Punjab

Faridkot

CC/16/227

Chhinderpal Kaur - Complainant(s)

Versus

PUDA - Opp.Party(s)

Atul Gupta

19 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :      227

Date of Institution:  10.08.2016

Date of Decision :    19.12.2016

 

Chhinder Pal aged about 52 years, s/o Avtar Singh r/o Near Amrik Singh House, Village Sangrahoor, PO Janerian, District Faridkot.      

                                               .......Complainant

Versus

Punjab Urban Planning and Development Authority, Bathinda through its Estate Officer, PUDA Complex, Bhagu Road, Bathinda Tehsil and District Bathinda-151001.

                     ....Opposite parties (Ops)

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh Ajit Aggarwal, President,

Sh P Singla, Member.

 

Present:      Sh Atul Gupta, Ld Counsel for complainant,    

                  Sh Vinod Monga, Ld Counsel for OP.

                  

 (Ajit Aggarwal, President)

                                        Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to withdraw the order dated 5.09.2014 and for further directions to OP to refund the principal amount of Rs.2,25,000/-paid by complainant as earnest money alongwith interest and to pay Rs.1,00,000/- as compensation for mental agony and harassment and financial loss to complainant besides litigation expenses of Rs.20,000/-.

2                                  Briefly stated, the case of the complainant is that OPs launched a project for development of colony at Sugar Mill Site, Faridkot as PUDA Enclave and as per scheme, plots were to be allotted by way of draw of lots. Said scheme started on 3.06.2013 and closed on 2.07.2013. Vide application no. 464, Complainant applied for plot in said scheme and he was declared successful in the allotment of plots and letter of intent dated 20.12.2013 was issued to him and he paid Rs. 2,25,000/- as earnest money with OPs. After issuance of LOI, complainant approached OP with request to show him the Document of Title in favour of PUDA, but OP did not show the same. Complainant also told OP that land in question is already attached by court in favour of many farmers due to non payment of purchase price by State Government and therefore, Revenue Department was unable to transfer the land or ownership of land in the name of OP and thus, land in question is not free from encumbrances, but despite this OP did not listen his request. Complainant was always willing and ready to comply with the part of Letter of Intent, but as Ops have no clear title over the land in question, therefore, under compelling circumstances, complainant did not deposit the remaining amount with OP. It is further submitted that Khasra numbers in which OP claims to have raised PUDA Enclave are already under dispute and have been mutated in the name of Punjab Co-operative Department. Having faith in OP, complainant deposited Rs.2,25,000/-with OP, but there is concealment of real facts on the part of OP and due to which complainant has suffered mental agony and harassment alongwith financial loss. Complainant visited OP with a request to refund his entire amount as they are not the owners of the land in question, but it did not listen his request. Instead of returning the amount of complainant, the Ops forfeited the amount vide letter dt 5.09.2014, which is arbitrary and is liable to set aside. Complainant made many requests to OP to withdraw the said letter, but all in vain. All this amounts to deficiency in service and trade mal practice on the part of Ops and has great loss to him for which he has prayed for compensation alongwith main relief. Hence, the  present complaint.

3                     The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 22.08.2016, complaint was admitted and notice was ordered to be issued to the opposite party.

