Punjab

Faridkot

CC/20/8

Vaishali Rai - Complainant(s)

Versus

PUDA - Opp.Party(s)

Vipan Kumar Tayal

30 May 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, FARIDKOT

C.C. No. :                08 of 2020

Date of Institution:    08.01.2020

Date of Decision :     30.05.2022

 

Vaishali Rai d/o Ravinder Kumar Rai r/o G-22 Uppal Marbel Arch, Manimajra U.T. Chandigarh through her father Ravinder Kumar who is General Power of Attorney.

                                               .......Complainant

Versus

Punjab Urban Planning and Development Authority, Bathinda through its Estate Officer, PUDA Complex, Bhaggu Road, Bathinda Tehsil and District Bathinda.

                     .......Opposite Party

Complaint under Section 12 of the

Consumer Protection Act, 1986.

(Now, Section 35 of the Consumer Protection Act, 2019)

 

Quorum:     Kanwar Sandeep Singh, President,

                     Smt Param Pal Kaur, Member.

                     Sh Vishav Kant Garg, Member.

 

Present:      Sh Vipan Tayal, Ld Counsel for complainant,    

                  Sh Vinod Monga, Ld Counsel for OP.

 

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(ORDER) 

(Kanwar Sandeep Singh, President)

                                                Complainant Vaishali Rai through power of attorney Ravinder Kumar (hereinafter referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (hereinafter referred as ‘Act’ before this Commission against Punjab Urban Planning and Development Authority, Bathinda (hereinafter referred as Opposite party.

2                                     Briefly stated, the case of the complainants is that alleging themselves to be absolute owners of land, OP 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 200 sq yards in general category and paid Rs.1,80,000/-as earnest money. As per scheme of OP, 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 26.12.2013 was issued to

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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.

3                                               It is alleged 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.

  4                                              It is further alleged that 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 which amounts to deficiency in service and trade mal practice on the part of Ops and has caused great loss to him.

 5                                                On this backdrop of facts, the complainant has prayed for directions OP to refund the amount of Rs.1,80,000/- alongwith interest and has also prayed for directions to OP to pay compensation to the tune

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of Rs.1,00,000/- for harassment and mental agony suffered by him besides litigation expenses of Rs.20,000/-.

6                                            On receipt of notice, OPs appeared in Forum through Counsel and filed reply taking legal objections that complaint filed by complainant is hopelessly 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. Further averred that complainant has no locus standi to file the present complaint and complainant has failed to deliver back the possession of plot before filing the present complaint. He has restrained the possession of plot at first hand and on the other hand has demanded back the money deposited by him and thus, u/s 174 of PUDA Act, it is liable to be dismissed. He has not come to the Forum with clean hands and moreover, present complaint involves intricate question of law and facts that cannot be decided in the summary procedure of this Forum and is therefore, liable to be dismissed. However, on merits, OPs have denied all the allegations of OP being wrong and incorrect but it is admitted by OPs that they launched a scheme for development of colony at Sugar Mill Site and a plot of 200 square yards was

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allotted to complainant.  As per OP, development work at site was complete and  possession of said plot was delivered to complainant. Letter of intent dated 26.12.2013 was issued to complainant and she was asked to deposit 15% of total price of land to them, but she failed to deposit the same within stipulated period of 30  days from the date of issuance of letter of intent and due to this reason, as per terms and conditions of said letter, money deposited by complainant was forfeited by competent authority vide order dated 03.11.2015 and due to this, no allotment letter was ever written to complainant. Complainant herself committed default in making 15% payment in price of plot with prescribed period and after giving reasonable opportunity of being heard, answering OP cancelled the letter of intent vide office order no.6482 dated 03.11.2015 as per their terms and conditions. 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

 

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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.

7                                        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-10 and then, closed the evidence.

8                                        In order to rebut the evidence of the complainant, ld Counsel for OP tendered in evidence affidavit of Amrinder Singh Tiwana, Estate Officer, PUDA as Ex OP-1, and then, closed the evidence.

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 OP launched a scheme for development of residential colony at Sugar Mill site, Faridkot and complainant applied for a plot of 200 square yards. The OPs duly issued a letter of intent to him and as per demand of OPs, he deposited Rs.1,80,000/-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

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months from the date of issuance of allotment letter, whichever is earlier. The letter of intent was issued to him on 26.12.2013 and as per assurance of OP, 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 03.11.2015, which amounts to deficiency in service. In their reply, OP admitted that they launched a scheme for development of colony and a plot of 200 square yards was allotted to complainant and complainant deposited Rs.1,80,000/- 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.

 

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11                           Ld Counsel for complainant argued that as per conditions of said scheme, the possession of the plot was to 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 (Ex C-3) at Sr No. 14. It is admitted by OP that complainant deposited Rs.1,80,000/- with Opposite Party and there was a contract between complainant and OP. Therefore, in these circumstances, the Opposite Party cannot deny their liability to deliver possession of plot within time. Action of OP in forfeiting the earnest money deposited by complainant vide order dated 03.11.2015, 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 document that is copy of jamabandi (Ex C-10) from which it is easily transpired that land in question does not come under the proprietorship and possession of OP. 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

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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 5,10,700/-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                         Ld Counsel for complainant argued that as complainant has made payment to Opposite Party in June, 2013 and letter of intent was issued on 26.12.2013 and same was cancelled by OP vide letter dated 03.11.2015 i.e more than two years ago from the filing of complaint and thus, on the point of

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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.18,00,000/-and complainant has made payment of Rs.1,80,000/-and thus,

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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–Delay in 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                                          Ld Counsel for OP argued that OP is owner in possession of land and development works of scheme are completed since long. Ld counsel for OP further argued that complainant himself is at fault and he cannot take benefit of his own wrongs. Complainant failed to deposit the price of plot even in extended time period, hence as complainant had violated the

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terms and conditions of Allotment letter, so letter of intent issued to him was cancelled and earnest money deposited by him was forfeited. Complainant was not entitled to delivery of possession at all and OP forfeited earnest money deposited by complainant as per terms and conditions and complaint filed by complainant is liable to be dismissed.

15                       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-3, 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-10, it is clear that land in question does not belong to PUDA and OP hold no document of title for that place and therefore, action of OP in forfeiting the earnest money of Rs.1,80,000/- deposited by complainant vide order dated 03.11.2015, amounts to deficiency in service and trade mal practice. In these  circumstances, we  are  convinced  with  the  arguments  advanced  by ld counsel for  complainant and  case  law  produced  by  him. Complainant has fully succeeded in proving his

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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 partly allowed with directions to OP to refund of Rs.1,80,000/- the amount deposited by complainant with them as price of the plot alongwith interest at the rate of  8% per anum from the date of its payment by complainant to OP till its final realization. OP is further directed to pay Rs.10,000/-as compensation on account of harassment, mental agony suffered by him and for litigation expenses. The OP is hereby directed  to   comply   with   the  order  within   45 days  from  the  date  of  receipt  of  the  copy   of  the   order,  failing  which  complainant  can initiate  proceedings  under   section 71 and 72 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 Commission

Dated : 30.05.2022

 

(Vishav Kant Garg)     (Param Pal Kaur)   (Kanwar Sandeep Singh)           

 Member                      Member                President