued to the complainant to deposit the same along with 6% surcharge, failing which the amount deposited as Earnest Money was to stand forfeited without any further notice and accordingly, when the complainant defaulted in terms of the allotment letter, then the allotment of the complainant was cancelled and earnest money deposited by the complainant was forfeited and the said order was conveyed to the complainant, vide letter dated 25.10.2016 and 09.11.2016. It is further alleged that the present complaint of the complainant for refund of earnest money is barred by limitation and as such, the same is liable to be dismissed and further submitted that the complainant has concealed the material facts from the Forum and therefore, the complainant is not entitled for the relief claimed. On merits, the submission of application for allotment of the flat, deposit of the earnest money as well as filing an application for withdrawal of the application, are admitted by the OP, but the remaining facts as contained in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
5. In order to prove the case of the complainant, complainant herself tendered into evidence her duly sworn affidavit Ex.CA along with some documents Ex.C-1 to Ex.C-13 and closed the evidence.
6. Similarly, counsel for OPs tendered into evidence affidavit Ex.OA alongwith some documents Ex.O-1 to Ex.O-5 and closed the evidence.
7. We have heard the learned counsel for the respective parties and also gone through the written arguments submitted by the learned counsel for the OP and also gone through the case file very minutely with the able assistance of both the counsel for the parties.
8. From the over all circumstances as come before us by way of pleading as well as argument put forth by the learned counsel for the parties, which itself shows that the complainant has applied for a flat in response to the advertisement given by the OP that a scheme was opened for allotment of flat i.e. 119 HIG Super Deluxe JIT Apartments, situated in Surya Enclave Jalandhar and thereafter, the complainant filed an application No.90250 on 18.04.2014 alongwith DD for amount of Rs.6,50,000/- as an earnest money, but thereafter as per the terms and conditions contained in brochure, the complainant has right to withdraw his application by submitting an application, but 10 days before the announced date of draw and 10% of earnest money will be deducted being withdrawal of application/cancellation charges and accordingly, the complainant filed an application on 06.06.2014, but the said application was not considered by the OP rather allotted the flat to the complainant without considering the application of the complainant for withdrawal of the application.
9. The plea of the complainant is controverted by the OP by taking a ground that the application for withdrawal of application for allotment was received by the OP after the announcement of the date of draw and as such, as per terms and conditions, the complainant is not entitled for withdrawal of allotment application and thus a date of draw was informed to the complainant and ultimately, a flat No.1012 Super HIG in the development scheme known as Surya Enclave, Jalandhar was allotted to the complainant with the condition that he has to deposit the remaining 1/4th sale money and to enter into the sale agreement within 30 days from the date of issuance of the allotment letter, but the complainant failed to deposit the said amount and even on the reminder, the complainant was asked to deposit the said amount alongwith 6% surcharge, but he again did not come and ultimately, the allotment of the complainant was cancelled and earnest money of Rs.6,50,000/-, deposited by the complainant was forfeited by the OP according to rules and now, the complaint of the complainant is become infructuous and further alleged that the instant complaint of the complainant is time barred and on this score, same is liable to be dismissed. The counsel for the OP also give strength to his argument by referring a judgment of Hon'ble Punjab & Haryana High Court, decided in CWP No.13278 of 2011, decided on 16.07.2012, titled as “Smt. Sushma Bakshi @ Susham Bakshi Vs. Haryana Urban Development Authority & another”. On the same point, the learned counsel for the OP also made reliance upon an other pronouncement of Hon'ble Apex Court, cited in 2009(2) RCR (Civil) 355, Supreme Court, titled as “Chaman Lal Singhal Vs. Haryana Urban Development Authority and Others”.
10. First of all, we considered the submission of learned counsel for the OP that the complaint of the complainant is time barred on the ground that the complainant deposited the amount alongwith application on 12.04.2014 and the request to refund the amount had been declined, vide letter No.1472 dated 11.07.2014 and thereafter, the complainant has been a defaulter and filed the instant complaint only on 16.08.2014 as such, the present complaint for refund is barred by time. We considered the submission of learned counsel for the OP and find no force therein because the complainant has submitted an application on 06.06.2014 for withdrawal of the application for allotment of flat, but no specific response has been given by the OP to that application and even thereafter, the complainant filed three other applications on 11.07.2014, 15.07.2014 and 07.09.2016 and the cause of action to the complainant accrued on each occasion whenever he filed a fresh application and as such, we find that the complaint of the complainant is not a time barred.
