BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR.

Complaint No.84 of 2017 Date of Instt. 29.03.2017 Date of Decision: 02.03.2021

Paramjit Kaur aged about 65 years W/o Lae S. Manjeet Singh, H. No.63-E, Partap Nagar, Near 24 No.Phatak, Patiala-147001.

….. Complainant

Versus

1. Jalandhar Improvement Trust, Jalandhar (Residential plot in Surya Enclave Extension) through its Executive Officer.

2. Executive Officer, Jalandahr Improvement Trust, Jalandhar.

..…Opposite parties

Complaint under the Provisions of Consumer Protection Act.

QUORUM:

SH.KULJIT SINGH, PRESIDENT

MRS.JYOTSNA, MEMBER

ARGUED BY:

For Complainant : Sh. A. K. Gandhi, Advocate

For OP : Sh. Manoj Dhamija, Advocate

ORDER:-

KULJIT SINGH, PRESIDENT

1. The present complaint has been filed by complainant Paramjit Kaur against the OP on the averments that the OPs floated a scheme (Development Scheme 94.97 Acre) for the allotment of residential plots in Surya Enclave Extension, Jalandhar Improvement Trust, Jalandhar. The OPs circulated the advertisement through various channels for allotment of freehold residential plots in Surya Enclave Extension, Jalandhar Improvement Trust, Jalandhar. The said scheme was commenced from 08.08.2011. The OP also appointed various banks including Punjab National Bank as its agents to sell and collect the applications forms on behalf of the OPs. That the complainant after reading the advertisement make up her mind for purchasing the residential plot in the said scheme namely Surya Enclave Extension, Jalandhar floated by OPs. The complainant purchased the application form no.075142 from the Punjab National Bank, Branch The Mall, Patiala and applied for the plot No.500 square yards under the Pension Category. The price of the said plot was Rs.17,000/- per square yards. The complainant paid Rs.8,50,000/- i.e. 10% earnest money as required for making the application after financing the same from Punjab National Bank, Patiala and paid the amount of Rs.46,725/- being the interest. That thereafter the draw was conducted by the OPs and the applicant was the successful allottee and was allotted plot No.28-C under the said scheme. The OPs send a allotment letter No.4661 dated 02.04.2012 to the complainant regarding allotment of residential Plot No.28-C measuring 500 Sq. Yards, which also contained the description of the terms and conditions under which the said plot has been allotted and the same are as under:-

(a) OPs asked the complainant to deposit the entire price of the plot of Rs.85,00,000/- within 30 days from the date of issuing allotment letter after deducting earnest money of Rs.8,50,000/- and further adding 4% cess as per the Government Instructions and Rs.950/- as site plan charges or if the allottee wants to deposit the payment in installment then 1/4^th amount of the plot + cess charges + site plan charges + agreement fees has to be deposited within 30 days which comes to Rs.16,15,950/- and remaining 75% of the plot amount to be paid in 5 installments alongwith interest.

(b) if allottee fails to deposit the installment in time then OPs would receive interest @ 11% in case there is delay of one month, 12% interest in case delay of two month, 13% interest in case delay of three month, 14% interest in case of delay of four month, 15% interest in case delay of five month and 16% interest in case delay of six month and compounded interest will be received.

(c) In case allottee fails to pay the installment within six month from the date fixed for installment then it will be deemed that plot of allottee has been forfeited and the same will be restored within three months only if penal interest, 20% restoration charges and 6% penalty is paid;

(d) If allottee fails to deposit the 1/4^th amount within thirty days then plot allotted will be cancelled and earnest money already deposited will be deemed to have been forfeited.

(e) It is also mentioned that development facilities will be completed within 2 ½ years and possession of the plot by the allottee can be taken from OPs after the entrance of agreement of sale. The agreement of sale will be got executed within 30 days from the date of allotment letter;

(f) The allottee has to complete the construction over the plot allotted within 3 years from the date of allotment after getting the site plan sanctioned and in case construction is not completed within stipulated period then period can be extended after paying non construction fees at the rate fixed by the government time to time and if allottee failed to complete the construction within extended period then OPs will have full right to forfeit the deposited amount and also allotted plot.

(g) That it was incumbent upon the OPs to complete the entire development work within 2 ½ years i.e. by the time the installments are due to be recovered from the complainant.

