BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI

                                      Consumer Complaint No.170 of 2008

                                Date of Institution:          15.07.2008

                                                Date of decision:             23.06.2015

Smt. Madhu Garg W/o Sh. Tarsem Garg, H.No.125, Sector-4, Panchkula, Haryana through her husband Shri Tarsem Garg.

    ……..Complainant

                                        Versus

1. Estate officer, Punjab Urban Planning & Development Authority, MIG Flats, Sector-32, PUDA Complex, Samrala Road, Ludhiana   ( Punjab).
2. Chief Administrator, Punjab Urban Planning & Development Authority, Phase-X, SAS Nagar, Mohali (Punjab)

………. Opposite parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President

Shri Amrinder Singh, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Tarsem Gupta, husband and authorised representative of the complainant.

                Shri Balwinder Singh, cl. for the opposite parties.

ORDER

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act praying for issuance of following directions to opposite parties (hereinafter referred to as ‘opposite parties’) to:

1. Waive the entire adhoc penal interest and watch and ward charges amounting to Rs.7,70,105/- and arrange to refund the same.
2. Pay her compensation of Rs.2,00,000/- for not having provided her a partially finished house as promised.

3. to pay interest @ 24% per annum on the penal interest and watch and ward charges from the date of deposit.

4. To pay Rs.51,000/- as costs of litigation.

2.             The original complaint No.170 of 2008 was filed by the complainant at the District Forum, Ropar and the learned Forum vide its order dated 24.12.2008 has dismissed the complaint. Against the order of the District Forum, Ropar the complainant has filed an appeal No.1994 of 2009 before the Hon’ble State Commission.  The Hon’ble State Commission vide order dated 25.11.2014 remanded the matter to this Forum for deciding it on merits.  Since, all the proceedings were complete before the District Forum, Ropar, therefore, on the basis of those proceedings, we have decided to appreciate the evidence and decide the matter on merits.

3.           The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the OPs on the allegations that the OPs had invited applications for 219 HIG independent partially finished Duplex Houses at Samrala Road, Sector 40, Ludhiana. The complainant applied for allotment of the house in the said scheme after depositing Rs.91,000/- on 29.9.1997. In the draw of lots, the complainant was allotted House No.1138. The total price of the said house was Rs.8,92,000/-, out of which a sum of Rs. 91,000/- was already deposited as earnest money and Rs. 1,33,920/- was deposited on 18.6.1998 vide receipt No. 32, Book No. 1232 dated 22.6.1998. Further the OPs had reduced the price of the said HIG house by 10% i.e. approximately Rs.89,000/-. The complainant asked for the fresh revised schedule of EMI vide letters dated 14.12.1998, 10.4.1999, 26.4.1999 but no response. Complainant deposited another sum of Rs.1,50,000/- vide receipt No. 93, Book No. 1528 dated 5.5.1999 issued by the OPs. The complainant again requested the OPs vide letters dated 2.5.1999, 7.2.2000, 23.3.2000, 11.5.2000, 22.6.2002, 18.10.2002 to furnish the details of the full account of the arrears after reduction in the price of the house. Then the OPs asked the complainant to take the possession of the house in question. The complainant asked for extension, which was granted upto 2.2.2003. When the complainant was asked to take possession, the house had only the walls and roof, nothing else, whereas in the brochure it was advertised and promised partially finished house. Then the OPs issued a show cause notice that in case the possession of the house is not taken or the balance is not deposited to which the complainant filed reply within 15 days. However, a false statement was given that houses have been constructed as per the policy of the OPs. However, the OPs passed cyclostyled order without considering the reply given by the complainant and ordered the forfeiture of the house and structure alongwith 10% of the total consideration amount. The complainant filed appeal against the said order before OP No. 2 in which it was submitted that she is ready to take the possession and in case partially finished house is given as promised, but the Addl. Chief Administrator without considering the arguments of the complainant dismissed the appeal. Then the complainant filed the writ petition before the Hon’ble Punjab and Haryana High Court and the Hon’ble Division Bench of the High Court vide its order dated 11.7.2006 directed that a sum of Rs. 10 lacs be paid by the applicant in order to show her bonafide. The complainant, accordingly, deposited with PUDA a sum of Rs. 10 lacs vide receipt No. 66, Book No. 692 dated 20.7.2006 issued by the OPs to prove her bonafide. However, on 8.8.2006, the Hon’ble High Court was pleased to give the relief of the resumption order to be treated as non-est upon applicant depositing the entire outstanding dues of Rs.4,18,593/- as demanded by Estate Officer, PUDA, Ludhiana. The Hon’ble High Court further directed that on deposit of the aforesaid amount, the actual physical possession of the property in question shall be handed over to the petitioner/complainant. It was further observed that the complainant will be at liberty to seek any further relief including the refund of excess amount in accordance with law before appropriate Civil Court. The complainant preferred the revision petition before the Hon’ble High Court and the said revision petition was also disposed off vide its order dated 16.10.2006. The complainant deposited a sum of Rs.4,18,593/- vide receipt no. 77, book No. 692 dated 9.11.2006 issued by the OPs and accordingly, the complainant was handed over the possession of the house in question by OP No. 1 on 27.12.2006. The complainant vide letter dated 18.5.2007 raised two issues with the OPs that refund of the excess amount and rescheduling the same on account of non-furnishing the partially finished house as promised. Vide another letter dated 26.2.2008 and 4.4.2008, the complainant again requested the OPs to intimate the revised cost of the property after taking into account revised schedule of payment by reducing the cost of the property, date wise details of amount deposited by the complainant, calculation of penal interest charged alongwith rate and the period for which it was charged and calculation of watch and ward charges alongwith rate and the rate for which it was charged. Reply to that, the OPs vide its letter dated 14.5.2008 advised the complainant that the cost of the house in question was reduced from Rs. 8,92,800/- to Rs. 8,12,600/- and furnished the revised schedule of payment as under:-

