DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT
Complaint No. : 192
Date of Institution: 15.06.2017
Date of Decision : 15.01.2019
Gursimran Kaur wife of Inder Pal Singh r/o House No.126, Phase-II, Sector 65, Mohali.
.......Complainant
Versus
Punjab Urban Planning and Development Authority, through its Estate Officer, Bathinda.
....OP
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum: Sh Ajit Aggarwal, President,
Smt Param Pal Kaur, Member.
Present: Sh Bharat Bhushan, 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 refund the amount of Rs.7,62,650/-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.50,000/-.
2 Briefly stated, the case of the complainant is that alleging themselves to be absolute owners of land, OPs launched a project for development of colony at sugar mill site, Faridkot as PUDA Enclave and as per scheme, the plots were to be allotted by way of draw of lots. Said scheme opened on 3.06.2013 and closed on 2.07.2013, complainant applied for residential plot measuring 300 sq yards in general category and paid Rs.2,70,000/- i.e 10% of total price of land purchased as earnest money. As per scheme of OPs, the colony was to be developed and the possession of plot was to be delivered after completion of development work at site or within 18 months from the date of issuance of letter of allotment. Allotment letter was issued to complainant and he was asked to deposit 15 % of price of plot but due to some unavoidable circumstances, complainant could not deposit the same and then, OP ordered to forfeit the earnest money, but on appeal by complainant before Additional Chief Administrator, PUDA, Bathinda ordered to recall the order of OP regarding forfeiture of earnest money and said authority also directed complainant to deposit the amount with OP. Thereafter, complainant deposited Rs.4,05,000/-with OP vide dd no.154338 dt 6.01.2015 alongwith Rs.100/-demand draft dt 6.01.2015 as cost of appeal. OP directed complainant through letter dt 13.02.2015 to deposit Rs.87,650/-as penal interest and surcharge for delayed payment. Complainant deposited the penal interest with OPs vide dd no.084562 dt 10.06.2015. As per terms and conditions of scheme of OPs, the colony was to be developed and the possession of plot was to be delivered after completion of development work at site or within 18 months from the date of issuance of letter of allotment, but despite receiving 25% of price of plot, OP failed to carry any development work at the site and also did not deliver the possession of plot in question as per terms of letter of intent. Complainant alongwith other plot holders approached OP several times with request to complete the development work and to deliver the possession of plot, but all in vain as OP paid no heed to listen to their requests, which amounts to deficiency in service. Moreover, it has come to the notice of complainant that land in question which OP allege to be theirs does not belong to them and same is under attachment of several departments vide different attachment orders of court of law. It is submitted that land in question is already attached by Court of Ld Addl District Judge, Faridkot in favour of farmers also. OP is fully aware that land in question is not free from incumbrances, even then, they made allotment of plots of such land. OP have no ownership right over said property and therefore, complainant made several requests to OP to refund the entire amount deposited by him with them on account of sale consideration of his plot with interest, but OP is putting off the matter on one pretext or the other. Even legal notice issued by complainant to OP for refund of his amount bore no fruit. Complainant has faced great harassment and inconvenience due to this act of OP. All this amounts to deficiency in service and trade mal practice on the part of Ops and has caused 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 30.06.2017, 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 as per condition no. 27 of terms and conditions of allotment letter that in case of any dispute regarding allocation, it shall be referred to sole Arbitrator/Chief Administrator PUDA, Mohali and award passed by that authority shall be final and binding upon the parties. Further averred that no cause of action arises against answering OP. However on merits, OP have 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 OPs that they launched a scheme for development of colony at Sugar Mill Site and a plot of 300 square yards was allotted to complainant and he deposited Rs.2,70,000/-being 10% towards the price of the plot to them as earnest money as alleged. It is also admitted by OP that due to failure on the part of complainant to deposit 15 % of price of plot within 30 days of issuance of letter of intent, they cancelled the letter of intent vide order dt 5.09.2014 and forfeited the amount of 10% of price of plot deposited by complainant as earnest money. There is also no denial of the fact that vide order dt 17.12.2014, OP reinstated the allotment of plot subject to payment of balance price alongwith interest and penalty within 15 days and it is admitted that complainant deposited Rs.4,05,000/-with them. Complainant deposited Rs.87,650/- on 16.06.2015 vide receipt no.13026 as penal interest and surcharge for delayed payment of 15% of price of plot. However, it is totally refused that they ever assured him to deliver the possession of the plot after completion of development work at site or within 18 months from the date of issuance of letter of allotment, whichever is earlier. It is wrong that there is any dispute regarding proprietorship of land in question and it is also denied that they are not the owners of property in dispute. There is no negligence on the part of Ops in performing their duties with regard to allotment of plots and it is also wrong that OPs are not in a position to do so. Complainant has not suffered any loss due to OPs and complainant is not entitled to recover the claim amount or damages from OPs. It is reiterated that there is no deficiency in service on the part of OPs 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-14 and then, closed the evidence.
6 In order to rebut the evidence of the complainant, ld Counsel for OPs tendered in evidence affidavit of Amarjit Singh, Estate Officer, PUDA as Ex OP-1, document Ex OP-2 and then, closed the evidence.
