Punjab

StateCommission

FA/12/506

Suresh Chand Kaura - Complainant(s)

Versus

Punjab Mandi Board - Opp.Party(s)

Monika Goyal

01 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.506 of 2012

 

                                                          Date of Institution: 25.04.2012  

                                                          Date of Decision:  01.04.2015

 

Suresh Chand Kaura (S.C Kaura) son of Shri Shamsher Lal, resident of 472, Urban Estate, Phase II, Durgi Road, Ludhiana                                                                                                                                                                                         …..Appellant/Complainant

         

                                      Versus

 

1.       Punjab Mandi Board, SCO No.149-152, Sector 17-C, Chandigarh,        through its Administrator/Estate Officer.

 

2.       Market Committee, Ludhiana, through its Secretary

 

                                                          …..Respondent/Opposite Parties

 

         

First Appeal against order dated 21.03.2012 passed by the District Consumer Disputes Redressal Forum, Ludhiana

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member

Present:-

 

          For the appellant                       :         Sh.Hitesh Verma, Advocate.

          For the respondent          :         Sh.P.K.S Gill, Advocate

.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant (the complainant in the complaint) has directed this appeal against the respondents of this appeal (the opposite parties in the complaint), assailing order dated 21.03.2012 of District Consumer Disputes Redressal Forum Ludhiana, dismissing the complaint of the complainant, now appellant in this appeal.  

The instant appeal has been preferred against the same by the appellant.

2.      The complainant Suresh Chand has filed this complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that the complainant bade on 11.11.1996, pursuant to an advertisement in the newspaper for the allotment of shops and booths in Chara Mandi Haibowal Ludhiana by way of auction and he came out  a successful bidder for general booth no.11 measuring 10'x30'-4^1/2'   and booth was allotted to the complainant by OP No.1. The complainant deposited Rs.37,750/- as per terms of the allotment.  Total sale consideration of this booth by the OPs was fixed at Rs.1,52,000/-  along with intimation for allotment of the booths. The OPs were required to demarcate the area and to hand over the particular booth to the complainant at the  spot before receiving the remaining amount of sale consideration from the complainant. The OPs did not bother to comply with the terms and conditions of the allotment on their part and rather failed to honour their commitment by not handing over the possession of the allotted booth to the complainant. The complainant could not proceed with the construction of the booth, as he was not put in possession thereof by the OPs. The complainant requested the OPs to demarcate the site and to put him in possession, but to no effect. The OPs instead of giving possession of the allotted booth to the complainant and providing the amenities for construction of the booth, rather started demanding the remaining amount of sale of booth from the complainant, which was totally unjustified. The OPs started giving out that they were re-planning the entire scheme in the year 2010 and process of the redrawing the area and on this pretext, the OPs advised the complainant to wait till then.  On 22.11.2010, OP No.1 addressed a letter to the complainant and asked him to pick up the plan from the office of OP No.2 by depositing an amount of Rs.2000/- and objection of the complainant was also sought through this letter. The complainant contacted OP No.2, where he was asked to furnish the affidavit in the prescribed format, which was duly complied by the complainant and the specimen of which was provided by OP No.2 and no objection of complainant was obtained regarding the de-notifying the area, so as to make a fresh plan and prepare the  redrawing of the area and complainant submitted an affidavit on 26.12.2010, which was obtained by the OPs even without showing the proposed re-planning or redrawing.  Thereafter, the complainant and other successful bidders of the different booths visited the office of the OPs on various occasions with a request to honour the terms of the allotment and to hand over the vacant possession thereof, but to no effect. The OPs issued notice 27.07.2011 raising demand of Rs.3,71,000/- by 10.08.2011 . The OPs have not delivered the possession for general booth as allotted to the complainant and as such there was no question of making the repayment of installments by the complainant and, thus, the complainant has filed this complaint, directing the OPs to demarcate the area and to deliver the vacate possession thereof and to fix remaining amount of sale consideration, as per the allotment letter and to quash the demand of any interest beyond the sale price and further to pay compensation of Rs.1 lac for mental harassment of the complainant.

