| Final Order / Judgement | BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR. Complaint No.139 of 03.05.2019 Date of Decision: 09.03.2021 Davinder Singh aged 40 S/o Jaswant Singh R/o VPO Mandi Kalan, Tehsil Phool, District Bathinda. ..........Complainant Versus Jalandhar Improvement Trust, Jalandhar through its Chairman.
2. Punjab Gramin Bank, having its Head Office at Jullundhar Road, Kapurthala and carrying on its business of banking and having branches at different places including Kharar, Tehsil Kharar, District Mohali through its Senior Manager Sh.Kuldeep Singh. ….….. Opposite Parties Complaint Under the Consumer Protection Act. Before: Sh. Kuljit Singh (President) Smt. Jyotsna (Member) COUNSEL FOR THE PARTIES: For Complainant : Sh.V.B. Mehta, Advocate For OP No.1 : Sh.Sachin Sharda, Advocate For OP-2 : Sh. Subodh Sharma, Advocate Order Kuljit Singh (President) The instant complaint has been filed by the complainant, wherein he alleged that he came in contact with one advocate named Baljinder Singh Dhaliwal, Chamber No.126, District Courts, Barnala, who represented him that the Jalandhar Improvement Trust, Jalandhar (hereinafter referred as JIT) has issued advertisement for the allotment of plot in Jalandhar. He also told that same be applied through bank and amount is to be paid after the allotment of plot. Complainant fell into the trap of said advocate and he obtained the signatures of complainant on number of documents. The complainant never visited OP-2 nor was aware of any legal technicalities of the bank. Complainant was not made aware of any allotment nor any correspondence was either received by him from Ops. Neither OP-1 made any efforts to contact the complainant nor OP-2 ever contacted the complainant. In February 2017, the complainant received summons from the Court of JMIC, Barnala to appear and in pursuance of the said summons, the complainant appeared and was surprised to know that both the OPs have indulged in unfair trade practice and have caused a heavy loss to the complainant. Complainant was not made aware of any allotment letter. Neither, the plot was given to complainant, rather the same was cancelled without giving any opportunity. The complainant approached the OP-1 to supply the copies of documents and filed a written application under RTI but the OPs has not supplied any document to complainant. Lastly, prayer has been made that the Ops be directed to issue allotment letter or to refund the amount of Rs.9,73,942/- received from the complainant. Complainant also claimed compensation for mental and physical loss. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the complaint is not maintainable; complainant has not come to the Commission with clean hands. Complainant has made application No.89317 for allotment of plot under plot reserved for handicapped person without documents to prove that complainant is handicapped person. Further plot No.8-D scheme 94.97 acre (Surya Enclave Extension) was given to complainant vide draw dated 04.11.2011 and complainant was called forward to submit his particular of being handicapped person for the purpose of issuance of allotment letter and a letter No. JIT/2588 dated 23.12.2011 was issued to complainant to submit his particulars within 7 days for getting the benefit as a handicapped person under the said scheme. Despite the issuance of said letter complainant failed to come present and furnish any document till today to prove that he is a handicapped person, as such no allotment letter was issued to the complainant due to his own fault of furnishing particular; this commission having no jurisdiction; complaint is bad for non-joinder and mis-joinder of necessary parties; claim of complainant is bared by limitation. On merits, it is submitted that answering OP after the date of draw 04.11.2011 duly issued letter No.JIT/2588 dated 23.12.2011 on the address given in the application form of complainant bearing No.89317 to furnish particulars to get the benefit of reserved category (physically handicapped) but complainant has failed to give requisite particulars for getting said benefit as such allotment letter could not be issued to complainant. Other averments as made in the present complaint are empathically denied and prayed for dismissal of complaint with costs. OP No.2 has appeared and filed separate written reply, whereby contested the complaint by taking preliminary objections that complaint would prima facie show that there is no lapse or deficiency in service on the part of answering OP. There is no single allegation against answering OP; the only role played by answering OP is that term loan was advanced to complainant to the tune of Rs.6,05,200/- for applying for plot to be allotted by JIT; answering OP has also filed a recovery suit in Civil Court, Kharar against complainant and OP-1 for recovery of loan amount financed to complainant alongwith pendentelite and future interest, which has been decreed against the complainant only and in favour of answering OP vide judgment and decree dated 21.05.2019; the said suit/case had been duly contested by complainant being defendant No.1 in the said suit. The relevant portion of said judgment and decree, as drawn from official website is that: “…. 10, The onus to prove issue No.(i) was on the plaintiff Bank and in view of my findings to issues No.(ii) to (iv), plaintiff has succeeded in providing this issue in his favour. Hence, this issue is decided in favour of plaintiff Bank. Therefore, suit of the plaintiff Bank is decreed against the defendant No.1 only for the recovery of Rs.9,73,942/- with costs of the suit, along with interest at contractual rate from the date of institution of suit till the date of actual realization of the decretal amount,……..”