4                    On receipt of notice, OPs appeared in Forum through Counsel and filed reply taking legal objections that there is no deficiency in service on the part of OP, rather complainant himself failed to comply with the terms and conditions of the letter of intent as complainant failed to deposit 15% of the price of plot within a period of 30 days from the issuance of letter of intent. LOI was issued to complainant on 20.12.2013 but complainant failed to deposit the 15% money of allotment price of plot within specified period and thereafter, a letter was issued to complainant to show cause that why he did not deposit the 15% of cost price of plot within prescribed time, but complainant did not turn up. He neither made payment of 15% of price of plot nor made any request for extension of time and therefore, vide order dated 5.09.2014, earnest money of complainant was forfeited as per clause of Letter of Intent and complainant was duly informed about this fact vide letter dated 5.09.2014. It is further averred that complainant has no locus standi to file the present complaint. However, on merits, OP denied all the allegations levelled by complainant being wrong and incorrect and asserted that there is no deficiency in service on their part, but it is admitted  by OP that they launched a PUDA Enclave project for allotment of residential plots at Sugar Mill Site, Faridkot and they also issued brochures containing terms and conditions of allotment. It is further averred that after issuance of LOI, complainant never approached them to see the Document of Title of  PUDA.  Moreover, as per the terms and conditions of Letter of Intent, complainant did not deposit the 15% of price of plot within specified period of 30 days from the date of issuance of said LOI. The complainant was served with a letter  for depositing the said amount, but complainant further failed to deposit the 15% of the price of the said plot and therefore, vide order dated 5.09.2014, the amount of earnest money was forfeited and the complainant was                                          duly informed about this fact. Now, complainant has fabricated a false case and he has no right to seek refund of forfeited amount. It is reiterated that there is no deficiency in service on the part of OP and prayed for dismissal of complaint with costs.

5                            Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-5 and then, closed the evidence.

6                           In order to rebut the evidence of the complainant, ld Counsel for OPs tendered in evidence affidavit of Gurjant Singh as Ex OP-1, documents Ex OP-2 to 4 and then, closed the evidence.

7                           Ld Counsel for complainant has argued that OPs launched a scheme for development of colony at Sugar Mill site, Faridkot. As per scheme, plots were to be allotted by way of draw of lots. Complainant applied for plot measuring 250 square yards and deposited Rs 2,25,000/- as earnest money. As per scheme, the colony was to be developed within two years and possession was to be delivered after completion of development work at site or within 18 months from the date of issuance of allotment letter, whichever is earlier by the OPs. The draw of lots was held and complainant succeeded in it. After issuance of LOI, complainant requested OP to show him the Document of Title in favour of PUDA, but OP did not show the same. Complainant also told OP that land in question is already attached by court in favour of many farmers due to non payment of purchase price by State Government and therefore, Revenue Department was unable to transfer the land or ownership of land in the name of OP and thus, land in question is not free from encumbrances, but despite this OP did not listen his request. Complainant was always willing and ready to comply with the part of Letter of Intent, but as Ops have no clear title over the land in question, therefore, under compelling circumstances, complainant did not deposit the remaining amount with OP. It is further submitted that Khasra numbers in which OP claims to have raised PUDA Enclave are already under dispute and have been mutated in the name of Punjab Co-operative Department. Having faith in OP, complainant deposited Rs.2,25,000/-with OP, but there is concealment of real facts on the part of OP and due to which complainant has suffered mental agony and harassment alongwith financial loss. Complainant visited OP with a request to refund his entire amount as they are not the owners of land in question, but it did not listen his request. Instead of returning the amount of complainant, the Ops forfeited the amount vide letter dt 5.09.2014. Complainant made many requests to OP to withdraw the said letter, but all in vain. All this amounts to deficiency in service and trade mal practice on the part of Ops and has great loss to him. He has prayed for accepting the present complaint alongwith main relief and compensation and stressed on documents Ex C-1 to 5.

8                         Ld Counsel for OPs argued that the present complaint is not maintainable as per terms and conditions of the agreement. It is averred that there is no deficiency in service on the part of OP, rather complainant himself failed to comply with the terms and conditions of the letter of intent as he did not deposit 15% of the price of plot within a period of 30 days from the issuance of letter of intent. LOI was issued to complainant on 20.12.2013 and vide letter, complainant was asked to give reason for nor depositing the said amount in specified period but complainant failed to deposit the 15% money of allotment price of plot within specified period nor made any request for extension of time and therefore, vide order dated 5.09.2014, earnest money of complainant was forfeited as per clause 5 of Letter of Intent and complainant was duly informed about this fact vide letter dated 5.09.2014. It is further averred that complainant has no locus standi to file the present complaint. All the allegations levelled by complainant are denied being wrong and incorrect and asserted that there is no deficiency in service on their part, but it is admitted  by OP that they launched a PUDA Enclave project for allotment of residential plots at Sugar Mill Site, Faridkot and they also issued brochures containing terms and conditions of allotment. It is further averred that after issuance of LOI, complainant never approached them to see the Document of Title of PUDA. Moreover, as per terms and conditions of LOI, complainant did not deposit the 15% of price of plot within specified period of 30 days from the date                                                     of issuance of said LOI, but he further failed to deposit the 15% of price of said plot and therefore, vide order dated 5.09.2014, amount of earnest money was forfeited and complainant was duly informed about this fact. Now, complainant has fabricated a false case and he has no right to seek refund of forfeited amount. It is reiterated that there is no deficiency in service on the part of OP and prayed for dismissal of complaint.

