Chandigarh

DF-I

CC/567/2020

A.P Duggal - Complainant(s)

Versus

The Chief Executive officer-cum-Secretary H.P Housing and Urban Development Authority - Opp.Party(s)

Vikrant Duggal

01 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/567/2020
Date of Institution	:	02/12/2020
Date of Decision	:	01/02/2024

 

A.P. Duggal s/o Late Dharam Paul Duggal resident of Flat
No.C-42, Sector 48-B, IInd Floor, Chandigarh.

… Complainant

V E R S U S

The Chief Executive Officer-cum-Secretary H.P. Housing and Urban Development Authority (HIMUDA) Nigam Vihar, Shimla-171002 (H.P).

… Opposite Party

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Vikrant Duggal,  Advocate for complainant
	:	Ms.Vasundhra Asija, Advocate Proxy for Sh.Shashank Bhandari, Advocate for OP

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by A.P.Duggal, complainant against the aforesaid opposite party (hereinafter referred to as the OP).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that in the year 2006, OP vide advertisement, published in various newspapers, offered allotment of freehold residential plots at Mandhala, Baddi (HP) and in pursuance to the same, complainant had applied for allotment of category type III plot measuring 200 sq.meter by depositing the earnest money to the tune of ₹88,000/- on 22.9.2006 and submitted application form with the OP for allotment of a plot. The OP issued allotment letter dated 8.5.2007 (Annexure C-2) after declaring the complainant as successful in the draw of lots.  As per clause 3 of the allotment letter, complainant was asked to deposit the first installment @ 15% of the tentative cost amounting to ₹1,32,000/- within thirty days of the issuance of the letter in favour of the OP failing which penal interest @ 14% shall be charged. Vide another letter dated 2.8.2007, complainant was allotted type III plot No.C-72 measuring 200 sq. meter (hereinafter referred to as “subject plot”) in the housing colony at Mandhala at tentative sale price of ₹8,80,000/-.  Thereafter, as per the payment schedule and instructions of the OP, complainant made payment and thereby deposited total sum of ₹8,00,000/- on different dates with OP vide receipt/cheques/draft (Annexure C-3 colly.).  Thereafter, OP further issued letter dated 28.9.2011 (Annexure C-4) to the complainant where the final cost of the plot was assessed as ₹10,55,000/- and asked him to deposit an amount of ₹1,75,000/- in lump sum within 45 days as final cost of plot and to complete the other formalities. On receiving the said letter from the OP, complainant and his family members visited the site and they were surprised to find that the development work was still going on the spot and there was lack of basic facilities as promised by the OP.  The complainant deposited the aforesaid amount of ₹1,75,000/- with the OP vide receipt/cheque (Annexure C-5) and in this manner the complainant had paid total amount of ₹10,55,000/- to the OP.  Vide letter dated 28.9.2011, OP misrepresented the complainant that the development work/basic amenities of the project are already complete and the plot is ready for possession.  However, when the complainant again visited the spot after receiving the said letter, it was found that no development work was at the site with respect to erection of electricity pole, parking, construction of roads, sewerage etc.  Even in the said letter dated 28.9.2011, OP did not mention the date of completion, occupation certificate and status of work regarding the project.  As per the brochure, OP was bound to complete all the development works like roads, paths, water supply, sewerage, electricity supply etc. before handing over possession to the allottees, but, nothing had been done by the OP at site. As per information and knowledge of the complainant, work of sewerage was completed in the year 2013.  In this manner, as the OP had offered possession without completing the development work on the spot, the aforesaid act of the OP amounts to deficiency in service and unfair trade practice, as offering the possession to the allottee before completion of the development works has been held to be deficiency in service and unfair trade practice by the Hon’ble Apex Court as well as by the Hon’ble National Commission in various judgments. As the complainant has already deposited the full and final cost of the plot i.e. ₹10,55,000/- with the OP and till date the OP has not delivered the possession of the subject plot to the complainant, rather the OP has been demanding balance payment/ penal interest, service tax and watch and ward charges vide demand letters (Annexure C-7 Colly.), the aforesaid act of the OP amounts to deficiency in service and unfair trade practice. OP was requested several times to admit the claim, deliver the physical possession of the subject flat, pay interest 14% per annum on the amount deposited and to refund the amount of ₹1,903/- alongwith interest and compensation etc., but, with no result.  Hence, the present consumer complaint.
