DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA.

 

Consumer Complaint No. : CC/15/2019 

Date of Institution : 25.02.2019

Date of Decision : 14.10.2019

1. Sanjeev Kumar s/o Gurdas Ram

2. Parshant s/o Sanjeev Kumar 

Both residents of 1282, Street No.2, Gobind Colony, Barnala, District Barnala. 

...Complainants

Versus

1. Punjab Urban Planning & Development Authority, PUDA Complex, Master Tara Singh Urban Estate, Phase-II, Patiala through its Chief Administrative Officer.

2. Punjab Urban Planning & Development Authority, PUDA Complex, Master Tara Singh Urban Estate, Phase II, Patiala, through its Estate Officer. 

…Opposite parties

(Complaint U/s 12 of the Consumer Protection Act, 1986)

QUORUM:

SH.KULJIT SINGH, PRESIDENT

SH. TEJINDER SINGH BHANGU MEMBER.

SMT. MANISHA MEMBER. 

COUNSEL FOR THE PARTIES:

For complainant : Sh. RK Singla Advocate.

For Ops : Sh. Nitin Bansal Advocate.

Per KULJIT SINGH, PRESIDENT 

1. The present complaint has been filed by complainants under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred as Ops) on the averments that OPs gave advertisement in Punjab Kesri newspaper on 09.02.2015 that OPs are going to auction an SCO site at Old Tehsil Complex Barnala. The complainants made a bid for SCO No. 2 in Old Tehsil Complex, Barnala and same was allotted to them and OPs issued allotment by auction letter dated 19.05.2015 for allotment of SCO No.2 on the basis of auction held on 27.02.2015 and gave payment schedule of installments. OPs demanded an interest of Rs. 6,28,879.10 for the period from 27.02.2015 to 27.08.2015 inspite of the fact that allotment letter was issued on 19.05.2015. The demand of OPs is wrong and  false as they have right to take interest from 19.05.2015. OPs told that the matter would be solved after consultation with the authorities. The complainants approached OPs many times for rectification of interest so that they may deposit real interest amount. OPs told them to deposit the amount demanded by them and excess amount would be adjusted along with interest at the time of payment of final installment. The complainants deposited due installments before the due dates and as such OPs issued rescheduled letter dated 07.03.2018 and as per this letter complainants were asked to pay a sum of Rs. 3,73,777/- as principal installment amount alongwith interest. On this, complainants deposited a sum of Rs. 3,00,000/- on 09.03.2018 and asked OPs to prepare final payment and adjust excess amount, as interest, which already paid by them on 28.08.2015 i.e. Rs. 6,29,000/-. The complainants requested OPs many times in this regard use and they also gave a written request to OPs but of no use. They also filed appeal before Chief Administrator for refund of the wrongly charged interest but all in vain. As per site plan of the said scheme, there were three entrance gates but only two gates were made and third gate is pending and toilets shown in the site plan have not be made till now, which is a basic amenity, so scheme has not been completed till now. The act of OPs is not only deficiency in service but also unfair trade practice. Therefore, they filed the present complaint and prayed that OPs be directed to refund the amount of Rs. 3,14,500/- excess interest charged along with interest @ 18% p.a from the date of payment i.e. 28.08.2015 till realization. OPs are further be directed to pay interest @ 12% per annum from the date of deposit of installments till realization. The opposite parties be directed to pay Rs. 33,000/- as litigation expenses and to pay Rs. 1,00,000/- as compensation for mental agony and harassment. 

2. Upon notice of this complaint, OPs appeared and filed written reply and contested the complaint of the complainants by raising preliminary objections that the present complaint is nothing but a blatant abuse of the process of law. The complaint is hopelessly time barred as cause of action arose to the complainant on 27.2.2015 when auction has been made and allotment of SCO was successful and present complaint has been filed on 25.3.2019 after the lapse of two years. The complaint is not maintainable. The complainants are estopped by their own act and conduct. On merits, it was averred that OPs advertised vide various media and print media newspapers for the auction of SCO sites at old Tehsil Complex Barnala and same was allotted to him as being highest bid on dated 27.02.2015. The terms and conditions in the advertisement is well within the knowledge of complainants. Allotment letter was issued by OPs on 19.05.2015. Interest of Rs. 6,28,879.10 from the period of 27.02.2015 to 27.08.2015 paid by complainants vide receipt no. 3548 dated 28.08.2015. A reschedule letter dated 07.03.2018 was issued by OPs and complainants were asked to pay a sum of Rs. 3,73,777/- as principal installment amount with interest as per reschedule letter which is accordance with the policy issued for auction and same was agreed by the complainants and he deposited Rs. 3,00,000/- on 09.03.2018. The complainants filed a complaint against OPs and appeal before Chief Administrator and objection raised by complainants decided by Chief Administrator vide order dated 11.02.2019. Rest of the averments were denied by OPs and they prayed for dismissal of the complaint.

