BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 70 of 2021
Date of Institution : 18.03.2021
Date of Decision : 25.07.2023.
Devender Singh son of Shri Maha Singh, resident of VPO Budhseli, Tehsil Siwani Mandi, District Bhiwani, now residing at H. No. 15/ 384, Barnala Road, Gali Lal Kothi Wali, Bhagat Singh Colony, Sirsa.
……Complainant.
Versus.
Punjab Urban Planning & Development Authority, (Now BDA), PUDA Complex, Bhagu Road, Bhatinda, through its Estate Officer.
...…Opposite party.
Complaint under Section 35 of the Consumer Protection Act, 2019.
BEFORE: SH. PADAM SINGH THAKUR……..…PRESIDENT
SMT. SUKHDEEP KAUR………. …… MEMBER.
Present: Smt. Gurpreet Kaur Gill, Advocate for the complainant.
Sh. K.K. Malik, Advocate for opposite party.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred as OPs).
2. In brief the case of the complainant is that op launched a scheme on 27.09.2012 in which the op allotted freehold residential plots at PUDA Enclave, Budhlada and for this purpose applications were invited with 10% earnest money of the total amount. The complainant had applied under general category for purchase of a plot of 100 square yards vide application no. 2796 and paid Rs.60,000/- as earnest money to the op. The draw of lots was conducted on 15.01.2013 by PUDA at Budhlada and complainant was successful in the same. The op issued letter of intent (LOI) bearing no. PUDA-EO/2013/2241 dated 26.02.2013 to the complainant. The complainant paid next 15% amount i.e. Rs.90,000/- through DD No. 075223 dated 19.03.2013 to the op as per the term of the scheme against receipt no.20 dated 20.03.2013. The possession of the plot was to be handed over by op to him after completion of development works at site or in 18 months from the date of issuance of allotment letter whichever was earlier. It is further averred that approximately after four years from the date of draw, op issued allotment letter dated 03.10.2016 bearing memo no. PUDA/EO/2016/6712 allotting plot no. 746 and further demanded balance amount of Rs.4,50,000/- being 75% of the tentative price of the plot. Thereafter, vide letter dated 17.01.2018, his plot has been changed from plot no. 746 to plot no. 452 on administrative reasons of PUDA and no prior notice/ intimation was given to the complainant by op regarding changing of plot number and also development of the earlier allotted plot. The complainant alongwith other plot holders requested the op to complete the development work and to hand over the possession of the plot but to no effect. It is further averred that till date no boundary wall got constructed by the op in the above scheme and op also failed to provide even the basic amenities like garbage collection centre/ bins and other civil amenities. Even the op vide its letter no. 999 dated 11.04.2019 issued to Irrigation Branch, Patiala has admitted that there is no water supply in said PUDA Colony, Budhlada. That a notice has been issued by the op vide letter dated 27.07.2020 to the complainant that he had to make payment of Rs.5,71,500/- by 3rd April, 2020 but he had not paid the same and they further mentioned that why this money should not be charged from him with interest. The op asked the complainant to appear in the office of PUDA on 27.08.2020 at 11.00 a.m. failing which action will be taken under Punjab Regional & Development Act, 1995. It is further averred that before appearing in the office of PUDA at Bathinda, the complainant physically visited on the site i.e. Sugar Mill, Budhlada and found that till date no development was made by the op as per terms and conditions of the scheme. The complainant suffered physical harassment and mental agony due to the act of PUDA Department, Bathinda because the op also failed to hand over the possession in time and is also deficient in rendering services to the complainant. That on 27.08.2020, the complainant visited the office of PUDA, Bathinda and requested to pay the principal amount i.e. Rs.1,50,000/- as no other option was with the complainant because the principal amount has already been withheld by op for at least seven years. After considering the request of complainant, the op ordered to pay principal amount to complainant vide letter dated 15.09.2020 and after that payment of Rs.1,50,000/- has been made by op vide cheque no. 038723 dated 21.10.2020. However, the complainant is also entitled to the interest at the rate of 24% per annum on the deposited amount of Rs.1,50,000/- with effect from the date of deposit till final payment of the interest amount to the complainant and is also entitled to compensation of Rs.2,50,000/- for unnecessary harassment and also entitled to litigation expenses. Hence, this complaint.
