Present complaint under Section 12 of the Consumer Protection Act 1986 as amended upto date has been filed by complainant Jarnail Singh against Punjab Urban Development Authority SCO No.41, opposite D.A.C. Laddowali Road, Jalandhar, through its Estate Officer, Jalandhar.<br /> Brief facts rising the present complaint lie in a narrow compass. It is stated that th opposite party floated a residential scheme near Sainik School, Kapurthala in which allotment of plots were made by way of auction held on 16.1.2001. It is averred that the complainant remained successful in giving highest bid against plot No. 55 measuring 150 sq. yards for a total sale price of <br /> -2-<br /> Rs.6,37,500/- which was duly accepted by the opposite party. Letter of allotment dated 17.7.2001was issued admitting therein that a sum of Rs.1,59,375/- have already stand deposited by complainant being 25% of the total cost of the plot, while remaining amount of Rs.4,78,125/- was allowed to be deposited by way of installments It is alleged that since the opposite party was not in possession of the area where the proposed residential estate was to be set up and as such, the opposite party was not in a position to deliver the possession of the plot allotted to the complainant in auction. Complainant has been approaching the officials of the opposite party with a request to give the status of scheme but they explained that some litigation is pending regarding the estate area and as such, the scheme has come to an end. Therefore, the complainant did not deposit the remaining instalments as the scheme was no more operative and the opposite party was not in a position to transfer the plot to the complainant. Apparently, there was deficiency in service on the part of the opposite party for which he is entitled to there fund of the amount deposited alongwith interest at the rate of 15% per annum alongwith the compensation and costs of litigation.<br /> 2. The opposite party appeared and controverted the allegations. Preliminary objections have been raised that the complaint is not maintainable and that the Forum has no jurisdiction to entertain and decide the complaint as per clause 25 of the allotment letter and that the complaint is time barred; complaint is also bad for non-joinder of necessary party. On merits, it is denied that opposite party was not in possession of the area of residential estate or that it was not in a position to deliver the possession of the plot to the complainant in open auction. It is pleaded that complainant never approached the opposite party or its officials for taking possession of the plot before the service of the legal notice dated 13.7.2006. It is also submitted that as per Schedule of the allotment, the complainant was required to make balance payment of balance amount of installment as per the clause 4 of <br /> -3-<br /> the allotment letter and was to make the full payment upto16.7.2004. He made payment of only 25% of the amount out of the total sale price of Rs.6,37,500/-but he failed to pay the balance amount in installments as per Clause 4 of the Allotment letter till date till date. Therefore, notice under the Provision of the Act for the recovery of the amount was issued to him. The complainant instead of replying the notice or making the payment of the balance amount. Filed the present complaint.. Therefore, the opposite party is entitled to not only forfeiture of the 25% of the amount deposited, but also to resumption of the plot as per clause 5 of the allotment letter. in exercise of the power under the provision of Section 45(3) of the PUDA Act. The complainant is not entitled to the refund of any amount as there was no deficiency in service on its part.<br /> 3. The counsel for the complainant has tendered into evidence affidavit of the complainant as Ex/C1, notice date 13.7.2006 Ex.C2, reply to the notice dated 1.9.2006Ex.C3, allotment letter dated 17.7.2001 Ex.C4, receipts dated 16.12001 and 15.2.2001 Ex.C5 and Ex.C6 and closed the evidence.<br /> 4 On the other hand the counsel for the opposite party tendered into evidence only one affidavit as Ex.O1 and closed the evidence.<br /> 5. We have heard arguments of learned counsel for the parties and also perused the written arguments filed by the opposite party. Learned counsel for the complainant has vehemently urged before us that failure of the opposite party i..e. PUDA to deliver the possession of plot No.55 measuring 150 sq. on payment of balance amount of instalments by him on account of dissolution of the residential scheme of the residential Estate Kapurthala amounts to deficiency in service on the part of opposite party for which he is entitled to not only the refund of earnest amount of Rs..1,59,375/- being 25% of the total costof the plot with interest @ 12% from the date of deposit but also monetary compensation for mental tension and physical harassment alongwith cost of litigation. On the other <br /> -4- <br /> hand it has been counter argued by learned counsel for the opposite party that this Forum has no jurisdiction to entertain, try and decide the complaint as per arbitration clause 25 of the allotment letter. He has further urged that complaint is time barred. He also contended that complainant himself dismally failed to pay the balance amount of instalments on the scheduled dates as per terms and conditions of the allotment letter Ex.C4 dated 17.7.2001 thereby entitling the opposite party PUDA to forfeit 25% amount of the total cost of the plot deposited by him and also resumption of the plot under the provisions of Section 45 clause (3) of the PUDA. Thus there is no question of any deficiency in service on the part of opposite party.