3. The complainant no. 1 tendered in evidence his affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-16 and closed the evidence. As against it; OPs tendered in evidence copies of documents Ex.OP-1-2/1 to Ex.OP-1-2/10 and closed the evidence. 

4. We have heard learned counsel for the parties and have also gone through the record of the case. Written arguments filed by the complainant has also been gone through. 

5. The complainant no.1 tendered in evidence his affidavit Ex.C-1 on the record. He deposed in his affidavit that OPs issued allotment by auction letter dated 19.05.2015 for the allotment of SCO no. 2 on the basis of auction held on 27.02.2015 and also gave payment schedule of installments. OPs demanded interest of Rs. 6,28,879.10 for the period from 27.02.2015 to 27.08.2015 inspite of the fact the allotment letter was issued on 19.05.2015. The demand of OPs is wrong and false. OPs have right to take interest from 19.05.2015 i.e. the date of allotment letter. The complainants approached OPs and asked to take interest from 19.05.2015 but OPs told them the matter will be solved after consultation with the authorities. OPs assured them that the excess amount will be adjusted alongwith interest at the time of payment of final installment. Complainants deposited due installments before due dates and as such OPs issued rescheduled letter dated 07.03.2018 and as per this letter they were asked to pay a sum of Rs. 3,73,777/- as principal installment amount alongwith interest as per rescheduled letter. On this, complainants deposited a sum of Rs. 3,00,000/- on 09.03.2018 and asked OPs to prepare final payment call and adjust excess amount, but OPs failed to do so. As per site plan of the said scheme, there were three entrance gates but only two gates were made and third gate is pending and toilets shown in the site plan have not been made till now, which is basic amenity, therefore, scheme has not been completed till now. Ex.C-2 is copy of newspaper advertisement. Ex.C-3 is copy of allotment letter vide memo no. 8071 dated 19.05.2015. Ex.C-4 is copy of receipt no. 3548 dated 28.08.2015 for payment of Rs. 6,29,000/-. Ex.C-5 is copy of payment schedule. Ex.C-6 is copy of receipt no. 5621 dated 09.03.2018 for payment of Rs. 3,00,000/-. Ex.C-7 is copy of letter dated 05.09.2018 regarding rate of interest. Ex.C-8 is letter regarding appeal to refund wrongly charged interest on allotment amount. Ex.C-9 is copy of letter dated 31.01.2019 regarding refund of excess amount charged by OPs. Ex.C-10 is copy of letter dated 28.04.2017 regarding completion certificate. Ex.C-11 is copy of letter dated 31.12.2015. Ex.C-12 is copy of letter dated 26.10.2018. Similarly, we have also examined other documents Ex.C-13 to Ex.C-16 on the record. 

6. To refute this evidence of the complainant, OPs relied upon copy of allotment letter Ex.OP-1-2/1 dated 19.05.2015. Ex.OP-2-2/2 is copy of terms and conditions of the allotment. Ex.OP-1-2/3 is copy of letter dated 26.11.2018. Ex.OP-1-2/4 is letter dated 28.02.2019. Similarly, we have also examined other documents Ex.OP-1/2/5 to Ex.OP-1/2/10 on the record.

7. It is an established fact that OPs gave advertisement in newspaper ‘Punjab Kesri’ on 09.02.2015 that OPs are going to auction an SCO site at Old Tehsil Complex Barnala. The complainants made a bid for SCO no. 2 in Old Tehsil Complex Barnala and same was allotted to them. OPs also issued allotment letter dated 19.05.2015 for allotment of SCO no. 2 on the basis of auction held on 27.02.2015 and also gave payment schedule of installments. OPs demanded interest of Rs. 6,28,879.10 for the period from 27.02.2015 to 27.08.2015 inspite of the fact that allotment letter was issued on 19.05.2015. It is clear that  allotment letter was issued to complainants and this fact is clear from allotment letter Ex.C-3 dated 19.05.2015 placed on record. 

8. The main grievance of the complainants is that OPs charged excess interest from them. They averred that OPs issued allotment by auction letter dated 19.05.2015 for allotment of SCO No. 2 on the basis of auction held on 27.02.2015 and also gave payment schedule of installments. OPs demanded interest of Rs. 6,28,879.10 for the period from 27.02.2015 to 27.08.2015 inspite of the fact that allotment letter was issued on 19.05.2015 and OPs have right to take interest from 19.05.2015 and not from 27.02.2015. The next grievance of the complainants is that as per site plan of the scheme there were three entrance gates but only two gates were made and the third gate is pending and toilets shown in the site plan have not be made till now, which is basic amenity. So, scheme has not been completed till now, so SCO cannot be constructed. As per para no. 1 (ii) of the terms and conditions Ex.OP-1.2/1 of the allotment of auction the exact size of the commercial site and its dimensions are subject to variation as per actual measurement at the time of delivery of possession of the site. In case the actual area exceeds the area offered, then the allottee would be required to deposit the additional price for the excess area proportionately as per price settled. In case of reduction in area the allotment price will be proportionately reduced. Further as per Para no. 1 (iii) of the terms and condition all applicable charges promulgated by Government, any statutory authority or local government other than those for change of land use will be payable over and above the consideration amount as and when due. In view of above said terms of the scheme, we reject the submission of the complainants they paid excess interest to OPs.