3. On notice, op appeared and filed written statement raising certain preliminary objections regarding jurisdiction, maintainability, cause of action and that as per the condition no.20 mentioned in the letter of intent, all the disputes and/or differences which may arise in any manner touching or concerning this allocation shall be referred to the Sole Arbitrator i.e. Chief Administrator PUDA Mohali or any person appointed by him in this behalf. The award of such arbitrator shall be final and binding on the parties. Arbitrator shall be governed by the Arbitration and Conciliation Act. Since there is arbitration clause in the letter of interest, hence this Commission has no jurisdiction to entertain and try the present complaint. It is also submitted that complainant has got no locus standi to file the present complaint and complainant has suppressed the true and material facts from this Commission effecting the merits of the case and has not come with clean hands and complainant is estopped from filing the present complaint by his own act and conduct. On merits also, it is submitted that complainant is not the consumer of the op within the definition of Consumer Protection Act. The plot in question is situated at Budhlada District Bathinda and therefore, this Commission has no jurisdiction to entertain and try the present complaint. In the present complaint, the complainant intentionally and deliberately has shown himself to be the resident of Barnala Road, Sirsa only in order to bring the present complaint within the jurisdiction of this Commission. That at the time of applying for allotment of the plot in question, the complainant was the resident of Mandi Siwani District Bhiwani, hence this Commission has no jurisdiction to entertain the present complaint. From this it is very much clear that complainant has booked this plot for investment/ commercial purpose in order to gain profits, so complainant does not fall under the definition of Consumer. It is further submitted that vide letter No.2241 dated 26.02.2013 issued by the ops, the site of Sugar Mill, Budhlada was allotted to the complainant and thereafter vide letter No. 6712 dated 03.10.2016 plot No. 746 measuring 100 Sq. yards was allotted to the complainant. Thereafter, vide letter No. 1019 dated 08.02.2018, the complainant was informed that due to re-planning a fresh draw was conducted on 17.10.2018 and a new plot no. 452 was allotted to the complainant. All the development work was completed in the above site and complainant was duly informed that since the development work has already been completed and he was offered to take possession of the same. He was also informed that in case he failed to take possession of the same, it will be deemed that possession has been delivered to the complainant. That because of default in making the payments of the installments, a show cause notice under the provisions of Section 45 (1) of Punjab Regional and Town Planning & Development Act, 1995 was issued to the complainant vide letter No. 341 dated 27.07.2020 to deposit the balance amount of Rs.5,71,500/- and to put his appearance before the office. The complainant appeared before the office of the ops on 27.08.2020 and preferred to surrender the plot in dispute and requested to refund the amount deposited by him under the provisions and rules of the PUDA Act. As per the request made by complainant, on 15.09.2020 an amount of Rs.1,50,000/- was refunded to the complainant vide cheque no. 038723 dated 21.10.2020. It is further submitted that in their request letter, he submits that due to financial problem, he cannot hold the above said plot and not in position to deposit the remaining amount of the plot and want to surrender the same. From all this it is very much clear that complainant was not having funds to pay the remaining amount. Hence, the complaint is liable to be dismissed on this score. Remaining contents of complaint are also denied and prayer for dismissal of complaint made.
4. The complainant has tendered in evidence his affidavit Ex. CW1/A and documents Ex.C1 to Ex.C8.
5. On the other hand, op has tendered affidavit of Mrs. Balwinder Kaur, Estate Officer as Ex. R1/A and documents Ex.R2 to Ex.R7 and photographs Ex.R8 to Ex.R17.