4.      Therefore, the total cost worked out was Rs.10,25,908/- without taking into account the penal interest whereas the complainant had paid to the OPs a sum of Rs.17,96,013/-. Despite repeated request the OPs did not furnish the revised schedule of payment based on reduced cost of the house and imposed penal charges of Rs.7,20,005/-, the calculation of which has not been furnished. The OPs failed to provide partially finished house whereas on the contrary imposed watch and ward charges of Rs. 50,100/-. The complainant has been issued a legal notice dated 28.5.2008 for refund of the excess amount and also demanded a compensation of Rs. 2 lacs for failure on the part of the OPs to provide a partially finished house. Hence, the complaint with a direction to the OPs to award the penal interest of Rs. 7,70,105/-, pay compensation of Rs. 2 lacs, pay interest @ 24% p.a. on the excess amount charged of Rs. 7,70,105/- from the date of payment and Rs. 51,000/- towards litigation costs.

5.             After admission of the complaint by the District Forum, Ropar, the notice was sent to the OPs.  The complaint was contested by the OPs, who filed reply taking preliminary objections that the complaint was not maintainable as the complainant had unnecessarily dragged OP No. 2 in this case; the Forum did not have any jurisdiction to hear the complaint as the PUDA has been substituted through gazette notification of December, 2006 as the new authority with the name and style of Grater Ludhiana Area Development Authority was constituted with its office at Ludhiana and Head Office at Mohali; no cause of action had accrued to the complainant to file the complaint; complainant had not approached the Forum with clean hands; the complaint was false, frivolous and vexatious to the knowledge of the complainant, therefore, it is liable to be dismissed under Section 26 of the Act; complaint was barred by principle of res-judicata; complaint was barred by limitation under Order 2, Rule 2 of CPC; complaint of the complainant does not fall within the pecuniary jurisdiction of the Hon’ble Forum; the complaint requires a comparatively lengthy proceedings whereas the Act provides only the summary proceedings, therefore, the matter be relegated to the Civil Court and so was the order of the Hon’ble High Court; the principal of caveat emptor is applicable and that the complainant had no locus standi to file the complaint. On merits, it was stated that initial sale price of the flat was fixed as Rs. 9,10,200/- by OP No. 1 in the advertisement, which was firstly reduced to Rs. 8,92,800/- and then to Rs. 8,12,600/-. It was in the knowledge of the complainant that every information and detail was available in their office. The complainant was delivered the partial finished house as well as to the other allottees as promised in the advertisement and moreover, 10% price was also reduced. The complainant before taking the possession could inspect the house and could surrender the same as per terms and conditions of the Authority, if it was not to his expectations. The appeal was filed by the complainant before Addl. Chief Administrator, Ludhiana, which was disposed of in accordance with law. Further the Hon’ble high Court of Punjab & Haryana has given the liberty to the complainant that he is entitled to raise the point in accordance with law before the appropriate Civil Court. It was denied that a sum of Rs. 50,100/- illegally charged as watch and ward charges were claimed as per the policy of the OPs. The amount is claimed as the complainant had failed to take the possession. Therefore, it was submitted that the complaint is without merit and it be dismissed.

