Punjab

Faridkot

CC/16/295

Saurabh Garg - Complainant(s)

Versus

The Chief Secretary Local Body - Opp.Party(s)

H.S.Sandhu

27 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :       295

Date of Institution:   14.10.2016

Date of Decision :    27.07.2017

Saurabh Garg aged about 30 years s/o Bhushan Garg, r/o 2A, Mall Road, Ludhiana, Tehsil and District Ludhiana.   

                                           .......Complainants

Versus

1. The Chief Secretary, Department of Local Body, Sector 9, Chandigarh.
2. The E.O. Department of Improvement Trust, Kotkapura Faridkot.
3. The Chairman, Improvement Trust, Kotkapura District Faridkot.

                     ....OPs

           Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh Ajit Aggarwal, President,

Sh P Singla, Member.

 

Present:      Sh  H S Sandhu, Ld Counsel for complainant,    

                  Sh Iqbal Kaushal, Ld Counsel for OP-2 and 3,

                   OP-1 Exparte.

                  

ORDER

(Ajit Aggarwal, President)

                                        Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to refund the amount deposited with them alongwith interest and to pay Rs.50,000/- as compensation for mental agony and harassment and financial loss to complainant besides litigation expenses of Rs.11,000/-.

2                                            Briefly stated, the case of the complainant is that Ops gave advertisement for auction of shops under Guru Teg Bahadur Vikas Scheme near Ram Bagh, Kotkapura in easy instalments. Auction held on 22.12.2011 at the office of Improvement Trust, Kotkapura. Complainant participated in that bid and vide resolution dt 24.01.2012, complainant was supplied with allotment letter for shop no.36.  OPs assured complainant that market would be developed with all basic facilities like water, sewerage, pacca roads, lighting, drainage system etc to give good look. Complainant fell into trap of Ops by their false promises and in accordance of terms and conditions, complainant deposited Rs.1,16,250/- i.e 1/4^th of total amount on the spot and remaining amount was to be deposited in five equal instalments. Complainant duly paid the four instalments to OPs but did not pay the amount for fifth instalment as during the course of making payment of four instalments to OPs, complainant kept requesting the OPs to develop the market, but there are not signs of any development at that place. Instead of developing the market, OPs even did not remove the huge dumps of waste garbage lying over that spot. Moreover, Ops have not supplied all the basic facilities at the site as installation of sewerage treatment plant has not been done there. Even after completion of five years, OPs have not initiated even a single step to make development for making market at that place. Repeated requests made by complainant to OPs to develop the market at that place have bore no fruit, which amounts to deficiency in service and trade mal practice on the part of Ops. Complainant also issued legal notice to OPs requesting them to develop the market, but all in vain and they did not pay any heed to listen to his requests. All this amounts to deficiency in service on the part of Ops and has caused great tension, harassment and mental agony to them for which they have prayed for seeking directions to OPs to refund the amount deposited with them alongwith interest and to pay Rs.50,000/- as compensation for mental agony and harassment and financial loss to complainant besides litigation expenses of Rs.11,000/-. Hence, the  present complaint.

3                                                         The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 18.10.2016, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                                    Notice of complaint alongwith relevant documents was issued to OP-1 through RC AD, which received back in office. No body appeared on behalf of OP-1 on date fixed either in person or through counsel to defend the allegations levelled by complainant. Statutory period expired, therefore, vide order dated 22.11.2016, Op-1 was proceeded against exparte.

5                                            On receipt of notice, OP-2 and 3 appeared in Forum through Counsel and filed reply wherein admitted that auction notice was issued by them and complainant participated in that, however, they have denied all the allegations of complainant being wrong and incorrect and asserted that they never assured complainant regarding provision of any basic facilities at that place. It is averred that shops are situated in already fully developed area of city and all basic amenities have already be available at that place. Further averred that as per conditions no.3 of the Auction Notice, the property is to be sold, as it was lying at the spot and in that  condition. It is asserted that all the terms and conditions of the auction notice were read over and fully explained to all the auction bidders and all the other persons present on that spot and complainant after fully understanding and going through the terms and conditions of the auction notice, purchased the shop in question in that auction. Ops admitted before the Forum that complainant had deposited 1/4^th amount at the time of auction and also deposited 4 instalments with them, but he has failed to pay the fifth instalment. Complainant has been issued several letter and reminders to deposit the remaining amount, but he did not pay the fifth instalment. Complainant has not complied with the terms and conditions of the auction notice and therefore, last notice was issued to complainant asking him to deposit the fifth instalment, failing which his allotment would be cancelled and on receiving the said notice, instead of making payment of remaining amount, he has filed the present complaint wherein he has concocted a false story regarding non development at the site. It is further averred that complainant himself has not complied with the terms and conditions of the notice and levelled false allegations against them. It is reiterated that there is no deficiency in service on the part of OPs and prayed for dismissal of complaint with costs.