2. OP resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, jurisdiction, limitation and estoppel. On merits, admitted that the subject plot was allotted to the complainant and the deposit of cost of the subject plot by the complainant with the OP has also not been disputed.  It is denied that there was no facility of electricity, water and sewerage as more than hundred allottees have already constructed their houses on their respective plots and have been residing there and none of them has raised any issue qua the development of the work on the spot and the complainant has filed a false and frivolous complaint against the OP.  It is further denied that the OP has not delivered the possession of the subject plot to the complainant as per the final allotment letter dated 29.11.2011, rather it is the complainant who was required to execute the conveyance deed after making full and final payment to the OP and to complete all the codal formalities, as has been prescribed in the final allotment letter dated 28.9.2011 (Annexure C-4) and the complainant himself has failed to complete the said formalities.  In fact, every allottee was required to take over possession within 45 days from the issue of the final allotment letter, failing which he was required to pay penal interest on delayed amount as prescribed in the brochure. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the OP had allotted the subject plot to the complainant vide allotment letter (Annexure C-2) on payment of an amount of ₹8,80,000/- and vide final allotment letter (Annexure C-4) further an amount of ₹1,75,000/- was demanded from the complainant as full and final cost of the subject plot, which was assessed to ₹10,55,000/- and the said amount was also deposited by the complainant with the OP and vide Annexure C-4, complainant was also asked to take possession of the subject plot on completion of certain formalities i.e. to submit documents including non-judicial stamp paper to the tune of ₹52,750/- for the execution  of the conveyance deed within 45 days of payment of ₹1,75,000/- and till date complainant has not completed the said formalities nor submitted the aforesaid documents with the OP, the case is reduced to a narrow compass as it is to be determined if the OP is unjustified in handing over the actual physical possession of the subject plot to the complainant as the development work was not completed on the spot by the OP within the prescribed period and the aforesaid act amounts to deficiency in service and unfair trade practice and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the complainant himself has not complied with the terms and conditions of the allotment letter as well as conditions mentioned in the brochure and the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the OP.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the documents submitted by both the parties i.e. brochure (Annexure C-6), provisional allotment letter (Annexure C-2) and the final allotment letter (Annexure C-4) and the same are required to be scanned carefully for determining the real controversy between the parties.
   3. Perusal of the provisional allotment letter (Annexure C-2) indicates that in pursuance to the application filed by the complainant with the OP, one type-III plot under Ex-serviceman category was allotted to the complainant and he was asked to deposit the first installment @ 15% i.e. ₹1,32,000/- of the tentative cost of ₹8,80,000/- within 30 days from the date of issue of the letter.  Admittedly the said amount was deposited by the complainant alongwith other installments as per the payment plan, as is also evident from receipts (Annexure C-5 colly.) and is also not disputed by the OP.
   4. Annexure C-4 is the final allotment letter which indicates that the plot No.C-72 i.e. the subject plot was allotted to the complainant and he was asked to pay the difference amount of the tentative cost and the final cost to the tune of ₹1,75,000/- and further to complete certain formalities within 45 days from the issuance of the letter failing which watch and ward charges alongwith penal interest on delayed payment shall be payable by him.  The relevant paras of aforementioned letter are reproduced below for ready reference :-

“3.    Final cost of the plot has been worked out and you are required to pay the same as under:-