2. That after allotment the complainant came to know that the OPs was not in possession over the property at the time of floating the scheme due to litigation as 6 petitioners namely Arjan Singh S/o Mangal Singh, Jagdish Singh S/o Gurbachan Singh, Devinder Kumar S/o Khushpal Chand, Kewal Singh S/o Ganga Singh, Amrik Singh S/o Dalip Singh and Bhajan Singh S/o Meja Singh, all residents of Jalandhar and the original owners of the land acquired had filed a Civil Writ Petition No.3559/2011 on 23.02.2011 against the State of Punjab, as well as Jalandhar Improvement Trust and Collector Land Acquisition, Jalandhar, whereby they had sought quashing of Notification u/s 36 of the Punjab Town Improvement Trust Act, 1922 published in the Tribune dated 07.06.2010 vide which development scheme over land adjoining Surya Enclave has been framed u/s 24(1), 25, 28(2) (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix) (x) (xi) and (xii) of the 1922 Act for an area measuring 94.97 acres. In above CWP and vide interim order dated 08.03.2011, the Hon’ble High Court of Punjab and Haryana had ordered maintenance of the “status quo regarding possession”. Subsequently vide order dated 26.09.2012, alongwith CWP No.3559/2011, a bunch of other similar Civil Writ Petitions, namely CWP No.8618, 8619, 4114, 10785, 8534, 11234 and 16324 of 2011 were also admitted for regular hearing with further direction that “dispossession shall remain stayed”. That after come into the said fact, the complainant alongwith her son approached the OP and asked about the litigation and the OP confirmed about the litigation and told that the development work shall be started only after the decision of the Hon’ble Punjab & Haryana High Court and assured the complainant that the matter shall be sort out soon as they are going to compromise the matter and asked the complainant to wait for six months. In the month of December 2013, the complainant visited the office of OP as well as on the site, but there was no sign of development. The complainant requested the OP to refund the earnest money but the OPs put off the matter on one pretext to another by saying that wait for the decision of the Hon’ble High Court. The complainant deposited the amount of Rs.8,50,000/- with interest to the Punjab National Bank Patiala. The Hon’ble High Court had stayed dispossession of a big portion of the land acquired by the Improvement Trust, Jalandhar on around 08.03.2011, but despite that the OP Improvement Trust, Jalandhar went ahead with opening of booking on 08.08.2011, while the aforesaid interim order was in operation. No indication was given to general public by the Improvement Trust in brochure, regarding the pending litigation with the original owners of the land acquired by it for the development scheme floated through brochure, thereby misleading the prospective purchasers of residential plots to invest their land earned money in that scheme. That before floating the scheme it was the duty of the OPs to verify the fact that there was no encumbrance on the land acquired by the OPs for the scheme and before proceeding to collect money from the consumers for allotment of residential plots to them, the OPs have exhibited gross negligence in the performance of their part of duties and have, therefore exhibited gross “deficiency in service” and unfair trade practice. The complainant approached the OPs for refunding the amount, but the OPs flatly refused to refund the amount alongwith interest. The complainant also sent legal notice dated 23.11.2015, but all in vain 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 the amount of Rs.8,50,000/- deposited by the complainant with OPs alongwith interest @ 16% per annum from the date of deposits till its realization and further OPs be directed to pay Rs.5,00,000/- as compensation on account of unfair trade practice and deficiency in service and further OPs be directed to pay Rs.55,000/- as litigation expenses.

3. Upon notice, OP appeared and filed its written reply and contested the complaint of the complainant by raising preliminary objections that the complaint is not maintainable in the present form nor under the law, rather the complaint is infructuous. That the complaint is flase and frivolous to the knowledge of the answering defendant. The complainant is trying to harass the answering defendant by filing present complaint. That the complainant has no cause of action to file the present complaint and the complainant is barred by his own act, conduct, omissions and commission to file the present complaint. The complaint is without cause of action is barred by law. That the complainant has not come to the Court with clean hands. The allotment was made for Plot No.28-C vide allotment letter 4661 dated 02.04.2012. the complainant was to deposit 1/4^th of the amount within 30 days of receiving of the allotment. The complainant herself failed to deposit the amount within said time period. As such, as per clause No.6 of the allotment letter which states that the allotment shall be cancelled and the amount deposited would be forfeited, in case of failure to deposit the said amount. The complainant herself defaulted, resulting into cancellation of the allotment and forfeiture of amount, in accordance to law. On merits, it is admitted that the flat in question has been allotted to the complainant and complainant has also deposited the entire price of the flat, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. In order to prove his case, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-15 and closed the evidence.