6                                        Parties were given proper opportunities to prove their respective case. Ld counsel for complainant tendered in evidence affidavit of complainant as Ex C-1 and documents Ex C-2 to 16 and closed the same.

7                                   In order to rebut the evidence of the complainant, ld Counsel for OPs tendered in evidence affidavit of Satinder Pal Singh as Ex OP-1 and documents Ex OP-2 to 6 and then, closed the evidence.

8                                       We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents placed on the file.

9                                          Ld Counsel for complainant has argued that Ops gave advertisement for auction of shops under Guru Teg Bahadur Vikas Scheme near Ram Bagh, Kotkapura in easy instalments. Auction held on 22.12.2011 at the office of Improvement Trust, Kotkapura. Complainant participated in that bid and vide resolution dt 24.01.2012, complainant was supplied with allotment letter for shop no.36.  OPs assured complainant that market would be developed with all basic facilities like water, sewerage, pacca roads, lighting, drainage system etc to give good look. Complainant fell into trap of Ops by their false promises and in accordance of terms and conditions, complainant deposited Rs.1,16,250/- i.e 1/4^th of total amount on the spot and remaining amount was to be deposited in five equal instalments. Complainant duly paid the four instalments to OPs but did not pay the amount for fifth instalment as during the course of making payment of four instalments to OPs, complainant kept requesting the OPs to develop the market, but there are no signs of any development at that place. Instead of developing the market, OPs even did not remove the huge dumps of waste garbage lying over that spot. Moreover, Ops have not supplied all the basic facilities at the site as installation of sewerage treatment plant has not been done. Even after completion of five years, OPs have not initiated even a single step to make development for making market at that place. Repeated requests made by complainant to OPs to develop the market at that place have bore no fruit. Complainant also issued legal notice to OPs requesting them to develop the market, but all in vain and they did not pay any heed to listen to his requests, which amounts to deficiency in service and has caused great harassment and mental agony for which he has prayed for seeking directions to OPs to refund the amount deposited with them alongwith compensation and litigation expenses.

10                                       Ld Counsel for OPs argued  and admitted before the Forum that auction notice was issued by them and complainant participated in that, but they have denied all the other allegations of complainant being wrong and incorrect and asserted that they never assured complainant regarding provision of any basic facilities at that place. It is averred that shops are situated in already fully developed area of city and all basic amenities have already be available at that place. Further averred that as per conditions no.3 of the Auction Notice, the property is to be sold, as it was lying at the spot and in that  condition. It is asserted that all the terms and conditions of the auction notice were read over and fully explained to all the auction bidders and all the other persons present on that spot and complainant after fully understanding and going through the terms and conditions of the auction notice, purchased the shop in question in that auction. Ops admitted before the Forum that complainant had deposited 1/4^th amount at the time of auction and also deposited 4 instalments with them, but he has failed to deposit the fifth instalment. Complainant has been issued several letter and reminders to deposit the remaining amount, but he did not pay the fifth instalment. Complainant has not complied with the terms and conditions of the auction notice and therefore, last notice was issued to complainant asking him to deposit the fifth instalment, failing which his allotment would be cancelled and on receiving the said notice, instead of making payment of remaining amount, he has filed the present complaint wherein he has concocted a false story regarding non development at the site. It is further averred that complainant himself has not complied with the terms and conditions of the notice and levelled false allegations against them. It is reiterated that there is no deficiency in service on the part of OPs and prayed for dismissal of complaint with costs.