(i) Tentative cost at the time of allotment	Rs.8,80,000/-
(ii) Final cost	Rs.10,55,000/-
(iii) Amount received till date against cost	Rs.8,80,000/-
(iv) Choice Money, if any paid	Rs.Nil
(v) Amount received towards penal interest	Rs.416/-
(vi) Difference between tentative and final cost.	Rs.1,75,000/-
(vii) Amount still outstanding towards penal interest.	Rs.Nil
(viii) Total amount payable against full & find cost within 45 days	Rs.1,75,000/-

4.     Possession of the plot will be given to you after payment of amount mentioned against Sr.No.3 (viii) above and execution of conveyance deed by attending this office on any working day for which the following documents are to be brought alongwith:

(i). Conveyance Deed will be executed on Rs.52,750/- worth of non judicial stamp papers to be purchased from any Treasury in Himachal Pradesh in your name. 20 Nos. judicial papers of one rupee each are required. Typing facility is available in this office on cash payment of Rs.200/-. Three copies of layout plan to be attached with the conveyance deed are also available for sale at a price of Rs.300/-.

(ii) One witness is to be required at the time of execution of Conveyance Deed.

(iii) Three copies of this office allotment letter and this letter be got photo stat.

5.     In case formalities at para-3 & 4 above are not completed within 45 days, you will be liable to bear penal interest on delayed payments and watch & ward charges as prescribed under clause 20 (vi) of the brochure.

6.     After completion of formalities as mentioned under para-3 & 4 above, you will be issued a formal possession letter according to which you have to take over possession of the plot within 30 days from the Assistant Engineer, HP Housing & Urban Authority, Sub Division No.II. Baddi, Distt. Solan, HP.

5. Annexure C-6 is the brochure having been produced and relied upon by the complainant, which specifically mentions certain conditions, which are to be fulfilled by the allottee before the possession is offered to him, and the relevant portion of the general conditions is reproduced below for ready reference :-

“(vi) The allottee shall execute the Conveyance Deed with Himachal Pradesh Housing and Urban Development Authority within such period, as may be prescribed before taking over possession of the plot and Conveyance deed shall be signed by him after the recovery of full cost of the property including the amount of interest by the Authority.

(vii)  The possession of the plot shall be handed over on receipt of the dues, documents and on fulfillment of conditions, stipulated in the allotment letter. If physical possession is not taken over at site within 45 days of the issue of the possession letter, the allottee shall pay watch & ward charges @ 0.1% of the final cost per month. If allottee fails to take over the possession within 3 months (after expiry of 45 days as mentioned above), watch & ward charges @0.2% per month will be recoverable beyond three months. In case allottee fails to take over possession within one year, the allotment will be liable to be cancelled. For calculation of watch & ward charges period of 45 days mentioned in the letter offering possession shall not be counted.”

