Punjab

Faridkot

CC/17/73

Sanjeev Kumar - Complainant(s)

Versus

PUDA - Opp.Party(s)

Gurpreet Singh Chauhan

04 Sep 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :       73

Date of Institution:   9.03.2017

Date of Decision :    4.09.2017

Sanjeev Kumar aged 40 years son of Gurdial Chand r/o VPO Sadiq, Tehsil and District Faridkot. Mobile No.98149-72814.

                                               .......Complainant

Versus

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

  ....OP

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh Ajit Aggarwal, President,

Sh P Singla, Member.

 

Present:      Sh G S Chauhan, 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.2,25,000/-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 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 250 sq yards in general category and paid Rs.2,25,000/-as earnest money. As per scheme of OPs, the colony was to be developed within 2 years 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. Draw of lots held and complainant was declared as successful bidder and letter of intent dated 20.12.2013 was issued to complainant. On receiving the same, complainant approached OP and requested them to show the document of Title in favour of PUDA, but they keep putting off the matter on one pretext or the other. It is submitted that land in question is already attached by Court of Ld Addl District Judge, Faridkot in favour of farmers. OP is fully aware that land in question is not free from incumbrances and despite this, OP forfeited the earnest money deposited by complainant on the ground that complainant failed to deposit the remaining amount of land in question, but as complainant was not sure about the ownership of Op on land in question, therefore, he did not deposit the remaining amount. Instead of returning the principal amount of complainant with interest, OP forfeited the amount of complainant vide letter dated 31.03.2014, which is quite illegal and unlawful. Complainant made many requests to OP to refund the remaining amount with interest, but they did not pay any heed to listen to his requests. 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 20.03.2017, 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 complaint filed by complainant is time barred as plot in question was allotted to complainant vide letter of intent dated 20.12.2013 and he was asked to deposit 15 % of total price of land to them. Complainant filed the application dated 13.02.2014 before Estate Officer, PUDA requesting them to refund the earnest money deposited by him and vide order dated 31.03.2014, OP ordered the cancellation of allotment and ordered for forfeiture of Rs.2,25,000/- and therefore,  as per terms and conditions of brochure and letter of intent, they forfeited the amount of Rs.2,25,000/-i.e sale consideration deposited by complainant and same was duly informed to complainant, but complainant alongwith four other persons, preferred a complaint, which was dismissed by the order dated 20.01.2015 passed by this Forum and thus, present complaint filed by complaint is time barred and is liable to be dismissed. Moreover, 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 complainant has concealed the material facts from this Forum that complaint on similar cause of action has already been dismissed by this Forum. 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 250 square yards was allotted to complainant and he deposited Rs.2,25,000/-towards the price of the plot to them as earnest money as alleged, but they refused that they ever assured him to deliver the possession of the plot within two years 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-4 and then, closed the evidence.

6                                        In order to rebut the evidence of the complainant, ld Counsel for OPs tendered in evidence affidavit of Anmol Singh, Estate Officer, PUDA as Ex OP-1, documents Ex OP-2 to OP-3 and then, closed the evidence.

7                                       Ld Counsel for complainant has argued that OPs, alleging themselves to be absolute owners of land, 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 250 sq yards in general category and paid Rs.2,25,000/-as earnest money. As per scheme of OPs, the colony was to be developed within 2 years 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. Draw of lots held and complainant was declared as successful bidder and letter of intent dated 20.12.2013 was issued to complainant. On receiving the same, complainant approached OP and requested them to show the document of Title in favour of PUDA, but they keep putting off the matter on one pretext or the other. It is submitted that land in question is already attached by Court of Ld Addl District Judge, Faridkot in favour of farmers. OP is fully aware that land in question is not free from incumbrances and despite this, OP forfeited the earnest money deposited by complainant on the ground that complainant failed to deposit the remaining amount of land in question, but as complainant was not sure about the ownership of Op on land in question, therefore, he did not deposit the remaining amount. Complainant made many requests to OP to refund the earnest money with interest, but they did not hear his requests and instead of refunding his earnest money, OP forfeited the entire earnest money illegally vide letter dt 31.03.2014, which amounts to deficiency in service. He has prayed for accepting the present complaint alongwith main relief and compensation and stressed on documents Ex C-1 to 4.

