BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.405 of 2014

Date of Instt. 18.11.2014

Date of Decision :10.06.2015

Babu Ram Prasad aged about 61 years son of Gopi Parshad R/o Village Shekhu Pur, Tehsil Rajpura, Post Office Chapper, District Patiala.

..........Complainant Versus

1. The Jalandhar Improvement Trust, Jalandhar through its Chairman/Administrator.

2. Punjab Gramin Bank through its Branch Manager, Branch at Kharar Tehsil Kharar District Mohali.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Sh.Parminder Sharma (Member)

Present: Sh.RK Arora Adv., counsel for complainant.

Sh.Manoj Dhamija Adv., counsel for OP No.1.

Sh.Subash K.Vaishnas, Manager of OP No.2.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant is permanent resident of above said address. In the month of September 2011, Jalandhar Improvement Trust, Jalandhar launched its 94.97 Acre development scheme adjacent to an earlier developed colony known as Surya Enclave, situated at Amritsar-Pathankot Bye-Pass, Jalandhar and now its new development scheme was named as Surya Enclave Extension, Jalandhar. The complainant got attracted towards development scheme of opposite party No.1 and since the various nationalized banks were also promoting this development scheme of the Government of Punjab, therefore, the complainant preferred to apply for allotment of plot after availing the services of the opposite party No.2. Consequently, the complainant became consumer of the opposite parties No.1 and 2 as the plot No.18-C measuring 500 Sq.yards at a price of 17000/- per sq.yards totaling Rs.85,00,000/- under 94.97 acre development scheme of opposite party No.1 was alloted to the complainant on his application for allotment of plot under pensioner category alongwith payment of application money amounting to Rs.8,50,000/- which the complainant got financed through opposite party No.2. As as matter of fact, the complainant had applied with opposite party No.1 for allotment of aforesaid plot in September 2011 through opposite party No.2. The opposite party No.2 financed the application money on 6.9.2011 and the application of the complainant for allotment of plot with application money of Rs.8,50,000/- was received by the opposite party No.1 on 7.9.2011 under application No.089329. The acknowledgment receipt of the application No.89329 was issued by the opposite party No.2 on 7.9.2011. The opposite party No.1 took a long time to issue allotment letter and on the other hand, the complainant was made liable to pay the interest on amount of Rs.8,50,000/- financed from the opposite party No.2. The allotment letter No.4658 dated 2.4.2012 by opposite party No.1 in the name of the complainant for the plot No.18-C under development scheme of Surya Enclave Extension, Jalandhar was not issued and delivered upon the complainant in reasonable time. In the meantime, on visiting Jalandhar for making enquiry in the office of opposite party No.1, the complainant got a chance to visit at the site to inspect the development of land in 94.97 Acre development scheme of opposite party No.1 and the complainant was stunned to notice that there was no plotting at all rather the land in question was still under possession of farmers. And further it also transpired from those farmers that the possession of land was still with them and during the period of launching the aforesaid scheme by opposite party No.1, they obtained stay orders from the Hon'ble High Court against the opposite party No.1 of their forcible dispossession by the opposite party No.1. Copies of stay orders passed by Hon'ble High Court, made available to the complainant by those farmers are attached. Meaning thereby, the opposite party No.1 launched its development scheme even without getting the possession of land by falsely alluring the public at large to apply for plots in the said scheme and further even, there was no plotting at site and plot numbers were allotted to the applicants in papers. Consequently, the complainant got disappointed and after waiting for some more time for the results of the hearing in Hon'ble High Court, the complainant preferred not to wait for any further period and applied for refund of application money as on the other hand, bank branch i.e opposite party No.2 had started persisting hard for making the payment of loan amount of Rs.8,50,000/-. The opposite party No.1 duly acknowledge the receipt of application for refund of application money vide dairy No.7092 dated 8.3.2013. The complainant kept on awaiting for refund of his application money and after about 9 months of moving his application for refund of application money, the complainant suffered a great shock upon receiving a letter from opposite party No.1 bearing No.2998 dated 5.12.2013, whereby the complainant was informed about the cancellation of allotment of plot No.18-C alongwith forfeiture of application money of Rs.8,50,000/- by the opposite party No.1. Uptill now, the opposite party No.1 has not got possession of land acquired by it on account of stay of dispossession granted by the Hon'ble High Court in favour of farmers/occupants. On such like averments, the complainant has prayed for directing the opposite party No.1 to refund the application money of Rs.8,50,000/- to opposite party No.2 alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed their written replies. In its written reply, the contesting opposite party No.1, inter-alia, pleaded that the application was made by the complainant on 7.9.2011. The draw was made on 4.11.2011. Resolution of trust mentioning name of complainant was passed on 8.11.2011, which was sent to Government. The Government accepted the allotments vide memo dated 7.12.2011. After receiving it back, the complainant was asked to submit the original documents vide letter dated 23.12.2011, within period of 7 days. But the complainant delayed the submission of said original documents with attested copies. The complainant submitted his documents after two long months and submitted them in February 2012. Then after verification by the department, the trust sent allotment letter dated 2.4.2012 to the complainant. So there is no delay on the part of trust. The clauses of the allotment letter are ample clear that the installment of Rs.15,93,750/- was to be made in October 2012. After no payment was made till October 12, in accordance to clause 6 of allotment letter, the allotment was deemed to be canceled and the amount forfeited, without any notice or writing. The complainant even did not fulfill the clause 5 of the allotment letter, which stated to furnish stamp paper within 30 days of the receiving of allotment letter i.e first week of May 2012, he did not even pay amount of Rs.16,15,950 by 1.5.2012 i.e 1/4th of the amount with cess and miscellaneous charges, as per clause 6 and last clause of the allotment letter. Whereas, the stay order produced by the complainant is of 26.9.2012. From perusal of letter dated 5.12.2013, it is ample clear that the resolution of cancellation of allotment and forfeiture of amount was already passed by the trust on 22.2.2013. Whereas, the letter was sent by the complainant on 8.3.2013. the complainant had filed this false complaint, to harass the opposite party No.1. The complainant had concocted a false story and is not entitled to any relief. The complainant himself defaulted as he did not pay even a dime after the date of application resulting into cancellation of the allotment and forfeiture of amount, in accordance to law. It denied other material averments of the complainant.