6. Annexure C-7 (Colly./page 71) is the letter dated 16.8.2013 issued by the OP to the complainant through which he was again asked to pay penal interest on the delayed payment as he had not complied with the final allotment letter (Annexure C-4) i.e. not deposited the balance cost in order to execute the conveyance deed and to take over possession within 45 days from the issuance of the subject letter.  Annexure C-7 (Colly./page 73) is another letter dated 4.5.2016 issued by the OP to the complainant through which he was asked to pay the balance amount alongwith service tax etc. and get the conveyance deed executed. 
7. Annexure C-8 (colly.) are the applications/letters sent by the complainant to the OP through which he sought time to complete the formalities for seeking possession and execution of the conveyance deed on account of his surgery with the request that the conveyance deed be delivered to his son.
8. Thus, one thing is clear from the above that, in fact, it is the complainant who had sought time from the OP for execution of conveyance deed as well as for taking over possession of subject plot by submitting written applications/letters (Annexure C-8 colly.) and sought time for taking over possession and execution of conveyance deed on the ground of his health issue. Thereafter, complainant had sent certain application to the OP asking to supply intimation about the rules under which the complainant had been asked to execute the conveyance deed before taking over possession and also that the OP had wrongly imposed penal interest, which is not payable by him.
9. The learned counsel for the complainant contended with vehemence that as it stands proved on record that the development work was not completed by the OP on the spot and despite of the fact that the entire payment was made by the complainant to the OP and the OP has wrongly asked the complainant to get the conveyance deed executed before handing over possession of the subject plot, the said act of the OP amounts to deficiency in service and unfair trade practice.
10. On the other hand, learned counsel for the OP contended with vehemence that as it is an admitted case of the parties that the subject plot was allotted to the complainant under the ex-servicemen category and even as per the allotment letter and brochure, the terms and conditions for taking over possession by the allottee on submission of certain documents including stamp papers, has to be fulfilled by the allottee with the OP, which were explained to the complainant even in the brochure as well as in the allotment letter, and as it is the complainant who himself has not come forward to complete the said formalities, as specifically mentioned in the final allotment letter (Annexure C-4) as well as brochure (Annexure C-6), there is no deficiency in service or unfair trade practice on the part of the OP, especially when more than hundred allottees have already raised construction and the complainant did not approach the OP after 2013 and has filed the present false consumer complaint only in the year 2020, the consumer complaint be dismissed with costs.
11. As it is an admitted case of the parties that, till date, the subject plot has not yet been cancelled by the OP on account of non fulfilment of certain conditions/ formalities, as prescribed in the allotment letter as well as brochure, which the complainant has also not disputed, it is clear that it is the complainant who himself has sought time from the OP vide request letters (Annexure C-8 Colly.) for taking over possession and execution of conveyance deed on account of his surgery and even after seeking time when the said formalities were not completed, he started asking the OP to submit details regarding the project only on 23.7.2020 i.e. after few years, as is also evident from the letter (Annexure C-8 colly. at page 79).  However, when it has come on record that the allotment of the subject plot has not been cancelled by the OP and there is specific clause that in case the allottee fails to deposit the outstanding amount within the stipulated period, he shall be liable to pay penal interest and further has come on record that the complainant has not deposited the same after 2016, till date, the conveyance deed of the subject plot can be executed on payment of said penal interest by the allottee/complainant on completion of certain formalities contained in allotment letter and brochure and the complainant is certainly entitled to the relief to that extent.
12. So far as the case of the complainant for taking over possession of the subject plot is concerned, as both the parties are bound by the terms and conditions set out in the allotment letter (Annexure C-4) and brochure (Annexure C-6), OP is bound to hand over possession of the subject plot to the complainant immediately on completion of the formalities i.e. deposit of requisite non judicial stamp papers, outstanding amount, penal interest etc., if any, and on execution of the conveyance deed.
13. However, complainant is certainly not entitled for interest on the deposited amount, especially when it stands proved on record that it is the complainant who himself has not complied with the terms and conditions of the allotment letter as he has neither deposited the requisite non judicial stamp papers nor the outstanding amount, which further shows that the complainant himself has not performed part of his agreement.  Hence, OP cannot be penalized for the faults of the complainant due to which neither the conveyance deed could be executed nor the possession could be taken over by the complainant.
14. Before parting it is pertinent to mention here that no doubt the OP has resisted the claim of the complainant on the ground that the consumer complaint is barred by limitation, but, since it stands proved on record that the subject plot is still intact and the complainant has approached the OP for possession as well as execution of the conveyance deed, therefore, on account of the recurring cause of action from the date when it was allotted to the complainant till the filing of the instant consumer complaint, it is unsafe to hold that the consumer complaint of the complainant is barred by limitation.

4. In the light of the aforesaid discussion, the present consumer complaint partly succeeds, the same is hereby partly allowed and the OP is directed as under :-
   1. to immediately execute the conveyance deed and hand over possession of the subject plot to the complainant within forty five days from the date of completion of the formalities i.e. deposit of requisite non judicial stamp papers, outstanding amount, penal interest etc., if any, by the complainant.  However, in view of the divided success of the consumer complaint, parties are left to bear their own costs. 
5. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

01/02/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Surjeet Kaur] Member
	Sd/- [Suresh Kumar Sardana] Member