DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.31 of 23-01-2015

Decided on 16-09-2015

Satwinder Singh aged about 38 years S/o Bolour Singh S/o Santa Singh R/o House No.29257, Street No.6, Janta Nagar, Bathinda.

........Complainant

Versus

1.Singla Property Adviser, SCF 25, Bharat Nagar, Shopping Complex, Bibiwala Road, Bathinda, through its Proprietor Pardeep Singla.

2.Pardeep Singla, Proprietor, Singla Property Adviser, SCF 25, Bharat Nagar, Shopping Complex, Bibiwala Road, Bathinda

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Smt. Sukhwinder Kaur, Member.

Sh.Jarnail Singh, Member.

Present:-

For the Complainant: Sh.H.S.Sidhu, counsel for the complainant.

For Opposite parties: Sh.N.K Singla, counsel for opposite parties.

ORDER

M.P Singh Pahwa, President:-

1. The complainant Satwinder Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Singla Property Adviser and Other (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that opposite parties are dealing in sale and purchase of plots, kothi, shop, agriculture/commercial land and extending To-let service. On the allurement of opposite party No.1, the complainant booked one plot No.30 measuring 93.33 sq. yards under scheme proposed Silver Oaks Township City-1(Ext.), Bibiwala Road, Bathinda against the price of Rs.8975/- per sq. yards. On 15.5.2013, the complainant paid installment of Rs.2,09,000/- and balance payment was to be paid to opposite parties on 31.12.2013 at the time of handing over the developed plot to the complainant by them.

3. It is alleged that the complainant was ready to pay the balance amount and approached opposite parties to handover the possession of the plot against payment of balance amount, but opposite parties showed their inability to handover the possession of plot and extended the date of balance payment and handing over the possession to 28.2.2014. Opposite parties continued to extend the date upto 30.3.2014. The complainant paid Rs.2,09,000/- to opposite parties on 25.3.2014 and period for balance payment was extended to 15.5.2014, 15.7.2014, 30.9.2014, 31.12.2014 and 31.1.2015. Opposite parties also failed to develop the plot by the due date and to handover the possession of plot to the complainant against receipt of balance and continued to extend the date. The complainant has deposited the abovesaid amount with opposite parties by taking the loan from the bank and has to pay the interest on the loan amount and has to repay the loan amount by regular EMI and has to suffer financial loss in view of the act and conduct of opposite parties.

On this backdrop of the facts, the complainant has alleged deficiency in service and unfair trade practice on the part of opposite parties and prayed for directions to opposite parties to refund the amount of Rs.4,18,000/- alongwith interest @ 18% per annum from the date of payment and to pay Rs.1 lac on account of harassment and Rs.11,000/- on account of litigation expenses. Hence, this complaint.

4. Upon notice, opposite parties appeared through counsel and contested the complaint by filing their joint written version. In written version, opposite parties raised the preliminary objections that complainant has no locus-standi to file the present complaint against them. The claim of the complainant is baseless, non-est and contrary to the settled principles of law. The complaint has been filed on the basis of totally false, baseless and concocted facts. The complaint is a case of abuse of process of this Forum. This complaint is not maintainable as the complainant has not come to this Forum with clean hands and has concealed the material facts. This Forum has no jurisdiction to entertain, try and decide this complaint. The complaint is time barred. The complaint is bad for non-joinder of necessary parties and mis-joinder of opposite parties as Silver Oaks Township Limited is owner of the land of township named Silver Oaks Township City-1 (Ext.). The land owner has authorized opposite parties to book the plots, as per company's conditions. As such, opposite parties are doing the work merely as agent of Silver Oaks Township. This complaint is devoid of any cause-of-action as the complainant has neither suffered any loss nor has been able to point out any illegal demand sent by opposite parties, as such the complainant does not come within the purview of 'Act'. That the proper court fee was not affixed on complaint. As such, the complaint deserves dismissal on this score only.