<br /> 6. We have considered rival contentions of learned counsel for the parties. These broad facts are not disputed that plot No.55 measuring 150 sq.yards for total sale price of Rs.6,37,500/- on initial payment of 25% i.e. Rs.1,59,375/- vide receipts Ex.C5 and C6 was allotted to the complainant vide allotment letter Ex.C4 dated 17.7.2001 containing terms and conditions. The grievance of the complainant is that opposite party was not in position to deliver possession of the plot on account of dissolution of residential scheme and also pendency of litigation vide his affidavit Ex.C1. However these allegations have been controverted by the opposite party on the ground that complainant himself failed to take possession of the plot and to deposit the balance amount of the instalments as per scheduled dates. Harbir Singh Estate Officer PUDA has clearly deposed to this effect that complainant never approached opposite party to ventilate any such grievance orally or in writing for not delivering the possession of the plot in question to him nor residential scheme covering the plot in question was ever dissolved or that plot in question was subject matter of any litigation. Complainant has failed to produce any evidence to prove that PUDA was not in position to deliver possession of the plot to him. Therefore, it appears that <br /> -5-<br /> complainant might have faced some financial stringencies to pay the balance amount of the instalments as per scheduled dates under the terms and conditions of the allotment letter Ex.C4 dated 17.7.2001.<br /> 7. Now adverting to the terms and conditions of the allotment letter Ex.C4, condition No.8 interalia provides that :<br /> “ In case any instalment is not paid by the allottee by the due<br /> Date mentioned in clause 5 of the allotment letter then <br /> without prejudice to any action under section 45 of the<br /> Punjab Regional & Town Planning & Development Act, <br /> 1995, he shall be liable to pay interest on the instalment so <br /> Due to one and half percent per mensum for the period<br /> Of default not exceeding one year and thereafter @ 2%<br /> Per mensum till the date, Instalment so due is actually paid <br /> Or till the date, action is initiated under Section 45 of the <br /> said Act, whichever date is earlier..<br /> Condition No.9 further stipulates that he shall be required to take possession of the plot from the Estate Officer PUDA Jalandhar within 90 days fo the date of issue of allotment letter.. Condition No.10 further depicts that he shall have to complete the building within 3 years from the date of issue of this letter and after getting the plans of the proposed building approved from the Estate Officer. Clause (5) of the allotment letter entitles PUDA to forfeit 10% of the earnest money deposited if communication about acceptance of the plot is not sent within 30 days and forfeiture of 15% of the earnest money within 15 days of the issue of the allotment letter. In case of refusal/acceptance is not received within 60 days of the allotment letter action would be taken under section 45 clause (3) of the PUDA Act. The perusal of sub clause(3) of Section 45 of the Act ibid clearly provides that if transferee fails to pay the amount due together with the <br /> -6-<br /> penalty in accordance with the order made under Section (2) or commit breach of any condition of transfer, the Estate Officer is empowered by notice in writing upon the transferee to show cause within period of 30 days as to why an order of resumption of land or building or both as the case may be and forfeiture of whole or any part of the money 10% of the consideration of the amount interest and other dues payable in respect of transfer of the land or building or both should not be made . Sub section (4) enjoins the duty on the Estate Officer<br /> to pass speaking order regarding resumption of the land or building and forfeiture of whole or any part of the money paid in respect of any such transfer . In the instant case no evidence, whatsoever, except affidavit of Estate Officer Ex.O1 has been adduced in evidence to prove meticulous compliance with the provisions of the Section 45 of the Act ibid requiring service of the notice upon defaulter/allottee or any impunged order passed by the Estate Officer under section (3) and (4) of the Act ibid. There is only one reply Ex.C3 dated 1/9/06 and notice Ex.C2 of 13/7/06 served by the complainant wherein there is reference of notice under the provision of the Act for the recovery of over due amount of the instalment but no such document has seen the light of the day. Therefore, we hold that PUDA can at the best forfeit of the earnest money of 25% of total cost of the plot and not beyond that on the default committed by the complainant for payment of the balance amount of instalment as per scheduled dates.<br /> 8.Complaint cannot be hold to be time barred because cause of action has arisen to the complainant about repudiation of claim on receipt of reply of the notice dated 1/9/06 of the PUDA. There is also no merit in the contention of learned counsel for opposite party to oust the jurisdiction of this Forum to try this complaint on the mere basis of arbitration clause 25 of the allotment letter because <br /> -7-<br /> 9.Section 3 of the Consumer Protection Act 1986 clearly provides thprovisions of this Act shall be in addition to and not in derogation of any other law for the time being in force.<br /> 10. In the ultimate analysis of aforesaid<br /> discussionwe partly accept this complaint and order the opposite party to refund the earnest money of Rs.1,59,375/- after deduction of 10% with no order as to cost. The above direction be complied with by the opposite party within a period of one month from the receipt of copy of this order.<br /> Let certified copies of judgment rendered be supplied/dispatched to the parties without any unnecessary delay and thereafter file be consigned to record room.<br /> <br /> Announced (Sushma Handoo ) (Sudha Sharma) (A.K.Sharma )<br /> 3/4/2007 Member Member President.