Chandigarh

DF-II

CC/970/2021

Dev Raj - Complainant(s)

Versus

Punjab Urban Planning & Development Authority / BDA (Bathinda Development Authority). - Opp.Party(s)

Adv. Sahil Garg

14 Sep 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	970 of 2021
Date  of  Institution	:	21.12.2021
Date   of   Decision	:	14.09.2022

 

 

 

 

 

Dev Raj s/o Late Sh.Sadhu Ram, aged 70 years, Advocate, Punjab & Haryana High Court, Chandigarh & Resident of H.no.1212, Sector 15, Panchkula.

             …..Complainant

 

Versus

 

Punjab Urban Planning & Development Authority/BDA (Bathinda Development Authority), PUDA complex, Bhagu Road, Bathinda, through its Estate Officer

    ….. Opposite Parties

 

BEFORE:  SMT.PRITI MALHOTRA     PRESIDING      MEMBER

                SH.B.M.SHARMA                              MEMBER

 

 

For Complainant :    Sh.Sahil Garg, Advocate

For OP (s)      :    Sh.Anuj Kohli, Advocate

 

 

PER PRITI MALHOTRA,  MEMBER

         Concisely put, the case of the complainant is that he is a senior citizen and practicing Advocate.  It is stated that Opposite Party in the year 2012 invited applications for allotment of residential plots at PUDA Enclave (Sugar Mill Site), Budhlada @Rs.6,000/- per square yards.(Ann.C-2).   It is stated that the complainant was interested in having a residential house for himself and his family use, as such, he applied for a residential plot of 250 sq. yd. vide application no.3723 along with a demand draft for Rs.1,50,000/- i.e. 10 % of the total cost of plot. Thereafter, the complainant was successful in draw of lots held on 15.01.2013 and vide letter of intent bearing no. PUDA-EO/2013/1745 dated 26.02.2013, a plot of 250 sq. yd. was intended to be allotted to the complainant and 15 % amount was demanded in order to complete 25% of the total price of the plot, to be made in 30 days from the issue of letter of intent (Ann.C-3). the complainant duly sent a demand draft bearing no.918880 dated 11.03.2013 drawn on Andhra Bank for Rs.2,25,000/- in favour of the Opposite Party through registered post on 12.03.2013 (Ann.C-4(Colly). That 25 % amount paid by the complainant remained with the Opposite Party and the Opposite Party utilized the hard earned money of the complainant but didn't carry out any development at the site. The Opposite Party after almost 4 years vide memo no.PUDA/E.O/2016/7781 dated 28.10.2016 allotted a plot no.1053 measuring 250 sq. yds. along with payment schedule (Ann.C-5). The complainant made the payment of first installment which fell due on 27.10.2017 through demand draft bearing no.641230 dated 22.10.2017 for Rs.3,22,500/- which included interest of Rs.1,35,000/- duly sent through registered post on 22.10.2017 (Ann.C-6 (Colly). It is stated that the allotment letter allotting Plot No. 1053, measuring 250 sq. yards was issued on 28.10.2016 but the Opposite Party was well aware that the possession, was not possible, as the plot no.1053 was as per the original lay out plan which stood changed on 19.10.2016 before allotment on 28.10.2016 and thus, the conduct of Opposite Party has been very unfair and it allotted Plot No. 1053 with a view to illegally charge interest from the complainant. It is also stated that the Opposite Party vide letter dated 23.02.2018 (Ann.C-7) intimated that due to technical reasons, re-planning was done and draw of plots was again held on 17.01.2018, in pursuance of which the complainant was allotted plot no.818 measuring 256.67 sq. yds. and that the possession will be delivered between 21.02.2018 to 01.03.2018 and, if possession was not taken by 01.03.2018 then possession would be deemed to have been delivered on 01.03.2018, whereas Clause No.13 of Letter of Intent provides 60 days time for possession from the issue of Letter of Allotment. It is submitted that the possession offered was not valid and legal as development works were not complete and further, the letter was received, when the time to take possession was almost over.  However, the complainant deposited Rs.40,020/- for additional 6.67 sq. yards area through demand draft dated 18.04.2018 (Ann. C-8 (colly). The complainant deposited a sum of Rs.2,43,750/towards 2nd installment on 21.04.2018 which included interest of Rs.56,250/- through demand (Ann.C-9 (colly).  The complainant in order to avoid the payment of further exorbitant interest on the remaining installments, paid the entire balance amount of Rs.7,30,120/- vide demand draft dated 28.05.2018 (Ann.C-10 (colly).