6.       In support of her allegations, the complainant had tendered into evidence affidavit of Tarsem Garg Ex. C-1, PUDA Brochure Ex. C-2, copy of allotment letter Ex. C-3, photographs Ex. C-4, letter of Op dt. 4.3.04 Ex. C-5, letter of Madhu Garg dt. 23.3.04 Ex. C-6, order dt. 4.5.05 Ex. C-7, copy of appeal Ex. C-8, order dt. 31.1.06 Ex. C-9, order of Hon’ble High Court Ex. C-10, review petition Ex. C-11, advertisement Ex. C-13, legal notice Ex. C-14.

7.          To rebut the evidence of the complainant, the OPs tendered into evidence affidavit of Jit Ram, E.O. Ex. RW-1/A, affidavit of Er. Ravinder Pandey, B.E. (Civil) Ex. RW-2/A, notification dt. 21.12.06 Ex. R-1, advertisement Ex. R-2, scheme details Ex. R-3/1 & 2, terms and conditions of allotment Ex. R-4, details of amount Ex. R-5.

8.       We have heard the authorised representative of the complainant and counsel for the OPs and gone through the written arguments submitted by them.

9.          The grievance of the complainant is that after lowering of the price by the OPs, the excess amount has not been refunded. Revised schedule has not been given, details of the interest amount has not been given and further the complainant was promised partially finished HIG house for which he has to pay the watch and ward charges whereas actually a skeleton of walls and slabs surrounded by high grown grass in an abandoned condition has been handed over to her.   Therefore, the dispute between the parties has arisen regarding the excess amount charged by the OPs and no refund has been granted to her. No revised schedule after decrease of the price has been issued in her favour and also the Ops did not furnish the details of penal interest statement and further she has been provided skeleton house against the partially finished house. Therefore, the act of the OPs amounts to deficiency in service on their part.

10.           The facts are more or less admitted. It is admitted that the Ops have allotted HIG Independent partially finished duplex house at Samrala Road, Sector 40, Ludhiana to the complainant vide allotment letter dated 31.03.1998 Ex.C-3. It is admitted that the total price of the said house was Rs.8,92,000/- out of which the complainant paid Rs.91,000/- alongwith the application on  29.09.1997 as earnest money and Rs.1,33,920/- on 18.06.1999 as a residuary amount.  Thereafter, the OPs of their own volition have reduced the price of the flat approximately by 10% and, therefore, instead of paying the balance amount as per schedule of instalments shown in the allotment letter, the complainant sought a clarification from the OPs for fresh revised schedule of payment vide letter dated 14.12.1998 following by various reminders and the said letters remained unanswered in the hands of the OPs. Thereafter, the complainant of his own volition deposited Rs.1,50,000/- on 01.05.1999 and requested for details of the full account which was never provided to her despite having issued various registered letters from 02.05.1999 to 18.10.2002.  Since the complainant was awaiting revised schedule of payment upon decrease of prices and instead of giving any response to the complainant from 14.12.1998 to October, 2002 the OPs offered the possession to the complainant and on the request of the complainant the OPs have postponed the delivery of possession of the house till 02.02.2003. Since the complainant has neither paid the balance amount nor took over the possession as per agreed extended date, therefore, vide Ex.C-5 dated 04.03.2004 issued a show cause notice as to why the allotment in favour of the complainant be not cancelled. Since Ex.C-5 is coming by way of evidence from the side of the complainant, it shows that she was in receipt of the said document. A perusal of Ex.C-5 shows that the Ops have given a reference of some letter dated 24.12.2003 wherein the complainant was directed to deposit the remaining amount of the house. The whole controversy in the present complaint has started from non receipt of such letter No.21145 dated 24.12.2003 issued by the Ops and not received by the complainant. Had the complainant received this letter, she would have acted and made the payment as she was awaiting response to her previous letters from 14.12.1998 to 18.10.2002 wherein she was raising the issue of seeking details of the revised payment schedule.