7 We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents placed on the file.
8 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 300 square yards. The OPs duly issued a letter of intent to him and as per demand of OPs, he deposited Rs.2,70,000/-as Earnest Money. Thereafter, he was asked to deposit 15 % of price of plot but due to some unavoidable circumstances, complainant could not deposit the same and then, OP ordered to forfeit the earnest money, but on appeal by complainant before Additional Chief Administrator, PUDA, Bathinda recalled the order of OP regarding forfeiture of earnest money and said authority also directed complainant to deposit the amount with OP. Thereafter, complainant deposited Rs.4,05,000/-with OP vide demand draft dt 6.01.2015 alongwith Rs.100/-demand draft dt 6.01.2015 as cost of appeal. OP further directed complainant through letter dt 13.02.2015 to deposit Rs.87,650/-as penal interest and surcharge for delayed payment. Complainant also deposited the penal interest with OPs vide dd no.084562 dt 10.06.2015. As per terms and conditions of scheme of OPs, the colony was to be developed and the possession of plot was to be delivered after completion of development work at site or within 18 months from the date of issuance of letter of allotment, but despite receiving 25% of price of plot, OP failed to carry any development work at the site and also did not deliver the possession of plot in question to complainant as per terms of letter of intent. Complainant approached OP several times with request to complete the development work and to deliver the possession of plot, but all in vain as OP paid no heed to listen to their requests. Moreover, it is brought to the notice of this Forum that land in question is not free from incumbrances and is under attachment of several departments vide different attachment orders of court of law and OP have no ownership right over said property. Repeated requests and even legal notice issued by complainant to OP for refund of his amount bore no fruit. All this caused great harassment and it amounts to deficiency in service on the part of OP. Complainant has prayed for redressing his grievance by accepting the present complaint. In their reply, OPs admitted that they launched a scheme for development of colony and a plot of 300 square yards was allotted to complainant and complainant deposited Rs.2,70,000/- towards the price of the plot to them as alleged, but they refused that they ever assured him to deliver the possession of the plot after completion of development work at site or within 18 months from the date of issuance of letter of allotment, whichever is earlier. As per OP, due to failure on the part of complainant to deposit 15 % of price of plot within prescribed period of 30 days, they cancelled the letter of intent and forfeited the 10% of price of plot deposited by complainant as earnest money. It is not denied that vide order dt 17.12.2014, OP reinstated the allotment of plot subject to payment of balance price alongwith interest and penalty within 15 days and it is duly admitted that complainant deposited Rs.4,05,000/-with them. Complainant also deposited Rs.87,650/- on 16.06.2015 as penal interest and surcharge for delayed payment of 15% of price of plot. However, it is totally refused that they ever assured him to deliver the possession of the plot after completion of development work at site or within 18 months from the date of issuance of letter of allotment, whichever is earlier. It is wrong that there is any dispute regarding proprietorship of land in question and it is also denied that they are not the owners of property in dispute. OP sternly denied that they are not the proprietor of said land in dispute and prayed for dismissal of complaint with costs.
9 Ld Counsel for complainant argued that as per conditions of said scheme, the possession of the plot shall be handed over to the allottee after completion of development work at site or within 18 months from the date of issuance of letter of allotment, whichever is earlier. This term is clearly mentioned on the allotment letter at Sr No. 14. Copy of the letter is Ex C-2. It is admitted by OPs that complainant deposited 25% of price of plot alongwith penal interest with Opposite Parties and there was a contract between complainant and OPs. Therefore, in these circumstances, the Opposite Parties can not deny their liability to deliver possession of plot within time. Action of OPs in not refunding the money deposited by complainant with OP amounts to deficiency in service and trade mal practice on their part. The complainant further proved that as per Revenue Record, the land in question is not in ownership of Opposite Parties. To prove this fact he has relied upon documents Ex C-7 and C-14 that are the copies of jamabandies from which it is easily transpired that land in question does not come under the proprietorship and possession of OPs. In these circumstances when land in question is not free from encumbrances and OP have no proprietorship over said land, therefore, complainant is entitled to get refund of the money deposited by him towards sale consideration of plot alongwith interest and compensation. He has put reliance on citation 2012 (2) CPC524 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.
10 It is further argued that the price of land in dispute is Rs.27,00,000/-and complainant has made payment of Rs.7,62,650/-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.
11 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 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-7 and C-14, it is clear that land in question does not belong to complainant and OP hold no document of title for that place and therefore, action of OPs, amounts to deficiency in service and trade mal practice. 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.7,62,650/- the amount deposited by complainant with them as price of the plot alongwith interest at the rate of 9 % per anum from the date of its payment by complainant to them till its final realization. OPs are further directed to pay Rs.10,000/-as compensation on account of harassment and mental agony suffered by him and Rs 5,000/-as litigation expenses. The OPs are directed to comply with the order within a month from the date of receipt of the copy of the order, failing which complainant can 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: 15.01.2019
Member President
(Param Pal Kaur) (Ajit Aggarwal)