         It is submitted that the complainant filed a complaint before the Hon'ble SCDRC, Punjab on 20.11.2018, seeking rescheduling of installments and refund of interest on installments, interest on 25% amount and 5% discount on first and second installments, compensation etc. mainly on the ground that the allotment letter dated 28.10.2016, allotting Plot No. 1053, measuring 250 sq. yards was issued on basis of non-existing layout plan which stood changed as per the revised layout plan dated 19.10.2016 and, thus, possession of the same was not possible and thereafter the Opposite Party allotted plot No.818 vide letter dated 23.02.2018 which shows that the allotment of Plot No. 1053 was made to illegally charge interest from complainant and other allottees. The said complaint was allowed by the Hon'ble State Consumer Disputes Redressal Commission, Punjab vide its order dated 11.03.2019 (Ann.C-11). It is also submitted that from the information obtained under the Right to Information Act, 2005 by one Mrs. Raksha Devi, in July, 2020, the complainant came to know that the Opposite Party had participated in a meeting of Finance and Accounts Committee of PUDA at Mohali on 28.06.2019, wherein with regard to agenda item no.92.02, while admitting non-completion of development works timely and the fact that market rate was less than the allotment rate of Rs.6000/- per sq. yard, approval was granted (i) for not charging any interest from allottees till the start/delivery of possession date of 01.03.2018, (ii) where the allottees who sought refund of deposited amount of plots, they may be refunded deposited amount without any deduction and without any interest. The information also revealed that out of 1115 plots, 784 plots were allotted and 550 allottees have withdrawn from the scheme and number of left over allottees as on 10.06.2020 was 232, which is now further reduced to 116 allottees as per RTI information dated 12.07.2021 (Ann.C-12 (Colly). It is further submitted that in such circumstances, the complainant also applied for refund of his deposited amount along with appropriate /prevailing rate of interest from the date of respective deposits vide letter dated 30.05.2020 sent through speed post & email and it was also mentioned that he will not press for the execution of the award passed by the Hon'ble SCDRC, Punjab in case his request was acceded to (Ann.C-13 (Colly). It is pleaded that the Estate Officer, BDA/Opposite Party, instead of refunding the amount along with interest to the complainant, vide letter dated 24.12.2020 (Ann.C-14), informed that the amount deposited by the complainant could be refunded without any interest and deduction, and in an unfair manner sought affidavit to the effect that the complainant will not file any execution and, in future, will not file any complaint/appeal case in any Court/Forum/Commission. As the request for refund with interest was declined, so, the complainant, filed execution application bearing No.86 of 2021 before the Hon'ble Punjab State Consumer Disputes Redressal Commission. The Opposite Party instead of making the payment, filed FA No.517 of 2021 on 11.08.2021, after more than two years of passing of the order dated 11.03.2019, which was dismissed by the Hon'ble National Commission vide its order dated 18.08.2021. Subsequently, the complainant received decretal amount except Rs.35,000/- on 23.08.2021.

