Punjab

Ludhiana

CC/15/136

Neelam Kumari - Complainant(s)

Versus

Ludhiana Improvement Trust - Opp.Party(s)

S.S.Heer Adv.

18 Nov 2015

ORDER

Before the District Consumer Disputes Redressal Forum, Ludhiana.

                                                                                          CC No. 136/9.3.2015

                                                                                         Decided on: 18.11.2015

 

Neelam Kumari w/o Sh. Prem Chand, aged about 60 years r/o Village & P.O. Malewal, Garhshankar, District Hoshiarpur at present residing at House No. 51, Ranchi Colony, Threekay, Ludhiana.

                                                                                                         … Complainant

                                    Versus

1. The Ludhiana Improvement Trust, Ludhiana through its Chairman.
2. The Chairman, The Ludhiana Improvement Trust, Ludhiana.

                                                                                                    … Opposite Parties

 

Complaint u/S 12 of the Consumer Protection Act, 1986.

 

            Quorum: Sh. G.K. Dhir, President,

                              Sh. S.P. Garg, Member.

 

            Present: Sh. S.S.Heer, Advocate for complainant.

                           Sh. S.S.Grewal, Advocate for the opposite parties.

 

ORDER:

(Per G.K. Dhir, President)

1. Complainant, Neelam Kumari has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 by alleging  that she had deposited a sum of Rs. 950.00P vide receipt No. 44476 dated 18.11.1982 with the opposite parties as earnest money for the allotment of plot measuring 125 sq.yards in the Development Scheme of 475 acres/ Shaheed Bhagat Singh Nagar, Ludhiana vide draft No. 787044 dated 18.11.1982 drawn on State Bank of Patiala. The opposite parties allotted a plot No. 1056G, measuring 125 square yards by draw of lots held on 10.9.1999.  Confirmation regarding the said plot has been received by the complainant vide Memo No. LIT/SB/1809 dated 4.11.1999 on the terms and conditions mentioned in the letter.  Complainant being allottee of the said plot, received schedule of payment along with allotment letter qua plot No. 1056G. Total cost of the said plot was Rs. 1,81,875.00.  As per clause No. 13 of the allotment letter, opposite parties directed the allottee to execute an agreement for sale of the plot within 30 days after the deposit of 1/4^th sale money. Direction for getting possession even was issued.   Complainant executed said agreement on 29.11.1999 after depositing 1/4^th of the amount of sale consideration vide draft No. 858731 dated 29.11.1999. Rs. 45,469.00 was deposited through aforesaid draft drawn on State Bank of Patiala, Extension Counter, Milk Plant, Ludhiana.  That amount was received by the opposite parties vide receipt No. 5598 dated 30.11.1999.  2^nd  installment of the said plot of the amount of Rs. 35,566.00 was deposited by the complainant with opposite parties vide cheque No. 096519 dated 26.6.2000 drawn on State Bank of India, Aggar Nagar, Ludhiana.  That amount was received by the opposite parties through receipt No. 9920 dated 27.6.2000. 3rd installment of Rs. 33,929.00 was deposited by the complainant vide draft No. 858846 dated 12.12.2000 drawn on State Bank of Patiala. That installment was received by the opposite parties vide receipt No. 3236 dated 14.12.2000.
2. 4^th, 5^th and 6^th  installments were deposited by the complainant vide drafts no. 858889 dated 7.6.2001 (of amount of Rs. 32,292.00), 859826 dated 1.1.2002 (of amount of Rs. 30,656.00) and 859870 dated 27.6.2002 (of amount of Rs. 28,919.00).  All these drafts were drawn on State Bank of Patiala and received by the opposite parties vide Receipts No. 7674 dated 7.6.2001, 12585 dated 2.1.2002 and 15549 dated 27.6.2002. Possession of the plot had already been got by the complainant and thereafter, he has raised construction on it. Complainant approached the O.Ps for execution of the sale deed in her favour, but to no effect.  Thereafter, letter dated 3.12.2013 was sent to the O.Ps for requesting them to execute the sale deed after receipt of non-construction charges and other enhancement fee etc. Opposite Parties  were also requested to apprise about the balance payable amount by the complainant along with amount of expenses to be borne on sale deed. Complainant deposited bankers cheque No. 471554 dated 24.12.2013 of amount of Rs. 1,24,700.00 drawn on State Bank of India, Aggar Nagar Branch, Ludhiana with opposite parties towards the entire payable dues.  However, complainant was surprised to receive a letter/memo No. LIT/SB/6513 dated 13.2.2014 vide which she was directed to send the photostat copy of the original allotment letter and receipts regarding deposit of installments.  Even the OPs returned the bankers cheque with remarks “The received draft is being returned for the time being”. Required documents were submitted with  OPs. In this way, the complainant performed her part of agreement and also complied with the terms and conditions of allotment of aforesaid plot, but despite that the sale deed has not been executed, which amounts to deficiency of service on the part of the opposite parties. Compensation of Rs. 50,000/- along with litigation expenses of Rs. 11,000/- claimed. Direction also sought to be issued against the opposite parties for calling upon them to execute the documents of title in favour of the complainant.
