DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT.
Complaint No. : 76
Date of Institution : 09/06/2014
Date of Decision : 15/01/2015
Rajpal Singh aged about 55 years S/o Jabarjang Singh S/o Gurdial Singh R/o Bhag Singh Wala, Tehsil and District Faridkot.
...Complainant Versus
Manager, State Bank of India, Branch Sadiq, District Faridkot.
Estate Officer (PUDA), Puda Complex, Bhagu Road, Bathinda-151001.
...Opposite Parties (OP)
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum: Sh. A.K. Mehta, President
Smt. Parampal Kaur, Member
Sh. Purshotam Singla, Member
Present: Sh. G.S.Chauhan, Adv., Ld. Counsel for complainant.
Sh. Rajneesh Garg, Advocate, for OP-1
Sh. V.K.Monga, Adv., Ld.Counsel for the OP-2.
JUDGMENT
(A.K. Mehta, President)
Complainant Rajpal Singh has come to this Forum with complaint U/s 12 of the Consumer Protection Act,1986 (hereinafter to be called as CP Act) against State Bank of India etc. OPs for directing the OP-2 to refund the amount of Rs.1,80,000/- to the complainant and also directing the OP-2 to withdraw the letter dated 31.03.2014 being null and void and to further pay Rs.50,000/- as compensation for harassment and mental tension and Rs.5500/- as litigation expenses.
The case of the complainant is that complainant falls under the definition of the consumer as he has availed the service of the OPs; that OP-1 Manager introduced the scheme of OP-2 to the complainant in June 2013 as complainant is consumer of OP-1 Bank for long time and on the advise of OP-1 complainant applied for allotment of residential plot measuring 200 sq yards vide application no.450 and the draw of lots were held on 30.08.2013 and complainant was successful in draw of lots; that OP-1 did not introduced the whole of the scheme in question to the complainant nor brochure was given to the complainant by OP-1 to know about the terms and conditions of the scheme, rather OP-1 Manager was interested to fulfill his loan targets; that OP-2 issued a letter of intent on 24.12.2013 to the complainant and demanded 15% amount of the price of the plot i.e. Rs.2,70,000/- which was to be paid within 30 days of issue of letter of intent in order to complete 25% of the price but letter was silent whether 10% of the price of the plot had already been paid by the OP-1 and the letter was also silent whether the 15% amount is the first installment or 2nd installment for the plot; that after receiving the said letter, complainant went to OP-1 as OP-1 never informed the complainant that amount of Rs.1,80,000/- has already been paid by OP-1 as first installment to OP-2 for allotment of plot in question but after some days, complainant came to know that amount of Rs.1,80,000/- has already been deposited by OP-1 for the allotment of the plot but OP-1 made the payment without informing complainant and without taking proper permission from him and as such act of the OP-1 was totally illegal; that OP-1 also never informed the complainant that he is advancing loan of Rs.1,80,000/- for the scheme on behalf of the complainant and paid the same to OP-2 without consent and permission of the complainant nor complainant was aware of this fact; that after realizing the truth, complainant decided to drop the idea of taking plot and went to OP-2 to surrender the plot but complainant was told by the concerned clerkthat surrender application will be received only when complainant clear the bank loan and get the NOC from the bank; that complainant got busy in his work thereafter and also fell sick on 23.01.2014 and recovered only on 28.01.2014 and thereafter complainant went to the office of OP-2 and made written request to surrender the plot on the ground that NOC would be submitted on the next date as he is already late in surrendering the plot; that complainant cleared the bank loan on 31.01.2014 but OP-2 issued letter on 31.03.2014 informing the complainant that amount has been forfeited; that the said letter is illegal, null and void and not binding on the complainant and OP-2 is legally bound to refund the amount of Rs.1,80,000/- to the complainant with interest; that even thereafter, complainant visited the office of OP-2 many times but with no effect and the conduct of the OPs also caused harassment and mental agony to the complainant. Hence complaint was filed for directing the OPs to refund the amount of Rs.1,80,000/-along with compensation and litigation expenses.
2. After formal admission of the complaint, notice was issued to the OPs and OP-1 appeared through counsel and filed written statement contesting the complaint on the preliminary objections that complaint is not maintainable in the present form and no cause of action has arisen to file the present complaint and the same has been filed against the Ops without taking permission from the Forum; that the OPs have not rendered any service as defined in the Consumer Protection Act and there is no deficiency in service on the part of answering OP and the same is also bad for non-joinder and mis-joinder of necessary parties. On merits, it was admitted that complainant applied for allotment of residential plot but all other allegations of the complaint were denied on the ground that answering OP had no role in the allotment of plot applied by the complainant to OP-2 as OP-2 had given advertisement for allotment of plot situated at Sugar Mill site Faridkot and complainant applied for the same. It was denied if answering OP introduced the scheme to the complainant as OP-2 launched the scheme by issuing brochure of the scheme along with terms and conditions of the allotment and complainant purchased the brochure containing descriptions of the plot and other terms and conditions of the allotment. It was denied if complainant applied for allotment on the advise and instruction of answering OP. It was asserted that complainant applied for loan and filled loan application voluntarily and signed the same after understanding and admitting its contents and answering OP sanctioned the loan on the request of complainant for payment to OP-2 and OP-2 allotted the plot after draw of lots and as such answering OP had no role to play in the scheme. All other allegations mentioned in the complaint were also denied with a prayer to dismiss the complaint with cost.