         It is also pleaded that the act of allowing refund to a large number of allottees makes it abundantly clear that the Opposite Party has abandoned the project and the complainant has every right to seek refund and the Opposite Party is bound to refund the amount along with interest from the respective date(s) of deposit(s) to the complainant. It is submitted that the Opposite Party did not inform the complainant about its aforesaid decision taken in the meeting of Finance and Accounts Committee of PUDA at Mohali on 28.06.2019 and thus discriminated and denied the opportunity to seek refund in the year 2019 and had he been informed/given option to seek refund, he could get the refund more than two years ago. It is also submitted that it is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course; the obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so held by the Hon'ble Supreme Court in Union of India vs Tata Chemicals Ltd. (Supreme Court) (2014) 6 SCC 335) that when amount is refunded, the interest has to be paid. Further, in the present case, the development works are not complete and legal possession of the plot has not yet been offered.  As per the RTI information obtained vide letter dated 12.07.2021 (Ann.C-16), out of 784 allottees, the left over allottees are now only 116. Further as per RTI information dated 02.08.2021 and 13.08.2021 (Ann.C-17), the work of HT/LT was completed/handed over to PSPCL on 20.11.2018, as per orders of the Head Office, the development works in Parks were not executed, which falsifies the claim of Opposite Party that development works were complete when possession was offered vide letter dated 23.02.2018 (Ann.C-8). Further, no commercial site/booth has been allotted/sold till date. It is asserted that the Hon'ble District Consumer Disputes Redressal Commission Mansa in its judgment dated 29.10.2021 in CC No. 78 of 2019 titled 'Jaspal S/o Diwan Chand Versus PUDA, Bathinda' and 23 other connected complaints, has observed that development works such as the boundary wall has not been constructed and water supply is also not available. It is also asserted that these facts/documents also falsify the stand of the Opposite Party that development was complete when possession of changed plot was hurriedly offered on 23.02.2018. It is further asserted that since the project stands abandoned by the Opposite Party, the complainant is entitled to refund of balance amount of Rs. 15,20,140/- along with interest @ 10 % from the date(s) of respective deposits apart from compensation for harassment and litigation expenses. Hence, this complaint has been preferred.

 

2]       The OP has filed reply and while admitting the factual matrix of the case, took objection about the complaint being time barred and present dispute is to be dealt with by Arbitrator per allotment letter.  It is stated that it is not the case of the complainant that the letter in any manner changed the plot allotted to him, it merely communicated the change in plot number and the said fact does not in any manner give any alleged cause of action.  It is denied that possession offered was not valid or legal or that development works were not complete or that the letter had been received when the time to take possession was almost over.  It is denied that the alleged refund allowed to large number of allottees establishes in any manner that the project has been abandoned or that the complainant has every right to seek refund or that the OP is bound to refund the amount along with interest from the respective date of deposit to the complainant. It is submitted that the complainant has already instituted a complaint and got relief in the same from the Hon’ble State Consumer Disputes Redressal Commission, Punjab and has further received the award amount under the said complaint and he never claimed the relief sought through the present complaint despite being aware of the same, consequently the present complaint is not maintainable.  It is submitted that the possession of the plot in question has already been offered and given to complainant as per letter dated 23.2.2018 and he retains ownership of the said plot till date.

         It is pleaded that the colony was completely developed at the time of offer of possession to complainant vide letter dated 23.2.2018.  It is also pleaded that Green plants/flower plants, green grass on both sides of roads was planted at that time.  It is denied that basic amenities like water, sewerage etc. are not available at the site.  It is submitted that infact the complainant was required to get building plan sanctioned and then to apply for water connection but he never applied for sanction of building plans and water connection, so he cannot say that basic amenities like water, sewerage etc. are not available at site.  It is also submitted that the complainant is not entitled to refund. All other allegations have been denied and a prayer for dismissal of the complaint has been made.

 

3]       Rejoinder has also been filed by complainant controverting the assertions made by OP in its reply.

4]       The parties led evidence in support of their contentions.

5]       We have heard the ld.Counsel for the parties and have also perused the entire record thoroughly.

6]      Admittedly, the complainant was re-allotted Plot No.818 measuring 256.67 sq. yards against earlier allotted Plot No.1053 measuring 250 sq. yards in PUDA Enclave, Sugar Mill Site, Budhlada by the OP.

7]       The plot which was earlier allotted to the complainant was not in the original layout plan and fresh allotment letter for another plot was issued on 23.2.2018 and thereafter as per policy of the OP, the interest paid on the installment was waived off.  Undisputedly, the complainant had paid all the payments/installments in respect of the plot in question to the OP. 

8]       The complainant earlier filed a complaint Case No.905 of 2018 before the Hon’ble Punjab State Commission, Chandigarh in order to get the refund of interest amount paid by him on the installments and the said complaint was ultimately allowed vide order dated 11.3.2019 in his favour.  The OP instead of complying with the order of Hon’ble State Commission, Chandigarh, preferred an appeal which was also dismissed and thereafter, the OP under the execution paid the decreetal amount. 

9]       In the present complaint, the complainant has sought refund of entire deposited amount along with interest as the OP till the filing of the present complaint never offered the possession of the complaint in question to the complainant nor refunded deposited amount qua the plot. 