11                                                From the careful perusal of record and documents placed on record by respective parties, it is observed that case of complainant is that on assurance of Ops that they would provide all the basic amenities and develop a good market, complainant purchased a shop from OPs and paid 1/4^th of total consideration as earnest money and he was to pay the remaining amount in five equal instalments, out of which complainant paid the four instalments and payment of fifth instalment is not made by him to OPs as he made several requests to OPs to develop the market and provide all the basic amenities at site as per their promise, but instead of paying heed to his requests, OPs threatened him for cancellation of his allotment, which amounts to deficiency in service. On the contrary, stand of OPs is that despite notice and reminders issued by them, complainant has not made payment of fifth instalment and has no complied with the terms and conditions of auction letter though it is admitted by them that complainant has paid 1/4^th amount of sale consideration at initial stage and has also paid four instalments towards price of shop but has not paid the last instalment to OPs. Other allegation are denied. it is denied that they have made any promise to provide any civil facilities and amenities. The area where shops are situated is already fully developed and all the amenities are provided.

12                                    Complainant has relied upon document Ex C-7,that clearly proves the fact that complainant has paid the amount of Rs1,16,250/-i.e 1/4^th of total sale consideration on 22.12.2011, receipts Ex C-8 and C-9 prove that complainant has made payment of four instalments to OPs. Ex C-16 is report given by Local Commissioner, who inspected the spot and checked about the basic amenities provided by Ops at that place that justifies the allegations of complainant that there are no signs of development at that place and there is no water storage tank and residents living there have arranged water pipe lines at their own and there is water supply provided by Ops at that place. Place in question has become shelter for stray animals like cows and dogs and even people of nearby area throw their dirty garbage in front of shop market and there is no proper arrangement of water and sewerage system at that place. Ex C-2 is the legal notice issued by complainant to Ops requesting them to develop the market with all required basic amenities. Through affidavit Ex C-1 complainant has reiterated his pleadings.

13                                        From  it, it is clearly proved that they have not provided basic amenities to complainant. The ld counsel for OPs further argued that complainant has not paid the entire price of shop in dispute. He has paid only four instalments out of five and failed to make payment of 5^th instalment. On it, the ld counsel for complainant argued that as OPs have failed to fulfil their part of contract and develop the land in question on the spot as per agreement, so, they cannot claim the balance price. He has put reliance on citation  2015 (3) Consumer Law Today, 48 titled as EMAAR MGF Land Ltd and anr Vs Dilshad Gill, wherein our Hon’ble National Commission, New Delhi has observed that “ Consumer Protection Act, 1986, Section 2 (i) (g)- Housing Construction–Delay in possession by appellant/Builder- Complainant/respondent defaulted in payment- Held- Appellants themselves have violated the material conditions with regard to handing over of the possession, now, it does not lie in their mouth to demand further payment from the respondent-The respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period. Hon’ble National Commission decided that if OPs have failed to hand over the possession in time, then, they can not demand further payment from the complainant.

14                                                 The Ops argued that as the shop in question was auctioned on 22.12.2011 and complainant has filed the present complaint on October, 2016, as such, the complaint is time barred and deserves dismissal. On the issue of limitation, ld counsel for complainant argued that complainant purchased the shop in question in auction in December, 2011 and paid 4^th  instalment on 7.10.2014. Thus, present complaint is within limitation. However, the cause of action to file the present complaint is recurring one and arose day to day as OPs failed to fulfil their promise to develop the site. He has placed reliance on citation 2015 (3) Consumer Law Today, 16 titled as Satish Kumar Pandey & anr Vs M/s Unitech Ltd wherein our Hon’ble National Commission, New Delhi observed as Consumer Protection Act, 1986, Sections 2 (1) (g),  2 (1) (o) & 24 A -Housing Construction –Limitation – Delay in construction and possession by the builder – Plea of OP that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24 – A – Held - it is by now settled legal proposition that failure to deliver possession being a continuous wrong, it constitutes a recurrent cause of action and therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum-it is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24-A of the Consumer Protection Act would began to run-In that case the complaint has be to filed within two years from the date on which the seller refuses to deliver possession to the buyer.

15                                                 In the light of above discussion, this Forum is of considered opinion that complainant has succeeded in proving his case. Therefore, present complaint is hereby allowed. OPs are ordered to refund the amount paid by complainant to OPs for sale consideration of shop in question i.e one fourth submitted by complainant as earnest money at initial stage and payment of remaining four instalments deposited by him with them alongwith interest at the rate of 9 % per anum from the date of filing the complaint till final realization. Ops are further directed to pay Rs.5000/-to complainants as compensation for harassment and mental agony suffered by them besides Rs.3000/-as litigation expenses. Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be entitled to initiate proceedings under Section 25 and 27 of Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room. 

Announced in Open Forum

Dated : 27.07.2017

 

            Member                                        President                                                            (P Singla)           (Ajit Aggarwal)