Punjab

Faridkot

CC/16/116

Vishavdeep Singh - Complainant(s)

Versus

PUDA - Opp.Party(s)

Dildeep Singh

30 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :       116

Date of Institution:   2.05.2016

Date of Decision :    30.08.2016

Vishavdeep s/o Sh Prem Kumar, aged about 26 years r/o # C-49, Street No.5/3, New Cantt Road, Faridkot.

                                                                                   .......Complainant

Versus

1. Punjab Urban Planning and Development Authority, PUDA Complex,Bhagu Road, Bathinda.

2. The Chairman, PUDA Bathinda.

3. The Estate Officer, Punjab Urban Planning and Development Authority, PUDA Bathinda.

                                                                                                                ........OPs

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh Ajit Aggarwal, President,

   Sh P Singla, Member.

    

   Present:      Sh Dildeep Singh, Ld Counsel for complainant,    

                     Sh Vinod Monga, Ld Counsel for OPs.

                     

    (Ajit Aggarwal, President)

                                         Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OP to refund the amount of Rs.4,86,000/- alongwith interest and to pay Rs.5,00,000/- as compensation for mental agony and harassment and financial loss to complainant besides litigation expenses of Rs 10,000/-

   2                                               Briefly stated, the case of the complainant is that vide application worth Rs.500/-, complainant applied for a residential plot in the scheme of PUDA Enclave, Sugar Mill site, Kotkapura Road, Faridkot and also paid Rs.1,80,000/-as Earnest Money (10% of total amount) vide loan facility from State Bank of India and thereafter, OPs sent Letter of Intent (L.O.I.) dated 26.12.2013 for plot measuring 200 square yard with all terms and conditions and also agreed to give allotment of plot after deposit of 25% of total amount by complainant. On this complainant deposited 25% of total amount with Ops within prescribed period, but till date, OPs have not given possession of plot to complainant. Complainant paid total of Rs.4,86,000/-to OPs i.e Rs.1,80,000/- or 10% of amount of plot at the time of applying and 15% /3,06,000/-after Letter of Intent alongwith 2% including Rs.36,000/- for Cancer Relief Fund. OPs gave option of depositing remaining amount of Rs.13,14,000/-within 60 days of allotment of letter and also assured to give 5% rebate or to pay the remaining amount in 6 instalments as per rules. Complainant has abided by all the terms and conditions of contract, but till date OPs have not given any allotment to her. Complainant visited the site, but there is no development work. Complainant enquired from OPs about non development of work at site, but all in vain. Complainant also visited the office of Halqa Patwari to check the revenue record and there she came to know that Punjab Government has transferred the Intkal of said property in the name of Punjab Cooperative Department and complainant is no more the owner of said property. There is gross negligence on the part of OPs in not performing their duty properly. All this act and conduct of OPs amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and financial loss to complainant for which she is entitled for compensation and litigation expenses besides main relief. Hence, the  present complaint.

   3                                         The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 4.05.2016, 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 there is no deficiency in service on the part of answering Ops. On merits, Ops have denied all the allegations levelled by complainant being wrong and incorrect and asserted that complainant neither visited the office of Ops nor in the office of Halqa Patwari to the check the revenue record of OPs. 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. All the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with special costs.

5                                           Parties were given proper opportunities to prove their respective case. Ld Counsel for complainant tendered in evidence affidavit of complainant as Ex.C-1 and documents Ex C-2 to C-10 and then, closed the same on behalf of complainant.

6                                              In order to rebut the evidence of the complainant, ld Counsel for OPs tendered in evidence affidavit of Gurjant Singh as Ex OP-1 and then, closed the evidence.