. No cause of action has accrued in favour of complainant against answering OP. On merits, complainant himself executed all the loan documents for the purpose of availing loan for depositing the earnest money for applying for the plot. The finding given by Trial Court Barnala in complaint filed U/s 138 of Negotiable Instruments Act, 1881 against the complainant by answering OP wherein Trial Court, vide its judgment dated 26.11.2018 has held that “The complainant himself has executed the loan documents and secured the loan from the Bank.”The answering OP had time and again requested the complainant to regularize his account and also served notices as well as legal notice to repay the outstanding loan amount. Complainant also acknowledged the debt, alongwith interest accrued as on 31.03.2014 by signing balance confirmation letter dated 18.07.2014. It is submitted that it was duty of OP-1 i.e. Jalandhar Improvement Trust to provide allotment letter to complainant and to hand over the possession of the plot to complainant. The plot allotted to complainant is with OP-1 and earnest money financed by bank is also with OP-1. Complainant suffered a loss of Rs.9,75,942/-, rather the answering OP is the only one who has suffered loss in the entire process as the answering OP neither received refund of loan amount from OP-1 nor the complainant repaid the outstanding loan amount. Other averments of complaint denied and prayed for dismissal of complaint with costs. In order to prove the case of the complainant, the complainant tiled his affidavitEx.CA alongwith documents Ex.C-1 to Ex.C-2. Learned counsel for OP-1 has filed photocopies of documents Ex.OP1/A to Ex.OP1/D. Similarly, OP No.2 has filed some documents Ex.OP2/1. We have heard the argument from learned counsel for the respective parties and also gone through the case file very carefully. During arguments the contentions of parties are similar to the pleadings, so no need to reiterate the same. First of all, we refer to discuss the legal point raised by the OP that in view of the provision of Real Estate Regulation and Development Act 2016, the instant complaint does not lie with this Commission because the complainant has a right to file an application before the Adjudicating Officer in view of the above Real Estate Regulation and Development Act, 2016. We have considered the aforesaid submission and find that Consumer Protection Act gives additional remedy to the consumer to file a consumer complaint and it is a liberty with the consumer is either to file consumer complaint or to file an application before the Adjudicating Officer appointed under Real Estate Regulation and Development Act, 2016. So, accordingly, we do not find any force in the submission of learned counsel for the OPs. After taking into consideration the respective submission of both the counsel for the parties, we find that the dispute between the parties is only whether the possession of the flat in question is delayed/not given for negligence of the OPs or not. The other facts in regard to allotment of the Plot No.8-D (Surya Enclave Extension) is admittedly allotted to the complainant, vide allotment letter Ex.OP1/C dated 23.12.2011. The complainant alleged that he has not given any allotment letter and other documents or handed over the possession to the allottee/complainant till today. Rather the plea of the OPs is only that a letter bearing No.JIT/2588 dated 23.12.2011 sent to the complainant for submission of requisite documents for taking possession of the flat, but the complainant himself did not turn up to take the possession and submit said documents and as such, the complainant himself defaulted by not coming forward to take the possession of the flat as per terms and conditions of the allotment letter. No doubt, the OPs has not produced any delivery of said letter to complainant in its evidence. In this case, the parties have admitted the making of payment qua said plot. It is pertinent to make clear here that the complainant has already deposited the entire price money of the said flat, if so, then the complainant is legally entitled to get the possession of the flat and live therein to enjoy the feeling of his own home, but from that facility, the complainant was deprived by the OP for long time. Even during the pendency of this complaint, the OP has not brought on the file any cogent and convincing evidence, whereby the Ops has delivered the said letter to complainant to submit requisite documents. Moreover, it is the duty of OP-1 to complete all record before opening of draw of plots. So, in the absence of this type of evidence from the side of the OP, itself shows that the flat in question are still not delivered, which is clear cut deficiency and negligence on the part of the OP-1 and as such, we are of the opinion that after waiting a long time, the complainant became frustrated and demanded the return of the money along with interest, compensation and litigation expenses. We find there are much substances in the argument of learned counsel for the complainant, therefore, the complaint of the complainant is partly accepted and OP-1 is directed to refund the amount of Rs.6,05,200/- along with interest @ 6% per annum from the date of deposit i.e. 07.09.2011, till realization and further OP-1 is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.30,000/- and further directed to pay litigation expenses of Rs.5000/-. The OP-1 has no right to keep and misappropriate the public money. It must go back to the public. We, therefore, order that the OP-1 will deposit a sum of Rs.5000/, the estimate rough amount, with the legal aid account of this Commission. The entire compliance be made within 45 days from the date of receipt of the copy of order.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after its due compliance. ANNOUNCED IN THE OPEN COMMISSION: 9th Day of March 2021
(Kuljit Singh) President
(Jyotsna) Member | |