9                       We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents placed on the file.

10                       The case of the complainant is that OPs launched a scheme for development of residential colony at Sugar Mill site, Faridkot and complainant applied for a plot of 250 square yards. He was allotted a plot. The OPs duly issued a letter of intent to him as per demand of OPs, he deposited Rs 2,25,000/-as earnest money, but he did not deposit the 15% of value of the plot with OPs as OP failed to show the Document of Title in their favour. As complainant was not sure about the title of land in question in the name of OP and it was also in his notice, that said land is attached by Ld District Judge, Faridkot in favour of many farmers due to their dues pending towards government and it was not free from encumbrances, therefore due to these reasons complainant did not deposit the 15% of price of land to OP. Complainant requested OP for refund of amount paid by him to OPs as part price of plot in question but instead of returning the amount, they forfeited the same vide letter dt 5.09.2014 arbitrarily against the law. On the other hand, OP allege that as complainant did not comply with the terms and conditions of Letter of Intent and failed to deposit the 15 % of price of plot to them within specified period, therefore, they legally and as per rules forfeited the earnest money deposited by complainant and also gave due information about this fact to complainant vide letter dated 5.09.2014. Ld Counsel for complainant argued that as per condition no. 14 of scheme, the possession of the plot shall be handed over to the allottee after completion of development work at the site or within 18 months from the date of issuance of allotment letter, whichever is earlier. The allotment letter/ Letter of Intent was issued to him on 20.12.2013 and as per assurance of OPs, the possession of plot was to be delivered to complainant within 18 months from the date of letter of allotment but on the site there is no development work, nor any effort is made by Ops to deliver the possession of plot to allottee and even OP have no ownership over that place. Order Ex C-4 dated 5.09.2014 vide which OP forfeited the earnest money of complainant are totally wrong as when OP have no proprietorship or ownership over the land in question, they have no right to develop any colony at that place. They have tried to befool the innocent public and tried to grab  their money in the garb of letter of intent by making false assurance given at serial no. 14 of the LOI, where they have clearly mentioned that possession of land will be provided to allottee after completion of development works at site or within 18 months from the date of issue of allotment letter, whichever is earlier. It is strange that when orders for attachment of said land were issued by Ld District Court, Faridkot in favour of farmers and land is not free from encumbrances, then, how can they raise any colony over that place and they have no right to put conditions regarding the land or place, which does not belong to them. Forfeiture of earnest money of complainant is entirely an illegal act as they have no right to do so, rather they have detained the hard earned money of complainant illegally without any reason. Therefore, in these circumstances, the OPs cannot deny their liability to deliver possession of plot within time. If they do not deliver possession to allottee in time, then this is a deficiency and trade mal practice on their part. Even if OPs take plea of hardship that there is some dispute regarding land, due to which they are unable to develop the site, then in that case also, the allottees are entitled to get refund of the money deposited by them towards sale consideration of plot alongwith interest and compensation. He has put reliance on citation 2012 (2) CPC 524 titled as Barid B Bhattacharya Vs DCM Ltd & Ors decided by Hon’ble National Commission, where it is  observed that Petitioner/complainant was allotted a space in the project after receiving Rs 5,10,300/-for the same-As there was undue delay in commencement of project refund of deposited amount was claimed by the petitioner with compensation–District Forum allowed complaint and directed OP to refund Rs 5,10,700/-with compensation of Rs.2 lacs and cost of Rs 30,000/ State  Commission enhanced the  cost  of Rs  10,000/- in  addition  to claim allowed by Fora – Petitioner approached in  revision for further claim – Held , as petitioner was deprived of hard earned money due to negligence of respondent, a sum of Rs 1 lac is also allowed to petitioner  in addition  to   relief   already granted by District Forum-Interest at the rate  of  12%  on deposited    amount also allowed. He argued that  in  view of it,  the  complainant is entitled to refund of money deposited by him alongwith interest and compensation.