11.           We have called for the original record pertaining to the case file of the OPs and perused that the Ops have received all the letters referred to above from the complainant and they have also been dealt with by the OPs but no response has been issued to the complainant as no dispatch register from 14.12.1998 to 18.10.2002 maintained by the Ops has been shown. As stated above, the complainant has admitted having received Ex.C-5 i.e. letter No.21144 dated 04.03.2004 sent by the Ops vide registered post. The perusal of the said letter again does not show the exact amount recoverable from the complainant as the contents of the letter show only regarding a show cause notice for deposit of the amount.  The basic controversy in the present complaint i.e. demand of revised payment schedule has still not been addressed by the OPs vide Ex.C-5.  The subsequent acts of the OPs after the issuance of letter Ex.C-5 dated 04.03.2004 i.e. resumption of the plot of the complainant due to default of non payment of the outstanding amount have already been taken care by the orders of the Hon’ble Punjab and Haryana High Court. In the CWP No. 10147 of 2006 wherein for the first time the OPs have given the complete statement of account of recoverable amount as per reduced revised rate of the initial cost of the flat and interest and penal interest charged thereupon due to default in payment of the said amount by the complainant. The complainant  has made the payment as per orders of Hon’ble High Court and the Hon’ble High Court has granted the liberty to her to raise any issue regarding deficiency in service or other claim before the appropriate civil court.  

12.           Therefore, the complainant has filed the present complaint to  waive the entire adhoc penal interest and watch and ward charges amounting to Rs.7,70,105/- being illegally calculated by the OPs at the time of submission of statement of account before the Hon’ble High Court and paid by the complainant.  The complainant further prayed for refund of the said deposited amount alongwith interest @ 24% from the date of deposit till realisation besides compensation and litigation costs.

13.           Now the question for determination is whether the OPs have illegally calculated the penal interest and watch and ward charges amounting to Rs.7,70,105/-. In order to resolve the issue, it will be pertinent to go back to the original allotment letter Ex.C-3  where the price of the flat has been shown as Rs.8,92,800/-  out of which the complainant has admittedly paid Rs.91,000/- and Rs.1,33,920/-. As per the allotment letter the first instalment of the balance payment was due in April, 1999 and the amount of the first instalment was Rs.2,22,626/- plus interest Rs.1,13,541/- total being Rs.3,61,167/-. Before the said instalment was paid by the complainant, it is admitted position between the parties that the OPs have reduced the price of the flat but the reduced price was never disclosed to the complainant as the complainant vide various letters starting from 14.12.1998 to 18.10.2002 has been making requests to the OPs to issue fresh revised payment schedule after reduction of the price. Again it is admitted fact that the complainant for the first time learnt about the details of the reduced price and the revised payment schedule from the OPs for the first time when they have on 14.05.2008 given reply to the legal notice issued by the complainant which has been attached with the written arguments of the complainant filed before the District Forum, Ropar. Therefore, as per the reduced price and revised schedule of payment, the total cost of the flat was Rs.8,12,600/- and the payment was to be made in instalments upto 05.02.2002 with interest comes to Rs.10,25,908/-. Since the complainant has not made the balance payment at the reduced price and as per revised payment schedule the total amount recoverable against the price of the plot as on 05/2002 was Rs.10,25,908/- Since the complainant has not made this payment, therefore, the OPs have charged additional penal interest of Rs.7,20,005/- and watch and ward charges of Rs.50,100/- in the statement of account for the first time issued to the complainant on 14.05.2008. The receipt of reply to the legal notice is not disputed by the complainant. Thus, it is ample clear that the complainant was not having any knowledge from 14.12.1998 to 14.05.2008 about the reduced price and the revised payment schedule. It seems that the OPs have taken 10 long years to answer a simple query of the complainant raised by her for the first time on 14.12.1998. Therefore, in the absence of any knowledge in the hands of the complainant and for no fault of the complainant, the OPs are not entitled to levy the penal interest on the amount due as on 05/2002 as shown in the calculation sheet dated 14.05.2008. The charging of the penal interest of Rs.7,20,005/- at the back of the complainant without giving her any prior information of the reduced rate and the revised payment schedule is an act of deficiency in service and unfair trade practice on the part of the OPs.