6. We have heard learned counsel for the parties and have gone through the case file carefully.
7. In so far as preliminary objection regarding jurisdiction of this Commission taken by op is concerned, the complainant has proved on file that being employee of Chaudhary Devi Lal University, Sirsa he is residing in Sirsa and as such as per amended provisions of Consumer Protection Act, 2019 since complainant is resident of Sirsa, therefore, this Commission has jurisdiction to entertain and try the present complaint. The complainant has claimed interest on the amount of Rs.1,50,000/- which remained deposited with the op from the year 2013 to 21.10.2020 at the rate of 24% per annum from the date of deposit till the final payment of the interest amount. Admittedly the complainant deposited amount of Rs.60,000/- being the earnest money with the op in lieu of allotment of residential plot measuring 100 square yards at PUDA Enlave, Budhlada and thereafter also deposited amount of Rs.90,000/- the op on 19.03.2013 being next installment of 15% amount and has sought the refund of total deposited amount of Rs.1,50,000/- from the op on the ground that as op failed to provide basic amenities in the area of allotted plot in question No. 452 then changed to 746, therefore, finding no other option complainant surrendered the plot to the op and sought refund of the deposited amount from op. The plot in question bearing no. 746 was allotted to the complainant on 3.10.2016 i.e. after more than four years of draw and development work was to be completed within 18 months from the date of allotment letter but according to the complainant till 20.08.2020 complainant found that no development was made by the op as per terms and conditions of the scheme and as such complainant opted to surrender the plot and requested the op to make refund of his deposited amount. It is also not disputed that on the request of complainant, the op has refunded the above said amount of Rs.1,50,000/- to the complainant vide cheque no. 038723 dated 21.10.2020. So the dispute between the parties is regarding interest on the amount of Rs.1,50,000/- as complainant has claimed interest on that amount for the period during which above said amount of Rs.1,50,000/- remained deposited with the op on the ground of non providing of basic amenities and development work in the area of the plot in question. In this regard complainant has asserted that op vide its letter no. 999 dated 11.04.2019 issued to Irrigation Branch, Patiala has admitted that there is no water supply in said PUDA Colony, Budhlada. The ops have not proved on record through any cogent and convincing evidence that development in the area was complete prior to 27.08.2020 i.e. date of visit of complainant at the site. The complainant finding no development work and even finding no basic amenities at the site opted to surrender the plot in question to the op and requested the op to surrender the plot in question. The letter of intent was issued by the op to the complainant on 26.02.2013 and after a gap of more than three years on 3.10.2016 the op issued allotment to the complainant but even after a period of further four years the op failed to develop the site in question and as such complainant preferred not to take possession of the plot in question from op. During the course of arguments, learned counsel for op has contended that complainant himself preferred to surrender the plot in question to the op as he was not having sufficient means to pay the remaining amount of the plot in question and through his application (Ex.R6) the complainant requested the op that due to financial problem, he cannot hold the above said plot and not in position to deposit the remaining amount of aforesaid plot and as such complainant is not entitled to any interest as there was no fault on behalf of op in this regard. However, we do not agree with this contention of learned counsel for op because as there was no development work at the site, the complainant finding no other option under compelling circumstances opted to surrender the plot in question and requested the op to refund the deposited amount. It appears that only in order to secure his deposited amount and to take refund of his hard earned amount the complainant was compelled to mention the above said fact of financial problem in his request/ application moved to the op. The op has been enjoying and gaining profit on the hard earned money of complainant since long and the principle of natural justice provides that op should have acted in a reasonable time but op has even failed to provide basic amenities at the site. There is nothing from the side of the op to show that why there was delay in the completion of the project at the site. The photographs placed on file by op to show progress at the site are not helpful to the op because op may have done some progress in the work at the site after surrender of the plot by complainant or after filing of present complaint and without any cogent and convincing evidence it cannot be said that photographs pertain to the progress work completed before 27.08.2020. As such complainant is entitled to interest on the amount of Rs.1,50,000/- from the op. In this regard we are also fortified with the decisions of the Hon’ble Supreme Court of India in cases titled as Pioneer Urban Land & Infrastructure Ltd. vs. Govindan Raghavan, Civil Appeal No. 12238 of 2018 decided on 02.04.2019 and also in Fortune Infrastructre Versus Trevor D’ Lima & Ors. (2018 ) 5 SCC 442, wherein it was held that in case of delay in delivering possession of the residential units/ plots by the project proponent, the buyer cannot be compelled to take possession at later stage and, on the other hand, he/ she is entitled to refund of the amount paid alongwith interest. Under these circumstances, it is held that the complainant is entitled to get refund of the amount paid alongwith interest @12% p.a. from the respective dates of deposits onwards till realization in view of principle of law laid down by the Hon’ble Supreme Court of India in HUDA Versus Neelam Sharma, Civil Appeal No. 3417 of 2003 decided on 18.08.2004, wherein it was held that in case of refund of amount, the Interest Act would apply and 12% interest is to be granted from the date of amounts deposited till repayment. The another objection taken by the op that complainant booked the plot for investment/ commercial purpose has no force and merit and stands overruled. Further the objection of the op that matter should have been referred to the Arbitrator has also no substance because as per Section 100 of Consumer Protection Act, 2019, the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
8. In view of our above discussion, we allow the present complaint and direct the opposite party to pay the interest at the rate of @12% per annum on the amount of Rs.1,50,000/- from the date of amounts deposited (i.e. of the amount of Rs.60,000/- deposited with application and Rs.90,000/- deposited on 20.03.2013) till the date of repayment of the above said amount of Rs.1,50,000/- i.e. 21.10.2020 within a period of 45 days from the date of receipt of copy of this order. We also direct the op to further pay a sum of Rs.10,000/- as composite compensation for harassment and litigation expenses to the complainant within above said stipulated period. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member President,
Dated: 25.07.2023. District Consumer Disputes
Redressal Commission, Sirsa.