5. In order to rebut the evidence of the complainant, the counsel for the OPs tendered into evidence affidavit Ex.OPW1/A and document Ex.OP-1 and then closed the evidence of the OP.

6. We have heard the learned counsel for the respective parties and have also gone through the record very carefully.

7. Precisely, the case of the complainant is only that the complainant make up her mind for purchasing the residential plot in the said scheme namely Surya Enclave Extension, Jalandhar floated by OPs and the complainant purchased the application form No.075142 from the Punjab National Bank and applied for the plot 500 Square Yards under the “Pension Category”. The price of the said plot is Rs.17000/- per sq. yds. The complainant paid Rs.8,50,000/- i.e. 10% earnest money and paid Rs.42,725/- being the interest, which is evident from Ex.C-1 & Ex.C-2. Plot No.28-C allotted to the complainant, copy of the allotment letter No.4661 dated 02.04.2012 as Ex.C-3. After allotment the complainant came to know that the OPs was not in possession over the property as at the time of floating the scheme due to litigation as 6 petitioners had filed a Civil Writ Petition No.3559/2011 on 23.02.2011 against JIT before Hon’ble Punjab & Haryana High Court and the Hon’ble Punjab & Haryana High Court had ordered maintenance of the status quo regarding possession, copy of the order is Ex.C-4 to Ex.C-7 and thereafter complainant approached the OP/JIT and asked about the litigation and OP told her that the decision of Hon’ble Punjab & Haryana High Court the work will start and then in the month of December 2013 the complainant visited the office of the OP as well as on the site but there was no sign of development, then complainant requested the OP to refund the earnest money but the OP failed to do so and as such, the present complaint filed.

8. To prove his case, the complainant brought on the file affidavit of the complainant Ex.CA, Ex.C-1 Copy of Brochure, Ex.C-2 Deposit Receipt, Ex.C-3 Allotment Letter dated 02.04.2012, Ex.C-4 Copy of Order in CWP No.3559 of 2011, Ex.C-5 Copy of Order dated 26.09.2012, Ex.C-6 Order dated 26.11.2013, Ex.C-7 Order dated 19.09.2013, Ex.C-8 Order dated 30.07.2014, Ex.C-9 Order dated 04.09.2015 of NCDRF, Ex.C-10 Legal Notice, Ex.C-11 & Ex.C-12 Postal Receipt, Ex.C-13 Order dated 30.06.2016, Ex.C-14 Order dated 04.12.2015, Ex.C-15 Receipt No.075142.

9. On the other hand, the OP simply taken a plea in the written statement that the complainant was to deposit 1/4^th of the amount within 30 days of receiving of the allotment. The complainant herself failed to deposit the amount within said time period. The complainant herself defaulted, resulting into cancellation of the allotment and forfeiture of amount, in accordance to law. To prove his case the OP brought on the file one affidavit of Rajesh Chaudhary, E. O. of JIT as Ex.OPW1/A and one letter Ex.OP-1.

10. Now, coming to the case of the complainant, who alleged that she deposited an earnest money of Rs.8,50,000/- alongwith interest of Rs.46,725/- and its receipt is available on the file Ex.C-2 and the remaining 75% amount will be deposited by way of five installments, first installment on 01.10.2012, second on 01.04.2013, third on 01.10.2013, forth on 01.04.2014, fifth on 01.10.2014.

11. After considering the overall facts, it is established on the file that the OPs are negligent and deficient in providing the service as the OPs failed to construct the plot as well as to refund the price Rs.8,50,000/- i.e. 10% earnest money and as such, we came to conclusion that the complainant is entitled for the refund.

12. Keeping in view the totality of the facts and circumstances of the case, the present complaint is partly allowed to refund Rs.8,50,000/- which has deposited by complainant with interest @ 6% interest from the date of deposit till its realization. The complainant is also entitled Rs.10,000/- as compensation for mental harassment and Rs.5000/- as costs of litigation.

13. The compliance of the order be made within one month from receipt of copy of this order. Copies of the order be sent to the parties, as permissible, under the rules.

14. File be indexed and consigned to the record room after due compliance.

Announced in open Commission

2^nd of March 2021

Kuljit Singh

(President)

Jyotsna

(Member)