10]      It is so argued on behalf of the complainant that the complainant got information, supplied by OP under RTI to other persons, about the status of the project and came to know about the factum that the OP has abandoned their project and now less allottees are left and the OP has refunded the amount to numerous allottees. 

11]      It is the objection of the OP that they have not abandoned the project and ready with the possession and claimed that the complainant has failed to raise his claim in the earlier complaint filed before the Hon’ble Punjab State Commission, Chandigarh.  The OP also claimed that the matter be referred to the arbitrator as per the clauses of allotment letter. 

12]      The plea of the OP that the complainant has failed to raise his claim in the earlier complaint filed before the Hon’ble Punjab State Commission, Chandigarh is not tenable.  On the other hand the filing of the present complaint shows the bona-fide of the complainant that he was merely not interested in the project of the OP to invest his amount but in actual was eager to have possession of the plot complete in all respect and for that reason, in the complaint filed before the Hon’ble Punjab State Commission, Chandigarh no relief qua the refund of principal amount was sought and the complaint was filed only to seek the refund of the interest amount paid by complainant on the installments, which OP failed to refund in time despite having their policy for the waiver of interest on installments. 

13]      The objection of the OP that the present complaint is time barred is untenable as the amount of the complainant is still lying with OP, so the cause of action in favour of the complaint is recurring one. 

14]      The objection of the OP about the existence of Arbitration clause in the Terms of the Allotment Letter, is non-maintainable.

         It is opined that per Section 100 of The Consumer Protection Act, 2019 “ The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

         The provisions contained in the act are in addition to and not in derogation of any other law for the time being in force.  Reliance has been placed  on =  Hon’ble Supreme Court of India in Civil Appeal No.8104 of 2013 – Rosedale Developers Private Limited Vs. Aghor Bhattacharya and Others, decided on 6.9.2013  & Hon’ble National Commission, New Delhi in R.P. No.2030-31 of 2016 – Vishnu Chandra Sharma Vs. Sriram Finance Company Ltd. and Tata Motors Limited, decided on 20.3.2017.

         Therefore, the objection of the OP about arbitration clause, is also rejected being untenable.

15]      From the record and evidence, it is clearly made out that the complainant is fully entitled for the refund of his entire amount deposited with the OP qua the plot in question, the possession of which the OP failed to deliver to the complainant, having all basic amenities, since the year 2012/2013 when initial amount along with application for the plot was obtained and letter of intent was issued by OP. 

         The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal bearing No.342 of 2014 titled as “Emaar MGF Land Ltd. & Anr. Vs. Karnail Singh & Ors.”, decided on 25.07.2014 has observed: “The appellants should have given firm date of handling over the possession at the time of taking the booking amount itself.  By not indicating the true picture with regard to their project to the respondents, the appellants induced them to part with their hard earned money, which also amounts to unfair trade practice.”

         The Hon’ble Supreme Court of India in Civil Appeal No.3533-3534 of 2017 – Fortune Infrastruture vs. Trevor’D Lima, decided on 12.3.2018 has observed: - Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered.

         Hence, the act of the Opposite Party to collect the money from the complainant before obtaining the necessary approvals for the project from competent authorities; not delivering the possession of the Unit nor giving the confirm date of handling over possession of the plot in question nor placed on record the completion certificate of the project in question having all basic amenities, certainly proves deficiency in service and its indulgence into unfair trade practice. 

16]      In the light of above observations, we are of the considered view that the Opposite Party is found deficient in rendering proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint deserves to succeed against the Opposite Party.  Accordingly, the present complaint is allowed with direction to OP to refund to the complainant an amount of Rs.15,20,140/- along with interest @10% p.a. from the respective dates of deposit till its payment. The OP is also directed to pay an amount of Rs.50,000/- to the complainant towards compensation for causing him immense mental agony and harassment, along with litigation cost of Rs.20,000/-.

         The above said order shall be complied with by the Opposite Party within a period of 30 days from the date of receipt of its copy, failing which they shall be liable to pay additional cost of Rs.35,000/ apart from the above awarded amount.

         Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

14^th September, 2022                                                                                                                                                  Sd/- 

(PRITI MALHOTRA)

MEMBER

 

Sd/-

 (B.M.SHARMA)

MEMBER