3.      Upon notice, OPs appeared filed written reply raising preliminary objections that complaint is barred by time. The complainant is not a consumer and he is the auction purchaser  and has no right to file the complaint. It was admitted that administrator New Mandi Township Punjab Mandi Board, vide letter dated 12.10.2011, directed to the concerned official of the OPs to repossess booth no.11 and also passed an order to forfeit 10% amount out of already deposited amount by the complainant. The complainant concealed the material facts from the Consumer Forum and, thus, is not entitled to any relief.   The complainant applied and participated in the auction held on 11.11.1996 and also deposited Rs.37750/- as 25% amount out of the total bid amount of Rs.1,51,000/- being the highest bidder of booth no.11, which was allotted to him, vide allotment letter dated 05.02.1997,  duly issued by the OPs and balance amount of Rs.11,3250/- was to be deposited by the complainant in six half yearly installments along with 12% interest failing which , to pay further interest @12%. The first installment was due on 05.08.1997 of Rs.25673/- along with interest, as per schedule supplied to the complainant and last installment was payable on 05.02.2000, but the complainant has not deposited even a single installment. Till 30.06.2011, the amount of Rs.3,71,000/- was outstanding from the complainant along with interest @ 12% p.a up to 30.06.2011 besides penalty of 10% penalty upon earlier amount of installment of Rs.1,37043/- . The OPs were, thus, legally entitled to repossess the booth and even notice was issued to the complainant on 14.03.2008 in this regard by Estate Officer, Punjab Mandi Board, Chandigarh and complainant replied it on 26.03.2008 stating that due to disturbed family circumstances and illness, he was not in a position to raise the construction over the booth no.11. Another notice dated 08.07.2008 was also issued and reply thereof was filed on 15.07.2008 by the complainant and same story was repeated in the reply and complainant agreed to deposit a sum of Rs. 137043/-, which was not acceptable. Notice dated 16.06.2011 was issued to the complainant and complainant was directed to deposit sum of Rs.3,71,000/- , but he failed to deposit the said amount. Then another notice dated 27.7.2011 was issued to the complainant in this regard, but complainant failed to deposit the said amount. Another notice dated 07.09.2011 was issued and one more opportunity was given to the complainant to deposit the required amount till 20.09.2011, but he could not do so. The complainant failed to deposit the balance amount of Rs.3,71,000/- and as such Administrator New Mandi Township passed order dated 12.10.2011 to repossess the booth no.11. The OPs further pleaded that complainant was directed to pick up the new scheme by way of deposit of Rs.2000/- from the office of the OP No.2. The OPs, thus, prayed for dismissal of the present complaint.

4.      The complainant tendered in evidence the affidavit of complainant Suresh Chand Ex.C-A, copy of letter Ex.C-1, copy of letter dated 26.03.2008 Ex.C-2, copy of letter dated 15.07.2008 Ex.C-3, copy of letter dated 28.12.2010 Ex.C-4, affidavit of Suresh Chand Ex.C-5, copy of letter dated 22.11.2010 Ex.C-6, copy of letter dated 27.7.2011 Ex.C-7, copy of letter Ex.C-8, copy of draft in plain paper Ex.C-9, copy of legal notice Ex.C-10, copies of postal receipts Ex.C-11 and Ex.C-12,.  As against it, OP tendered in evidence affidavit of Sukhminder Singh, Secretary Market Committee Punjab Mandi Board  Ex.RW-1/A, copy of receipt of Rs.5000/- Ex.R-1, copy of document Ex.R-2, copy of Form No.15 dated 12.11.1996 Ex.R-3, copy of memorandum dated 11.11.96 Ex.R-4, copy of document Ex.R-5, copy of letter no.5588 Ex.R-6, copy of letter dated 30.1.02 Ex.R-7, copies of letters Ex.R-8 to Ex.R-9, copy of document Ex.R-10, copy of letter dated 14.3.2008 Ex.R-11, copy of letter dated 26.3.2008 regarding extension of time Ex.R-12, copy of letter dated 08.09.2008 Ex.R-13,  copy of letter dated 15.07.2008 Ex.R-14, copy of letter dated 28.12.2010 Ex.R-15, copy of letter dated 16.06.2011 Ex.R-16, copy of letter Ex.R-17, copy of letter dated 27.7.2011 Ex.R-18, copy of letter dated 7.09.2011 Ex.R-19, copy of order No.1495 of 2011 of office of Punjab Mandi Board Ex.R-20 and copy of document Ex.R-21. On conclusion of evidence and arguments, the District Forum Ludhiana, dismissed the complaint of the complainant on 21.03.2012. Dissatisfied with the order of the District Forum, Ludhiana dated 21.03.2012, the complainant has preferred this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case as well.  