3. In its separate written reply, opposite party No.2, inter-alia, pleaded that in the entire case the only role played by the opposite party No.2 is that the term loan was financed to complainant to the tune of Rs.8,50,000/- for applying the plot to be allotted by Jalandhar Improvement Trust. No cause of action has accrued in favour of the complainant against the opposite party No.2. There is no deficiency in service on the part of opposite party No.2, hence the complaint deserves to be dismissed qua the answering opposite party. It denied other material averments of the complainant for want of knowledge. However, it pleaded that it has opted for legal remedy for recovery of the loan amount.

4. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavits Ex.CA and Ex.CA1 alongwith copies of documents Ex.C1 to Ex.C15 and closed evidence.

5. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.OP1 and closed evidence. Further Manager of opposite party No.2 has tendered affidavit Ex.OP2/A and closed evidence.

6. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted on behalf of complainant.

7. The real dispute is between the complainant and the opposite party No.1. According to the complainant, the allotment letter dated 2.4.2012 was not issued to him within reasonable time. Further according to the complainant, he is resident of District Patiala and on visiting Jalandhar for making inquiry in the office of opposite party No.1, he got a chance to visit at the site to inspect the development of land of the scheme area and he was stunned to notice that there was no plotting at all and land in question was in possession of farmers and further transpired from those farmers that the possession of land was still with them and they have obtained stay orders from the Hon'ble High Court against the opposite party No.1. Further according to the complainant, the trust has launched the scheme in question without getting the possession and as such the complainant has rightly applied for refund of his application money vide application Ex.C6 received by opposite party No.1 on 8.3.2013. Further according to the complainant in similar complaint this Forum has directed to refund of the money to the allottee. Further according to the complainant from the documents Ex.C3, Ex.C8 to Ex.C14, it is clear that litigation is pending since 2011 i.e when the scheme was floated by the opposite party No.1. Alongwith written arguments, the complainant has filed copy of order of this Forum in another complaint titled as Mann Singh Vs. JIT decided on 9.9.2014. On the other hand, it has been contended by learned counsel for the opposite party No.1 that complainant did not deposit the earnest money within stipulated period and as such as per clause No.6 of the allotment letter, the same has been forfeited. We have carefully considered the contentions advanced by learned counsels for both the parties. The order attached by the complainant with the written arguments passed by this Forum in some other complaint is on different facts. As from the perusal of the said order it is evident that in that case the version of the trust was that as regard to concerned plot Hon'ble Punjab & Haryana High Court passed stay order and opposite party is very much trying for vacation of the said order and it will be probably vacated very soon. Moreover, in the said complaint, the allottee deposited the 1/4th price within the stipulated period. In the present case, the complainant has not deposited 1/4th price of the plot allotted to him. He has only deposited earnest money and after allotment of the plot, he did not deposit any other amount. So the facts involved in the said complaint were different. Moreover, the complainant could not cite the order of District Forum and can only rely upon the orders passed by Hon'ble State Commission or Hon'ble National Commission. Ex.C5 is allotment letter dated 2.4.2012. Clause 6 of this allotment letter specifically provides that if the conditions are not fulfilled within 30 days of the issuance of the allotment letter regarding the subject plot and 1/4 th amount is not deposited within the said period then the trust shall have full right to cancel the allotment without any letter and amount i.e earnest money deposited by the allottee shall deem to have been forfeited. In the complaint, the complainant has not mentioned when he received the allotment letter. On the other hand, he has pleaded that the opposite party No.1 took a long time to issue a allotment letter and further it was not issued and delivered to him within reasonable time. So complainant has not mentioned the date of receiving of allotment letter by him. The version of the complainant is that he did not deposit the remaining amount as he came to know that there was no plotting at all when he visited the site and further land in question was still under possession of the farmers and it also transpired from them that they have obtained stay order from Hon'ble High Court against opposite party No.1 regarding forcible dispossession by opposite party No.1. This version of the complainant appears to be an afterthought one. The complainant has himself produced letter dated 8.3.2013 written by him to the opposite party No.1 regarding refund of application money wherein it is mentioned that he i.e complainant was allotted the above mentioned plot in Surya Enclave Extension and he could not deposit the allotment money since letter was not received as on date and now he was no more interested in availing the plot. In this letter, the complainant has no where mentioned that he was not interested to get the plot as there was no development at the site or the possession of the plot in question was not with the trust. As per condition No.7 of the allotment letter Ex.C5, the development of scheme area was to be completed within 2-1/2 years. It is not a case of the complainant that he visited the site after 2-1/2 years of the issuance of the allotment letter. No doubt the complainant has placed on record copy of order dated 26.9.2012 Ex.C3 passed by Hon'ble High Court in writ petition whereby the dispossession of the writ petitioners have been stayed. The complainant has also produced copy of jamabandi Ex.C4 regarding 39 kanal 07 marlas of land. According to the own pleading of the complainant that the opposite party No.1 launched the scheme in 94.97 acres. So from the above said jamabandi it is not clear if the Hon'ble High Court has passed the stay order regarding the entire land of the scheme or in respect of the some part of it. From the perusal of copies of other orders produced by the complainant which are of subsequent date it is not clear if the stay order has been passed by Hon'ble High Court in respect of the entire scheme or part thereof. Order dated 26.9.2012 Ex.C3 was clarified by Hon'ble High Court by passing order dated 26.9.2013 Ex.C9 wherein it is mentioned that order dated 26.9.2012 is clarified to the extent that dispossession of the petitioners shall remain stayed. So it means that order dated 26.9.2012 was only regarding the land of the writ petitioners. Moreover, order dated 26.9.2012 is of subsequent date i.e after the date of allotment letter Ex.C5 which is dated 2.4.2012. In Harmeet Kaur Sethi Vs Jalandhar Improvement Trust, First Appeal No.437 of 2013 decided on 5.3.2015 by Hon'ble State Commission, in some what similar circumstances, it has been held as under:-