14.           The next question is whether the complainant can be burdened with payment of watch and ward charges of Rs.50,100/- as levied by the OPs in the calculation sheet dated 14.05.2008.  In this regard, it will be appropriate to look into the contents of Ex.C-2 i.e. the advertisement floated by the OPs inviting applications for independent HIG partially finished duplex houses. The complainant has applied under 219 HIG Independent partially finished duplex houses in Sector 40, Samrala Road, Ludhiana. The watch and ward charges leviable to the complainant are governed by clause-12 of the allotment letter Ex.C-3 which is reproduced here below:

“After making payment as per schedule of para No.2 of the allotment letter, yo shall take possession of the house within 3 months from the issue of allotment letter, failing which the allotment shall stand cancelled and amount not exceeding 10% of the total consideration money shall be forfeited.  The allotment thus cancelled may be revoked by Chief Administrator or any officer authorised by him on your written request subject to the conditions that;

a)     the request is received within thirty days from the date of cancellation.

b)     The payment of watch and ward charges and other penal charges as decided by the authority from time to time is made.”

15.           The perusal of above clause shows that the watch and ward charges are leviable in case the complainant fails to make the payments as per schedule, fails to take the possession of the house within 3 months from the date of issuance of allotment, her allotment is cancelled, 10% of the consideration money is forfeited and the cancelled allotment can be revoked by the Chief Administrator or other authority in case the request against the cancellation is received by the OPs within thirty days from the date of cancellation.  In order to appreciate the fact that the amount of Rs.50,100/- shown against the head  watch and ward in the statement of accounts dated 14.05.2008 is leviable due to the acts of omission of the complainant or otherwise.  The issue of payment of the remaining amount as per revised schedule after reduction in price of the flat i.e. from April, 1999 onwards has remained unanswered in the hands of the OPs from 14.12.1998 till 14.05.2008. Even the resumption of the flat during the said period by the OPs has been set aside by the Hon’ble Punjab and Haryana High Court. Therefore, the watch and ward charges levied by the OPs in the absence of any acts of omission specifically shown on the part of the complainant, is an act of deficiency in service and unfair trade practice on the part of the OPs.  The said charges are not leviable as the complainant has not deliberately omitted to make the payment of the instalments due and the resumption order due to non payment of the amount is also not attributable to the acts of the complainant.  The whole exercise of charging of penal interest, watch and ward and issuance of resumption order due to non payment has been done by the OPs at the back of the complainant violating the principles of natural justice. The arbitrary act of the Ops is an act of deficiency in service. The complaint therefore, deserves to be allowed and the complainant deserves to be compensated.

16.           In view of above discussion, the complaint is allowed with the following directions to the OPs to:

(a)    refund to the complainant the penal interest charges of Rs.7,20,005/- (Rs. Seven lacs twenty thousand and five only) with interest thereon @ 12% per annum from the date of receipt till actual payment.

(b)    refund to the complainant watch and ward charges of Rs.50,100/- (Rs. Fifty thousand one hundred only) with interest thereon @ 12% per annum from the date of receipt till actual payment.

(c)    pay to the complainant lump sum compensation of Rs.1,00,000/- (Rs. One lac only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

June 23, 2015. 

                                                                     (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh)

Member

(Mrs. R.K. Aulakh)

Member