6.      The evidence is required to be examined by us to settle the controversy between the parties. Pleadings and affidavits placed on the record of both the parties have also been carefully examined by us with the able assistance of counsel for the parties. Ex.C-1 is advertisement of the booth, total price of booth no.11 with dimensions (10'x30'- 4^1/2'' ) Rs. 1,51,000/-, balance amount 75% was to be deposited within 30 days or then six monthly installments from the date of issuance of the allotment letter with 2% rate of interest, Ex.C-2 is letter dated 26.03.2008 sent by the complainant to Estate Officer, Punjab Mandi Board Chandigarh stating that he could not raise the construction on the plot due to  unfavorable family circumstances and he also fell sick and was incapacitated from raising construction of the booth. Ex.C-3 is another letter dated 15.07.2008 by the complainant addressed to Estate Officer Punjab Mandi Board Chandigarh demanding six months time from 15.07.2008 to raise the construction and to make the balance amount, Ex.C-4 is letter No.10882 dated 28.12.2010 sent to the complainant by the OPs intimating that on 15.01.2011 amount of sale deposit was Rs.3,53,000/- from the complainant and the complainant was directed to deposit this amount with the account of M.D Marketing Board by 15.01.2011. Ex.C-5 is affidavit of the complainant regarding his readiness to take the booth and is dated 4.11.2008, Ex.C-6 is letter sent by the Secretary Marketing Board to complainant for collecting site plan, Ex.C-7 is the letter of Administrator Punjab Mandi Board  to complainant calling upon him to deposit the installment amounts by Rs.2000/-, Ex.C-8 is the letter of the complainant to the Administrator Punjab Mandi Board stating that he took the booth  of Rs.1,51,000/- and deposited Rs.37,750/- as 25% amount thereof. The balance is stated to be Rs.1,13,250/- by the complainant, vide Ex.C-9 is plain Photostat copy of some document. It is not even the photocopy of the demand draft, which could be relied upon by us as well, even otherwise it states that it pertains to the amount of Rs.1,32,250/- by virtue of draft no.056537 of Bank of India, legal notice is Ex.C-10 served upon the OPs by the complainant, Ex.C-11 and Ex.C-12 are postal receipts thereto.

7.      The OPs relied upon the affidavit Ex.RW-1/A of Sh. Sukhminder Singh, Secretary Market Committee Punjab Mandi Board Ludhiana to the effect that the evidence furnished by the complainant is not true, Ex.R-1 is receipt of Rs.5000/- received from the complainant on 11.11.1996, Ex.R-2  pertains to auction of the booth no.11 for Rs.1,51,000/-, Ex.R-3 copy of Form No.15 regarding receipt of Rs.5000/- received by the Administrator and the amount of Rs.32,750/- was received from the complainant, Ex.R-4 is memorandum of sold booth to indicates that complainant deposited Rs.37,750/- out of the sale price of Rs.1,51,000/- for booth in question, Ex.R-5 is the letter from the Administrator to the Administrator New Mandi Township Punjab pertaining to the complainant containing terms and conditions, Ex.R-6 and Ex.R-7 is schedule of the installments to be paid, Ex.R-8 is registered notice sent to the complainant through  Naib Tehsildar Ludhiana by the OPs. Ex.R-9 is pertains to payment of the installments, Ex.R-10 is final account statement of the complainant, it shows that amount of Rs.3,71,000/- is due from the complainant. The instructions sent to the complainant Ex.R-11, letter of the complainant for extension of time for construction of the booth is Ex.R-12, copy of letter dated 08.07.2008 Ex.R-13 regarding resumption of the booth by the OPs. We have also examined the documents Ex.R-14 to Ex.R-20 on the record.