"After going through the allegations in the complaint, written reply filed by the opposite parties, evidence brought on record, District Forum observed that only earnest money was deposited and 1/4th amount was not deposited within 30 days from the date of allotment. As per terms and conditions of the allotment letter, in case 1/4th amount of the total price was not deposited then earnest money was liable to be forfeited as per condition no.6 and it was rightly forfeited. In view of this condition, the complaint filed by the complainant was dismissed.

In the ground of appeal, it has been submitted that the District Forum has miserably failed to appreciate the evidence on record, that the land in question was under litigation, thus, there was no purpose to deposit the amount as alleged in the allotment letter. In fact it amounts to unfair trade practice on the part of the opposite party who were not in possession of the land for which the scheme was notified. Therefore, the impugned order is liable to be set-aside and consequently, the appeal be accepted.

We have heard the arguments of the counsel for the opposite party and on the date of hearing counsel for the complainant was not present. In our opinion when any scheme is launched, main features of the scheme are given and in case the complainant needed any inquiry then it can be raised before applying for a plot under the said scheme. A reference has been given to litigation in the Hon'ble High Court. No doubt some litigation must have been filed in the Hon'ble High Court but it must been seen whether the entire property under this scheme was the subject matter of the litigation filed before the Hon'ble High Court under which the dispossession of the original owners was stayed. No copy of the writ petition or court proceedings was filed on record. When one the scheme was launched and allotment letter was issued in favour of the complainant then the parties are to be governed under the said allotment letter. As per condition contained in the allotment letter, the complainant was required to deposit 25% of the total sale consideration within 30 days from the date of allotment, failing which the earned money deposited will be forfeited. However, the complainant failed to deposit 25% of the sale consideration of the plot within 30 days from the date of allotment. She has taken a plea that there was no development at the site. The development would be possible only in case the plot owners, to whom the plots were allotted continues to deposit the payment as per the schedule. There is a condition in the allotment letter that in case the 25% amount of consideration as referred in the allotment letter is not deposited, then earnest money is liable to be forfeited as per terms and conditions of the allotment letter.

From the perusal of the record we find that the complainant herself had failed to deposit 25% of the sale consideration, as per the terms and conditions of the allotment letter, therefore, the earnest money was rightly forfeited by the opposite parties. In view of above observations, the appeal is hereby dismissed as there is no merit in it. The order of the District Forum is well reasoned order and same is upheld".

8. The ratio of this authority is fully applicable on the facts of the present case. Since complainant himself failed to deposit 1/4th price of the plot allotted to him within 30 days of receipt of allotment letter, as such as per condition No.6 of the allotment letter the earnest money was liable to be forfeited. The parties are bound by the terms and conditions of the allotment letter.

9. In view of above discussion, we hold that there is not merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jaspal Singh Bhatia

10.06.2015 Member President