3. OP-2 also appeared through counsel and filed reply contesting the complaint on the legal objections that as per the terms and conditions of the allotment agreement between the complainant and answering OP, any dispute between the parties to be decided by the Arbitrator and complainant can only invoke arbitration proceedings that there had been no deficiency in service on the part of the answering OP nor complainant have any cause of action to file the present complaint and joint complaint against the OPs is not maintainable; that Punjab Urban Development Authority, Bathinda is necessary party but has not been made party in the complaint and as such complaint is liable to be dismissed. On merits, it was admitted that complainant applied for allotment of plot in question and was successful in the allotment. It was asserted that complainant applied for allotment of plot by raising loan from OP-1; that OP-2 issued brochure at the time of launching scheme containing all the terms and conditions of the allotment. It was admitted that answering OP issued letter of intent to the complainant requesting the complainant to deposit 15% of the total price of the plot in addition to amount already deposited at the time of filing the application for allotment of plot and as per clause 28-29 of the letter of intent, complainant was to accept the letter of intent along with 15% of the allotment price within 30 days from the date of receipt of letter of intent. Complainant did not inform OP-2 with regard to compliance of letter of intent and rather opted to cancel the allotment after expiry of 30 days and accordingly answering OP forfeited the 10% earnest money of the complainant and conveyed the same to the complainant. It was asserted that if complainant had any confusion regarding the installment of plot then complainant could have contacted the OPs and as such the plea taken by the complainant is baseless. It was asserted that the earnest money has been forfeited legally and as per the terms and conditions of the allotment, as complainant failed to comply with the terms and conditions of the allotment. All other allegations mentioned in the complaint were also denied with a prayer to dismiss the complaint with cost.
4. Parties were given proper opportunities to lead evidence and Counsel for the complainant tendered affidavit of complainant Ex C-1, Ex C-2 is copy of bank statement, Copy of letter issued by OP-2 as Ex C-3, affidavit of Angrej Singh Ex C-4 and thereafter closed evidence on behalf of the complainant. In rebuttal, Ld. Counsel for the OP-1 proved affidavit of Rakesh Kumar Chawla as Ex OP-1/1, Ex OP-1/2 is application for loan, copy of PAN Card Ex OP-1/3, Copy of Ration Card Ex OP-1/4, Copy of agreement Ex OP-1/5, Copy of letter dated 23/06/2013 Ex OP-1/6, Copy of D.P. Note Delivery Letter dated 27.06.2013 Ex OP-1/7, Copy of demand Promissory Note as Ex OP-1/8, Copy of undertaking to be given by the Applicant and the Bank Ex OP-1/9, Copy of letter dated 27.06.2013 Ex OP-1/10 and closed the evidence on behalf of the OP-1 and Ld. Counsel for OP-2 proved affidavit of Satnam Singh Bhangu, Estate Officer (PUDA) as Ex OP-2/1, Copy of application dated 28.01.2014 as Ex OP-2/2, Copy of letter dated 26.03.2014 Ex OP-2/3 and closed the evidence on behalf of OP-2.
5. We have heard the Ld. Counsel for the parties and have gone through the file.
6. Ld. Counsel for the complainant contended that Manager of OP-1 bank is known to the complainant and he introduced the scheme issued by OP-2 for allotment of plot in the Sugar Mill Site Colony raised by OP-2 and on the advise of OP-1, complainant applied for allotment of plot. He contended that OP-1 Bank Manager obtained signatures of the complainant on the application form and sent the same to OP-2 but Manager of the OP-1 bank did not disclose any term and condition of the allotment nor disclosed that OP-1 bank is subscribing any loan to the complainant for payment as earnest money for the allotment of the plot. He contended that complainant received a letter of intent dated 24.12.2013 disclosing that complainant had been successful in the allotment of plot and has been allotted a plot measuring 200 sq yards and was directed to pay 15% of the price of the plot to complete 25% price of the plot but it was not disclosed whether 15% installment is first installment or any other installment has been paid on behalf of the complainant. He contended that later on Bank Manager told the complainant that the bank has advanced Rs.1,80,000/- to the complainant for payment of earnest money to OP-2 but the advancement of the loan to the complainant by OP-1 bank was without any authority and OP-1 Bank Manager obtained the signatures of the complainant without disclosing anything in order to complete his loan target. He contended that complainant then went to the office of OP-2 for non-acceptance of plot but was told to clear the loan before surrendering the plot and thereupon complainant cleared the loan of OP-1 bank and then file application for surrendering or canceling the allotment but later on complainant received a letter Ex C-3 showing that his earnest money has been forfeited by OP-1. He contended that act of the OP-1 in advancing the loan to the complainant without disclosing this fact and without disclosing the terms and conditions of the allotment of the plot and act of OP-2 in forfeiting the earnest money vide letter Ex C-3 are illegal acts on the part of the OPs and are liable to be declared ultra wires and complaint is required to be allowed and OP-2 is required to be directed to return the earnest money along with interest and OPs should also be burdened with compensation and litigation expenses.