11. Further, we have gone through the judgments referred by learned counsel for the OP and find that the facts of the aforesaid judgment of the Hon'ble Punjab & Haryana High Court as well as Apex Court are not helpful to the OP, in the present case being a reason the facts of the aforesaid judgments are not identical to the facts of the case in hand.
12. Coming to the controversy involved in the present case. The factum in regard to submission of application for allotment of HIG Flat by the complainant and deposited of earnest money of Rs.6,50,000/- and further for filing an application on 06.06.2014 for withdrawal of allotment application, are admitted, there is no controversy upon these facts from the side of the OP. The question revolved around the issue in dispute is only whether the complainant filed an application for withdrawal of allotment application within a stipulated period as given in the brochure Ex.C-1, for that purpose, we have to go through the said Clause, which is under the heading of “Withdrawal”. We like to reproduce the language of this condition, which is as under:-
“If the applicant submits an application for withdrawal of his application before the draw of lots, 10% of earnest money will be deducted being withdrawal of application/cancellation charges, provided the said application is received the office of Jalandhar Improvement Trust ten days before the announced date of draw.”
13. If we see the case of the complainant in the spirit of above clause, then the date of filing an application for withdrawal of allotment is very much important, the complainant admittedly filed an application Ex.C-6 on 06.06.2014, the said application was presented by the complainant herself and delivered to the OP by getting a signature as well as stamp thereon i.e. 06.06.2014, when the stamp of the OP with date is appeared on the said application Ex.C-6, then the plea taken by the OP in written reply in Para No.3 of the preliminary objection at Page No.2 that the application of the complainant dated 06.06.2014 was received by the OP after pronouncement of the date of draw, but this plea taken by the OP is not trustworthy or true because when the application filed by the complainant itself shows that the said application was received on 06.06.2014, whereas the intimation for the date of drawl was given by the OP to the complainant, vide letter dated 11.07.2014 Ex.O-1 that the draw will be opened on 30.07.2014, so it means that the application of the complainant was received well within a time i.e. much prior to 10 days of the date of draw and as such, the complainant has filed his request for withdrawal of allotment application well within time as prescribed in the brochure Ex.C-1 and further the OP had miserably failed to decide the request of the complainant for withdrawal of application for allotment, however, the OP alleged that the said request was declined, vide letter dated 11.07.2014. For reference sake, we have gone through the said letter Ex.O-1 dated 11.07.2014 and find that there is nothing mentioned or declined in regard to letter of the complainant dated 06.06.2014 for withdrawal of application for allotment. So, it is clearly established that the application of the applicant, which was received within a stipulated period, had not been decided by the OP for the best known reason rather proceeded further, despite to decide the request of the complainant that he does not want to get the allotment of the flat, vide letter Ex.C-6, Ex.C-7, Ex.C-8 and Ex.C-12, if the complainant has submitted his request for withdrawal of application for allotment, well within time, then the further proceeding whatsoever, conducted by the OP is having no effect on the right of the complainant, because the OP has issued allotment letter Ex.O-2 dated 27.06.2016 and further directed to the complainant to deposit the 1/4th amount of the sale consideration and then again issued a letter dated 22.08.2016, Ex.O-3 by the OP, to the complainant to deposit the 1/4th amount along with 6% surcharge and ultimately, the OP itself cancelled the allotment and forfeited the earnest money deposited by the complainant, vide letter Ex.O-4 dated 25.10.2016 and Ex.O-5 dated 09.11.2016. The entire proceeding was conducted by the OP against the wishes of the complainant because if the complainant has informed/intimated to the OP well within stipulated time for withdrawal of his application for allotment i.e. on 06.06.2014, then no further proceeding in regard to allotment of letter to the complainant had to initiate by the OPs. So, with these observations, we find that the OP has illegally and arbitrarily withheld the earnest money of the complainant without any reason or rhyme, which should have to refund to the complainant after 06.06.2014, deducting there from 10% as per terms and conditions, but when the OP itself are at fault by not refunding the amount well within time, then we are of the considered opinion that the OP, at this stage has no right to deduct 10% from the earnest money rather the OPs are liable to pay interest thereon as well as compensation and litigation expenses and accordingly, we conclude that the complainant is entitled for the relief as claimed.
14. As an upshot of our above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to refund the earnest money of Rs.6,50,000/- to the complainant with interest @ 12% per annum from 06.06.2014, till realization and further OPs are directed to pay compensation of Rs.50,000/- to the complainant for harassment and mental agony and further OPs directed to pay litigation expenses of Rs.10,000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
02.05.2018 Member President