5. On merits, it is pleaded that opposite parties have valid licence regarding the abovesaid business. The booking of the plot and first and second installment's payment are not denied. Opposite parties denied all other averments. It is pleaded that the complainant himself approached opposite parties and requested them to book the plot in Silver Oaks Township City-1 (Ext.) and on his request, opposite parties booked the plot and issued letter regarding the booking of plot. It was agreed between the opposite parties and complainant that the complainant will pay the second installment on or before 31.12.2013, but he had showed his inability to deposit the second installment. As such, on the request of the complainant, the period for second installment was extended firstly for 28.2.2014 and then for 30.3.2014. On 25.3.2014, the complainant deposited the second installment and on that date it was agreed between the parties that the complainant will deposit the next installment/remaining payment of the plot on 15.5.2014 or as on work completed, but on 13.5.2014, the complainant approached opposite parties and requested them to extend the time and on his request, the time was extended till 30.9.2014 and then for 30.12.2014 and 31.1.2015. It is denied that opposite parties assured the complainant that the possession of the plot will be handed over to him on 31.12.2013. It is further stated that the complainant never approached with remaining balance amount, rather he himself requested opposite parties for extension of time, as such opposite parties extended the time as per his wish. Despite this, the complainant has filed this false, frivolous complaint just to extort money from opposite parties.

6. It is also pleaded that the plot in question was booked subject to the terms and conditions of Silver Oaks Township City-1 (Ext.) i.e. company. As per these terms and conditions, the company has every right to modification/alteration with reference to actual measurement of plot and cost/purchase amount of the plot shall be constructed accordingly. Despite this, on 18.1.2015 the complainant himself refused to pay further amount to opposite parties and requested them to repay the deposited amount due to variation in plot measurement. Opposite parties are not bound to repay the amount deposited by the complainant as per agreement, despite this opposite parties admitted the request of the complainant and agreed to repay the deposited amount after 3 months i.e. on 18.4.2015. Therefore, opposite parties had never on fault. As such, the complaint deserves dismissal.

After controverting all the material averments, opposite parties have prayed for dismissal of complaint.

7. Parties were afforded opportunities to produce evidence.

8. In support of his version, the complainant tendered into evidence his own affidavit dated 24.4.2015, (Ex.C1); photocopy of deal, (Ex.C2); photocopy of schedule, (Ex.C3); photocopies of receipts, (Ex.C4 to Ex.C11) and submitted the written arguments.

9. Opposite parties tendered into evidence affidavit of Pardeep Singla dated 22.6.2015, (Ex.OP1/1); photocopy of transfer allotment letter; (Ex.OP1/2); photocopy of authority letter, (Ex.OP1/3); photocopy of certificate of registration; (Ex.OP1/4) and photocopy of backside of Ex.C2, (Ex.OP1/5) and closed the evidence.

10. We have heard learned counsel for parties and have gone through the written arguments.

11. Learned counsel for complainant has reiterated his averments as taken in the complaint and as detailed above. It is further submitted by learned counsel for complainant that opposite parties have denied their liability to refund the amount. In written version, opposite parties agreed to refund the amount within 3 months i.e. on 18.4.2015, this fact itself shows that there is deficiency in service and unfair trade practice on their part. Otherwise, opposite parties were having no reason to agree to refund the amount. It is also submitted that although, the second installment was to be paid on 31.12.2013, but writing relied upon by opposite parties also proves that the time was extended due to delay in development and this time was extended up to 31.1.2015. This fact also proves that there was no development even after expiry of more than one year. Opposite parties have retained the amount of the complainant without any justification. The complainant has placed on record documents, which proves that he has availed the loan from the bank for the payment of the amount to opposite parties. The complainant paid this amount to the bank with interest. As such, the complainant is also entitled for recovery of interest amount from opposite parties on account of deficiency in service.

12. On the other hand, learned counsel for opposite parties has submitted that the complaint is abuse of process of law. From the facts alleged in the complaint, the complainant does not come within the definition of consumer. The remedy, if any is from Civil Court only. The complainant has relied upon letter of deal, (Ex.C2). As per this letter, the complainant agreed to purchase the plot from Silver Oaks Township City-1(Ext.). Therefore, Silver Oaks Township City-1(Ext.) was the necessary party. Opposite parties have worked only as an agent of company. The authority letter, (Ex.OP1/3) proves that opposite party No.1 was authorized to book the plot in Silver Oaks Township City-1(Ext.) as per company terms and conditions. In these circumstances, the relief, if any was available to the complainant, only from the company and not from opposite parties.