8                                     Ld Counsel for OPs argued that all the allegations leveled by complainant on OPs are wrong and incorrect and there is no deficiency in service on the part of OPs. It is averred that complaint filed by complainant is hopelessly time barred as plot in question was allotted to complainant vide letter of intent dated 20.12.2013 and he was asked to deposit 15 % of total price of land to them. Complainant filed the application dated 13.02.2014 before Estate Officer, PUDA requesting them to refund the earnest money deposited by him and vide order dated 31.03.2014, OP ordered to forfeit the earnest money and therefore, as per terms and conditions of brochure and letter of intent, they forfeited the amount of Rs.2,25,000/-i.e total sale consideration deposited by complainant and same was duly informed to complainant, but complainant alongwith four other persons, preferred a complaint, which was dismissed by the order dated 20.01.2015 passed by this Forum and thus, present complaint filed by complaint is time barred and is liable to be dismissed. Moreover, 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 complainant has concealed the material facts from this Forum that complaint on similar cause of action has already been dismissed by this Forum. 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 250 square yards was allotted to complainant and he deposited Rs.2,25,000/-towards the price of the plot to them as earnest money as alleged, but they refused the other allegations. 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.

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. The OPs duly issued a letter of intent to him and as per demand of OPs, he deposited Rs.2,25,000/-as  Earnest Money. As per 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 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. Complainant did not pay the remaining amount of total sale consideration as he has doubt over the proprietorship of OPs and despite repeated requests by complainant, OP failed to show him the document of title in favour of PUDA and OP wrongly forfeited the earnest money deposited by complainant vide order dated 31.03.2014, which amounts to deficiency in service. In their reply, OPs admitted that they launched a scheme for development of colony and a plot of 250 square yards was allotted to complainant and complainant deposited Rs.2,25,000/- 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 within two years after completion of development work at site or within 18 months from the date of issuance of letter of allotment, whichever is earlier. OP sternly denied that they are not the proprietor of said land in dispute.

11                                         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 Rs.2,25,000/- 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 forfeiting the earnest money deposited by complainant vide order dated 31.03.2014, amounts to deficiency in service and trade mal practice on their part. The complainant further argued 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-3 to C-4 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. Moreover, ld counsel for complainant brought before the Forum that vide order dt 20.01.2015 issued by this Forum, earlier complaint filed by complainant on this ground was not dismissed, rather it was withdrawn by complainant and order in question clearly states that complainant is on liberty to file it afresh on same cause of action. As land in question is not free from encumbrances, 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.

 12                                                      As complainant has made  payment to OPs in June, 2013 and letter of intent was issued on 20.12.2013 i.e more than two                                 years ago from the filing of complaint and thus, on the point of limitation, ld counsel for complainant has placed reliance on citation 2015 (3) Consumer Law Today, 16 titled as Satish Kumar Pandey & anr Vs M/s Unitech Ltd wherein our Hon’ble National Commission, New Delhi observed as Consumer Protection Act, 1986, Sections 2 (1) (g),  2 (1) (o) & 24 A - Housing Construction –Limitation – Delay in construction and possession by the builder – Plea of OP that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24 – A – Held - it is by now settled legal proposition that failure to deliver possession being a continuous wrong, it constitutes a recurrent cause of action and therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum-it is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24-A of the Consumer Protection Act would began to run-In that case the complaint has be to filed within two years from the date on which the seller refuses to deliver possession to the buyer.

13                                                         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. 

14                                                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-3 and  C-4, it is clear that land in question does not belong to OP and OP hold no document of title for that place and therefore, action of OPs in forfeiting the earnest money deposited by complainant vide order dated 31.03.2014, 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.2,25,000/- the amount deposited by complainant with them as earnest money 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: 4.09.2017

Member                President  

(P Singla)              (Ajit Aggarwal)