7                                          Ld Counsel for complainant has argued that OPs launched a scheme for development of colony at Sugar Mill site, Faridkot and  complainant applied for a residential plot in the scheme of PUDA Enclave, Sugar Mill site, Kotkapura Road, Faridkot and paid Rs.1,80,000/-as Earnest Money vide loan facility from State Bank of India and thereafter, OPs sent Letter of Intent (L.O.I.) dated 26.12.2013 for plot measuring 200 square yard with all terms and conditions and also agreed to give allotment of plot after deposit of 25% of total amount by complainant. On this, complainant deposited 25% of total amount with Ops within prescribed period, but till date, OPs have not given possession of plot to complainant. Complainant paid total of Rs.4,86,000/-to OPs i.e Rs.1,80,000/- or 10% of amount of plot at the time of applying and 15% /3,06,000/-after Letter of Intent including 2% or Rs.36,000/- for Cancer Relief Fund. OPs gave option of depositing remaining amount of Rs.13,14,000/-within 60 days of allotment of letter and also assured to give 5% rebate or to pay the remaining amount in 6 instalments as per rules. Complainant has abided by all the terms and conditions of contract, but till date OPs have not given any allotment to her. Complainant visited the site, but no development work was in progress. Complainant enquired from OPs about non development of work at site, but all in vain. Complainant also visited the office of Halqa Patwari to check the revenue record and there she came to know that Punjab Government has transferred the Intkal of said property in the name of Punjab Cooperative Department and complainant is no more the owner of said property. It is further contended that by not starting construction work at site and by not delivering of the possession of plot in time by OPs, complainant has suffered great harassment and mental agony and financial loss. These acts of OPs amount to deficiency in service and trade mal practice on their part. They are misleading the consumers and got deposited heavy amount from them and are earning huge profit from that amount and they are not refunding the amount deposited by the consumers. Ld counsel for complainant has prayed that OPs may be directed to  refund the entire amount deposited by complainant towards the price of plot with interest alongwith compensation to complainant.

8                                             Ld Counsel for OPs argued that all the allegations levelled by complainant on OPs are wrong and incorrect and there is no deficiency in service on the part of OPs. It is averred that complainant neither visited the office of Ops nor in the office of Halqa Patwari to the check the revenue record of OPs. It is also denied that they are not the owners of property in dispute. It is further averred that 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. There is no deficiency in service and trade mal practice on the part of OPs and they have prayed for dismissal of present complaint.

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 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 alongwith application money of Rs.500/- and Rs.3,06,000/- as 15% of value of the plot including Rs.36,000/- as Cancer Relief Fund i.e total of Rs.4,86,000/-to the OPs. 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 26.12.2013 and as per assurance of OPs, the possession of plot was to be delivered to complainant atleast by 26.06.2015 i.e 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. In their reply, OPs 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.4,86,000/-towards the price of the plot to them as alleged by her, 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.

11                                        Ld Counsel for complainant argued that as per 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-4. Receipt dated 17.09.2013 Ex C-5 issued by Ops to complainant proves that there was a contract between complainant and OPs and in lieu of receiving the amount from complainant, they issued receipt to her. Therefore, in these circumstances, the OPs cannot deny their liability to deliver possession of plot within time. If they do not deliver possession to allottee in time, then this is a deficiency and trade mal practice on their part. The complainant argued that as per Revenue Record, the land in question is not in ownership of OPs. Copy of Mutation Ex C-9 from the Intkal Register clearly proves the fact that site in question is in the name of The Cooperative Department, Faridkot and document Ex C-10, which is a copy of jamabandi also justifies this fact. Even if OPs take plea of hardship that there is some dispute regarding land, due to which they are unable to develop the site, then in that case also, the allottees are entitled to get refund of the money deposited by them towards sale consideration of plot alongwith interest and compensation. He has put reliance on citation 2012 (2) CPC 524 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 last payment to OPs on 21.01.2014 and letter of intent was issued on 26.12.2013 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.18,00,000/-and complainant has made payment of Rs.4,86,000/-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–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                                              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-4, 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-9 and Ex C-10 i.e copy of mutation and jamabandi, it is transpired that OPs are not the owners of the land in dispute. 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.4,86,0s00/- the amount deposited by complainant with them as price of the plot alongwith interest at the rate of  12 % per anum from the date of its payment by complainant to them till its final realization. OPs are further directed to pay Rs.20,000/-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: 30.08.2016        

Member                President            (P Singla)              (Ajit Aggarwal)