13. It is further submitted by learned counsel for opposite parties that as per the letter of deal, (Ex.C2), the next installment was due on 31.12.2013. The complainant has pleaded in Paragraph 3 of complaint that he is ready to pay the balance amount, but at the same time the complainant has stated that he has deposited the amount by taking the loan from the bank. This fact itself proves that the complainant was not ready and willing to make the remaining payment to opposite parties. Therefore, the complainant got extended the time again and again. The complainant has relied upon the letter of deal, (Ex.C2), but on the backside of this letter it is mentioned that 'if the size and location of plot will vary, then the payment will be refunded after 3 months', which shows that opposite parties have not refused to refund the payment and the complainant instead of waiting for 3 months, has preferred to file this complaint. Opposite parties have also placed on record draft of allotment letter, (Ex.OP1/3). As per Condition No.3, if the area of the plot is subject to modification/alteration with reference to the actual measurement of plot and cost/purchase amount of plot shall be calculated accordingly. Therefore, the deal was not to cancel only for the modification/alteration of actual measurement. The complainant has failed to make the payment as per schedule. Now, the complainant is claiming refund of the amount, which is not permissible as per the terms and conditions. From all angles, the case of the complainant is not proved. As such, this complaint be dismissed.

14. We have given careful consideration to these submissions.

15. Admitted facts are that the complainant paid an amount of Rs.2,09,000/- to opposite parties on 15.5.2013, receipt (letter of deal, Ex.C2) proves this fact. As per this letter, opposite parties received this amount under scheme proposed Silver Oaks Township City-1(Ext.). Although, as per opposite parties, they have worked only as an agent of Silver Oaks Township Limited Company, but there is nothing on record to prove that this amount was paid by opposite party No.1 to Silver Oaks Township Limited Company in favour of the complainant. There is nothing on record to prove that any contract was executed between the complainant and Silver Oaks Township Limited Company. As such, Silver Oaks Township Limited Company is not considered necessary party. Opposite party No.1 has not denied the receipt of Rs.2,09,000/- from the complainant. Opposite parties have not produced any document/evidence to prove that they have deposited this amount with Silver Oaks Township Limited Company on behalf of complainant. Although, as per document, (Ex.C2) the balance amount was to be paid on or before 31.12.2013, but date of payment was extended from time to time. Firstly, up to 28.2.2014 and then up to 30.3.2014. On 25.3.2014, opposite parties received an amount of Rs.2,09,000/- and date was again extended up to 15.5.2014 as work was not completed. The date was extended from time to time only for the reason that there is delay in work. Therefore, the documents relied upon by opposite parties also show that the delay was only for the reason that the development work was delayed. Vide writing dated 18.1.2015, opposite parties have also admitted that 'if the size and location of plot will vary, then the payment will be refunded after 3 months', which is also pleaded in the written version. In this way, opposite parties have not denied their liability to refund the amount of the complainant. Despite this fact, opposite parties have failed to refund the amount.

16. Keeping in view the reasons recorded above, it is proved that there is deficiency in service on the part of opposite parties. As such, the complaint is partly accepted with Rs.4000/- as cost and compensation against opposite parties. Opposite parties are directed to refund an amount of Rs.4,18,000/- (Rs.2,09,000/- + Rs.2,09,000=Rs.4,18,000/-) alongwith interest @ 15% per annum from the date of deposit till the date of refund.

17. The compliance of this order be made within 6 weeks from the date of receipt of the copy of this order.

18. This case could not be decided within the statutory period due to heavy pendency.

19. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

Pronounced in open Forum:-

16-09-2015

(M.P Singh Pahwa)

President

(Sukhwinder Kaur)

Member

(Jarnail Singh)

Member