11                  It is further argued that the price of land in dispute is Rs.22,50,000/-and complainant has made payment of Rs.2,25,000/-and thus, complainant has not made the entire payment of land, therefore, ld counsel for complainant has relied upon case law cited as 2015 (3) Consumer Law Today, 48 titled as EMAAR MGF Land Ltd and anr Vs Dilshad Gill, wherein our Hon’ble National Commission, New Delhi has observed that “ Consumer Protection Act, 1986, Section 2 (i) (g)- Housing Construction–Delayin possession by appellant/Builder- Complainant/respondent defaulted in payment- Held- Appellants themselves have violated the material conditions with regard to handing over of the possession, now, it does not lie in their mouth to demand further payment from the respondent-The respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period. Hon’ble National Commission decided that if OPs have failed to hand over the possession in time, then, they can not demand further payment from the complainant. Moreover, in present case, OP have no proprietorship over the land in question and if that claimed by them to be theirs, does not belong to them and is not free from encumbrances and is even attached by order of Court in favour of farmers. To prove his case, complainant has produced copy of Jamabandi as Ex C-5 and from the perusal of this document, it is clear that earlier this land is owned by Co-operative Sugar Mill, Faridkot, but later on , it was mutated in the name of OPs, but now, vide order dated5.01.2016, this land is transferred from the name of OPs to Punjab Cooperative Department and it is no more owned by OPs. In these circumstances, OP cannot force complainant to make payment of remaining amount and they have no right to forfeit the earnest money deposited by complainant, rather they have illegally detained his money and deprived him of interest accrued on it. All this amounts to trade mal practice on the part of OP and complainant has suffered not only harassment but also financial loss due to this act of OP.

12                 After  careful  perusal of the record and in the light of  aforementioned discussion, we have  come to the conclusion that as per  terms and  conditions of the scheme, which are clearly mentioned at condition no. 14 in the Letter of Intent Ex C-2, OPs have to deliver the possession of  plot after  development within 18 months from the date of issuance of letter   of  allotment, whichever is earlier, but OPs  have  failed  to  comply  with  this   condition   and  have not  started  the  work  at  site. Rather, from the perusal of Ex C-5 i.e copy of mutation and jamabandi, it is transpired that OPs are not the owners of the land in dispute. In these  circumstances, we  are  fully  convinced  with  the  arguments  advanced  by ld counsel for  complainant and  case  law  produced  by  him. Complainant has fully succeeded in proving his case and is entitled for refund of money deposited by him as price of plot. Ops are liable for deficiency in service and trade mal practice. Hence, complaint in hand is hereby allowed with directions to OPs to refund of Rs.2,25,000/- the amount deposited by complainant with them as earnest money for plot alongwith interest at the rate of  12 % per anum from the date of its payment by complainant to them till its final realization. OPs are further directed to pay Rs.5,000/-as litigation expenses to complainant. OPs   are   directed   to   comply   with   the  order  within   one   month   from  the  date  of  receipt  of  the  copy   of  the   order,  failing  which  complainant  shall be entitled to initiate  proceedings  under   section 25 and 27 of the Consumer Protection Act. Copy of order be supplied parties free of costs as per rules. File be consigned to record room.

 Announced in open Forum:

  Dated: 19.12.2016        

Member                President             (P Singla)              (Ajit Aggarwal)