3. In written statement submitted by the opposite parties, it is pleaded inter alia as if, the complaint is not maintainable; complainant is estopped by her act and conduct from filing the complaint; complaint barred by limitation; complainant has not approached the Forum with clean hands; complainant is not a ’consumer’ nor she has cause of action. It is claimed that sale agreement has not been executed by the complainant and even she failed to pay the due installments as per payment schedule.  Complainant deposited 2^nd installment on 27.6.2000 against due date of 4.6.2000 and 3^rdinstallment  on 14.12.2000 against due date of 4.12.2000.  Amounts of 4^th,  5^th and  6^th installments were deposited by the complainant on 7.6.2001, 2.1.2002 and 27.6.2002 against the due dates of 4.6.2001, 4.12.2001 and 4.6.2002 respectively. Complainant is liable to pay the interest on late payments. Sale deed can only be executed after the compliance of the terms and conditions of the allotment letter and deposit of the entire amount including the amount of enhancement and non-construction charges.  The bankers cheque sent by the complainant was returned on the ground that due amount comes to Rs. 2,25,346/- as on 24.12.2013.  Further, it is claimed that complainant is liable to deposit Rs. 2,66,098/- till date, besides, future interest and other charges.   Complainant failed to furnish the original allotment letter and receipts as demanded by the opposite parties and as such, there is no deficiency in service on the part of the opposite parties.  Complaint of complainant alleged to be false and frivolous.
4. Complainant to prove her case, tendered in evidence her affidavit Ex.CA along with documents Ex. C1 to Ex. C18 through recorded statement of her counsel, and thereafter closed the evidence.
5. On the other hand, counsel for the opposite parties tendered in evidence affidavit Ex.RW1 of Harinder Singh Chahal, Executive Officer of Ludhiana Improvement Trust along with document Ex. R1 and closed the evidence.
6. Written arguments not submitted by any of the parties. Oral arguments heard. Records gone through.
7. It is vehemently contended by Sh. S.S. Heer, advocate that due installments had been paid through receipts/drafts placed on record as Ex.C6 to Ex. C13, but despite that sale deed has not been executed. Rather, it is contended that the balance amount of Rs. 124700.00 payable on account of non-construction charges and enhancement fee etc., has been sent by complainant to OP2 vide draft (Ex. C15) with letter (Ex. C14), but despite that sale deed has not been executed and that amounts to deficiency of service on the part of the opposite parties. Letter Ex. C-16 had been sent by the opposite parties on 13.2.2014 for calling upon the complainant to send photostat copies of the receipts of deposit of installments and that is why draft (Ex. C15) returned for the time being. This letter of 13.2.2014 sent by the opposite parties virtually gave cause of action to complainant to file the complaint, particularly, when she had already sent Photostat copies of the allotment letter and receipts through letter Ex. C-18.  Even from the pleading of the opposite parties, it is made out that 6 installments of the due amounts had been deposited by the complainant. However, from the claim of opposite parties, it is made out that due installment amounts were not deposited as per schedule of payment stipulated through Ex. C4.  Certainly, payment of the due amounts has not been made as per schedule worked out in Ex. C4.
8. First installment of Rs. 45,469/- i.e.,  1/4^th of the sale consideration amount was to be deposited by 4.12.1999 as per Ex. C-4 and the same actually was deposited on 30.11.1999  through draft/receipt as borne from contents of Ex. C6 and Ex. C7.  So, 1^st installment was deposited in time. After going through Clause No. 13 of allotment letter Ex. C2, it is made out that complainant was required to execute an agreement for sale of plot within 30 days after the deposit of 1/4^th  of sale money and thereafter, she will have to get possession of the plot. In case, complainant failed to execute the agreement within 30 days, then the possession will be considered to be handed over and the Trust will not be responsible for any encroachment etc. on the plot. So, that Clause No. 13 of Ex. C2 provides for  execution of agreement  for sale within 30 days, after deposit of 1^st installment through Ex. C6 and Ex. C7 as  referred above, but despite that the agreement for sale has not been executed, because no document produced to show about execution of said agreement. Even if, said agreement of sale has not been executed within 30 days, despite that same will have bearing to the effect that opposite parties are not responsible for any encroachment etc. on the plot allotted to the complainant.  It is so, because the same is stipulated in Clause No. 13 of the allotment letter Ex. C2. So, non-execution of agreement of sale will not denude the complainant from getting the sale deed executed.  Rather, non-execution of agreement of sale will deprive the complainant of his right of removal of encroachment. There is no dispute regarding the fact that possession of the allotted plot has already been got by the complainant and she has raised construction thereon. If that be the position, then just due to non-execution of agreement of sale, complainant cannot be deprived of her right to get the sale deed executed. Rather, after receipt of the entire installment amounts, the Trust is bound to execute the sale deed in favour of the complainant as per terms and conditions of Ex. C-2.