7. Ld. Counsel for OP-1 contended that complainant have filed the complaint on wrong facts and have concocted the story in order to escape his liability. He further contended that complainant himself came to the bank and was already knowing about scheme of OP-2 and requested the OP-1 bank to advance loan for payment of earnest money to OP-2. He contended that complainant completed all formalities and documents and rather signed agreement which was on stamp paper and as such can not argue that signatures of the complainant were obtained fraudulently and without disclosing the contents of the documents. He contended that even thereafter complainant paid the loan amount and his loan account was discharged and as such complaint is totally false and is liable to be dismissed against OP-1.
8. Ld. Counsel for OP-2 contended that complainant applied for allotment of plot and paid the earnest money through OP-1. He contended that complainant was declared successful in allotment and was issued a letter of intent dated 24.12.2013 directing the complainant to pay 15% of the price of the plot to complete 25% of the price as per terms and conditions of the scheme and allotment. He contended that as per Clause 28 & 29 of the letter of intent, the complainant was to state his acceptance or rejection within 30 days from the date of issue of the letter, otherwise earnest money shall be forfeited. He contended that complainant was even told this fact when he visited the office of OP-2 but even then complainant did not surrender the plot within 30 days and rather surrendered the plot on 28.01.2014 vide application Ex OP-2/2 i.e. after 30 days of letter of intent and as such OP-2 has rightly forfeited the earnest money of the complainant vide letter Ex C-3 dated 31.03.2014. He contended that the complainant have filed the complaint by manipulating and concocting the facts in order to escape his liability and as such complaint is liable to be dismissed with special costs.
9. After going through the record of the case and evidence led by the parties on the file and after going through the documents placed on the file, this Forum does not find force in the contention of the Ld. Counsel for the complainant. This Forum is to allow the complaint only if some deficiency in service is found on the part of the OPs. The contention of the complainant is that OP-1 bank advanced the loan without disclosing it or without any authority and without disclosing terms and conditions of the allotment of plot. The complainant is a grown up person and understand the meaning of applying for allotment of plot or for handling the bank account. OP-1 bank have proved application Ex OP-1/2, agreement Ex OP-1/5, arrangement letter Ex OP-1/6, D P Note Delivery Letter Ex OP-1/7, Demand Promissory Note Ex OP-1/8 and undertaking of the applicant Ex OP-1/9 on the file and these all documents bears the signatures of the complainant. It does not appeal to senses that complainant would sign all these documents particularly agreement which also have stamp paper if he was simply to apply for allotment of plot and complainant also signed on the stamp paper. Even a simple person knows that stamp paper are not required to be signed if one is to apply for allotment of plot and complainant also filed copy of ration card and PAN card which clearly shows that complainant filed all these documents and signed various documents fully knowing the significance of the documents. Moreover complainant must know that earnest money is to be paid for applying allotment of plot issued by some Government Agency earnest money but complainant has no where alleged in the complaint that he paid the earnest money along with the application and it clearly shows that complainant was aware of the fact that OP-1 bank is subscribing the earnest money to the complainant for allotment of plot through the scheme published by OP-2. Later on OP-2 declared the allotment of the plot and declared the complainant as the successful allottee and issued a letter of intent dated 24.12.2013 to the complainant and this fact is also admitted by the complainant. As per letter of intent, complainant was directed to pay 15% of the price of the plot to complete 25% of the price. It also shows that 10% of price of the plot stands also paid that is why payment of 15% would complete 25% price of the plot. Otherwise as per clause 28 & Clause 29 of the letter of intent, the acceptance or rejection of the allotted plot is to be made within 30 days but admittedly complainant surrendered the plot after 30 days vide letter Ex OP-2/2 and in this eventuality OP-2 has rightly forfeited the earnest money of the complainant as per terms and conditions of the letter of intent. This Forum does not find any deficiency in service on the part of the OPs. The complainant is entitled to relief under the Consumer Protection Act 1986 only if complainant proves some deficiency or defect on the part of OPs which the complainant has failed to substantiate in the complaint. In case titled Ravneet Singh Bagga Vs M/s KLM Royal Dutch Airlines and another 2000(1) Consumer Law Today 33, it was observed by Hon'ble Supreme Court of India that in the absence of the deficiency in service the aggrieved person may have remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Consumer Protection Act 1986 for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service and the burden of proving deficiency in service is upon the person who alleges it.
10. In the light of above discussion, the complaint fails and the same is hereby dismissed. However in the peculiar circumstances of the case, parties are left to bear their own costs. Copies of the order be sent to the parties free of costs. File be consigned to the record room.
Announced in open Forum:
Dated: 15.01.2015
Member Member President
(Purshotam Singla) (Parampal Kaur) (A.K.Mehta)