8.      We have come to this conclusion from examination of evidence as recorded and after hearing submissions of the counsel for the parties, that complainant undoubtedly participated in the public auction and was allotted booth no.11. He deposited 25% amount of it. The complainant could not deposit the installments thereafter. The counsel for the complainant could not convince this point before us that remaining installments were deposited in time and rather the complainant wrote letters to the OPs, as discussed above seeking extension of time for the construction of booth in question. The vehement submissions raised by counsel for the complainant now appellant is that possession was not delivered to the complainant of the booth and hence it was and hence it was improbable for the complainant to raise the construction of the booth. We are not convinced with this point, as raised by the counsel for the complainant. The complainant himself applied to the Ops for extension of time for the construction of the booth as per the documents on the record, as discussed above. There was no question of applying for extension of time to raise the construction, if possession was not delivered to the complainant, as pleaded by him in this case. We find that complainant himself has failed to deposit the installments with the OPs and Ops are competent to resume the booth for failure of the complainant to pay the balance amount thereof. The allotment of the booth of the complainant has been cancelled by the OPs on the ground of his failure to deposit the entire price as claimed. Even otherwise Haryana State Consumer Disputes Redressal Commission Panchkula has held in Nidhi Malhotra  Vs.Karnal Improvement Trust Karnal & Another reported in II (2011) CPJ 166-67 that booth purchased in auction, complaint filed for deficiency in service, booth was purchased in open auction, it was so held by the State Commission, while relying upon the judgment of the Apex Court in case U.T Chandigarh Administration & Another Vs. Amarjeet Singh & Others reported in II(2009) CPJ Page 1 (SC), II (2009) SLT 736 (2009) 4 SCC 660, The above referred judgment of the Apex Court  is reproduced as   under :-

          "Where there is public auction without assuring any specific or         particular amenities, and the prospective purchaser/lessee   participates in the auction, after having an opportunity of      examining the site, the bid of the auction is made keeping in       view the existing situation, position and condition of the site. If          all amenities are available, he would offer a higher amount. If     there are no amenities, or if the site suffers from any          disadvantages, he would offer a lesser amount, or may not           participate in the auction. Once with open eyes, a person        participates in an auction, he cannot thereafter be heard to say         that he would not pay the balance of the price/premium or the      stipulated interest on the delayed payment or the ground rent, on the ground that the site suffers from certain disadvantages          or on the ground that amenities are not provided. With           reference to a public auction of existing sites (as contrasted          from sites to be formed) the purchaser/lessee is not a           consumer, the owner is not a 'trader' or 'service provider'  and          the grievance does not relate to any matter in regard to which      a complaint can be filed. Therefore, any grievance by the purchaser/lessee will not give rise to a complaint or consumer           dispute and the Fora under the Act will not have jurisdiction     to entertain or decide any complaint by the auction     purchaser/lessee against the owner holding the auction of sites."

The Hon'ble National Commission has also held in  case Subhash Infra Engineers Pvt Ltd… Vs. Haryana Urban Development Authority reported in 1 (2015) CPJ 41 (NC) that auction property was purchased in a public auction- complainant is not a consumer. Consequently, since the property was purchased in public auction by the complainant hence the complainant is not a consumer as held in the above-referred authority. We further rely upon the judgment of National Commission in  case titled as Rajot Municipal Corporation & Another Vs. Dr. Hemang H. Vasawada  reported in III (2012) CPJ 689 (NC) to the effect that relationship of buyer and seller could not be that of a service provider and consumer in purchase of plot in auction of plot , which is a case of transaction in immovable property with no element of service involved therein.  In addition to that, Rule 12 of Punjab State Agricultural Marketing Board  (Sale and Transfer of Plots Rules 1999) also provides an efficacious remedy of the appeal to the aggrieved persons before Secretary of the Board or Officer authorized by him within 30 days of the order appealed against. An efficacious remedy of appeal is provided to the complainant now appellant under the above rules and since the complainant purchased the booth in public auction, his complaint is not cognizable by the Consumer Fora on the basis of the law in the above authority. The OPs resumed the booth by cancelling it on account of sheer default of the complainant in not making payment of the balance installments. The order of the District Forum dismissing the complaint of the complainant calls for no interference by us in this appeal.

9.      As a result of our above discussion, appeal of the appellant is hereby dismissed being without any merits.

10.    Arguments in this appeal were heard on 27.03.2015 and the order was reserved. Now the order be communicated to the parties.

11     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                 (VINOD KUMAR GUPTA)

                                                                             MEMBER

 

April 01  2015.                                                               

(ravi)