9. After going through the contents of  Ex. C-2, it is made out that in case, the installment amount not deposited by the due dates  indicated in the schedule, then complainant liable to pay penal interest @ 13% per annum in the 1st month, 14% per annum in the 2^nd month, 15% per annum in the 3^rd month, 16% per annum in the 4^th month, 17% per annum in the 5^th month and 18% per annum in the 6^th  month. In case, these installments not paid upto 6 months gap, then the Trust entitled to resume the plot.  But even then, the same is liable to be  restored to complainant on payment of upto due installments, penal interest and 20% penalty. This in-fact is stipulated by Clause 5 of Ex. C-2.  So, resumption of the plot cannot take place in this case because complainant belatedly deposited the due installments and she is ready to pay the non-construction charges, enhancement charges and other leviable charges. After going through Ex. C-8 to Ex. C-13 vis-à-vis contents of Ex. C-4, it is made out that though the 2^nd installment was payable on 4.6.2000, but the same was deposited on 27.6.2000.  Likewise, 3^rd to 6^th installment amounts were paid on 14.12.2000, 7.6.2001, 2.1.2002 and 27.6.2002 against due dates of 4.12.2000, 4.6.2001, 4.12.2001 and 4.6.2002.  So, there was somewhat minor delay in making payment of the installments.  However, all the six installment amounts have been paid by the complainant to the opposite parties as per worked out schedule (Ex. C4).  If so, by keeping in view Clause 5 of Ex. C-2, opposite parties can recover penal interest and 20% penalty from complainant only.
10. Complainant instead of seeking information from opposite parties qua the actual due payable amount of non-construction charges, enhancement charges etc., herself sent draft (Ex. C-15) of Rs. 1,24,700.00 through letter Ex. C-14 of dated 3.12.2013 and as such, the opposite parties were justified in returning the cheque, particularly, when as per them the due payable amount was of Rs. 2,25,346/- as on 24.12.2013.  Details of those recoverable amounts have been mentioned in Ex. R-1. Even complainant in para 9 of the complaint claimed that she is ready to pay the non-construction charges and other enhancement fee and if that be the position, then certainly the complainant also is at fault in not paying entire dues.  Besides, complainant herself committed a default in making the payment of the six installment amounts in time as per Schedule of Payment (Ex.C-4) and as such, exclusive deficiency in service  on the part of the opposite parties cannot be inferred. However, opposite parties after acceptance of the chargeable amount bound to execute the sale deed after issue of allotment letter (Ex. C-2) and as such, the ends of justice warrant that direction should be issued to the opposite parties to execute the sale deed in favour of the complainant after receipt of due  amounts of payable interest, non-construction charges etc.  However, the opposite parties will have to disclose the due payable amount of interest, non-construction charges and other recoverable charges to complainant. On notification of these due amounts by the opposite parties to complainant through letter, the complainant will have to deposit the same with opposite parties before getting the sale deed executed. Expenses for registration of the sale deed etc. will have to be borne by complainant.    
11.  As a sequel of the above discussion, complaint allowed in terms that the   opposite parties will disclose the due payable amount of interest, non-construction charges, penalty amount and any other recoverable charges from   complainant within 30 days from the date of receipt of copy of this order.  The due payable amount will be notified by the opposite parties to complainant within 30 days by sending a written letter. After receipt of that letter, complainant will deposit the claimed amount within 30 days and thereafter the opposite parties will execute the sale deed in favour of the complainant subject to the condition that expenses for registration of the sale deed will have to be borne by complainant. That sale deed will be executed by the opposite parties within 30 days after receipt of the recoverable amounts. Keeping in view the facts and circumstances of the case, no order as to costs or of compensation. File be indexed and consigned to the record room.

Announced in open Forum.

18.11.2015

                                      ( S.P. Garg )                                             ( G.K. Dhir )

                                        Member                                                  President