9. The complainants also filed appeal before Hon’ble High Court of Punjab and Haryana at Chandigarh regarding refund of the interest amount charged from them from OPs. Hon’ble High Court passed order in CWP No. 14038 of 2016 Ex.OP-1.2/8 with the direction that petitioners may be granted liberty to approach the Real Estate Regulatory Authority (RERA) for redressal of their remaining grievance. But complainants not approached the above authority as per order of Hon’ble High Court but filed complaint before this Forum. As per order of Hon’ble High Court, complainants should approach RERA for redressal of their grievance.  

10. Opposite parties raised objection in para no. 2 of the preliminary objection that complaint is time barred. The present complaint filed on 25.02.2019 before this Forum but the allotment letter for auction of SCO has been issued to complainants from OPs on 19.05.2015. As per Section 24-A of the Limitation Period, the complaint filed within two years from the date on which cause of action arisen. In the present case, the cause of action arisen from 19.05.2015 when allotment letter for auction of SCO has been issued to complainants by OPs. As per Section 24-A the District Forum, State Commission or National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action arisen. But in the present case, complainants have not followed the proper procedure as per Section 24-A of the Limitation Period. So we agree with the objection raised by OPs. Therefore, complaint filed by complainant is time barred. 

11. The Hon'ble Apex Court has examined this controversy in case titled as “U.T Chandigarh Administration and another versus Amarjeet Singh and others reported in 2009(II) CPJ-1 (SC) and held that when the sites are auctioned without any assurance relating to amenities, there is no question of deficiency in service or denial of service. Hon'ble Apex Court has held that a person participates in auction with open eyes. Thereafter, he cannot be heard to say that he would not make payment of the price. Any grievance by purchaser as well as give rise to complaint or consumer dispute. The auction purchaser in public auction is not consumer. On the basis of law laid down by Hon'ble Apex Court in U.T Chandigarh Administration (supra) complainant is not proved to be consumer being an auction purchaser of built up booth.

12. The next grievance of the complainant is that as per site plan of the scheme there were three entrance gates but only two gates were made and the third gate is pending and toilets shown in the site plan have not made till now, which is a basic amenity. So, scheme has not completed till now and SCO cannot be constructed. This plea of complainant is not genuine because allotment of the site purchased in auction is always made on “as is where is basis”. When complainants/purchasers paid bid to OPs for auction of site then it is duty of complainants/purchaser to see the actual position of the site and then he should paid the bid to seller/OPs. So, in the present case he is himself liable for this lapse. Regarding construction of toilets the complainants have not moved any application to the opposite parties for this grievance    only raised this plea in the present complaint and has not pressed this plea during arguments. 

13. As per allotment letter Ex.OP-2/1, it is clear that auction for allotment of commercial site/SCO no. 2 measuring 177.77 sq. yard situated at Old Tehsil Complex Barnala held on 27.02.2015 and same was allotted to them vide allotment letter Ex.OP-1-2/1 dated 19.05.2015, which is placed on the record. The exact size of the commercial site and its dimensions are subject to variation as per actual measurement at the time of delivery of possession of the site. In case the actual area exceeds the area offered, the allottee would be required to deposit the additional price for the excess area proportionately as per price settled. In case of reduction in area, the allotment price will be proportionately reduced. All applicable charges promulgated by government/statutory authority. As per sub clause (iii) of clause 5 of the allotment letter, the site is offered on “as is where is basis” and the authority/OPs will not responsible for leveling the site or removing the structures, if any, thereon. Further, as per sub clause (iv) of clause 5 allottee will have to construct one storey within 3 years from the date of possession. The period can be extended by Estate Officer in the manner and on payment of such fee as fixed by the authority. As per sub clause (v) of clause 5 of the allotment letter, if the construction on the site is not completed within the time stipulated in para (iv) above extension in construction period would be granted subject to payment of extension fee, as may be determined from time to time. However, extension in period of completion of building shall be subject to the satisfaction of the Estate Officer that the failure to complete the building within the stipulated period was due to a cause beyond the control of allottee. 10% per annum interest compounded half yearly from the allottee for delayed payment of extension fee/non construction fee will be charged. 

14. In view of the above facts and circumstances of the case, we dismissed the present complaint of the complainants on two scores first cause of action as disputed pertains to the year 2015 and present complaint filed on 25.2.2019 hence the complaint becomes barred by Section 24-A of Limitation Act. Secondly, the complainant is liable to pay interest as per terms and condition of the allotment of site Ex.OP-1-2/2 which is placed on record. However, no order as to costs or compensation. Copy of this order be supplied to the parties free of costs. The file be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN FORUM:

    14th Day of October 2019

 

 

            (Kuljit Singh)

            President

              

(Tejinder Singh Bhangu)

Member

 

(Manisha)

Member