DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

Complaint No. :       147

Date of Institution:  16.10.2015

Date of Decision :    29.02.2016

Naresh Kumar S/o Kishori Lal r/o # 97 (1), Village Goval Thai, Tehsil Sshri Naina Devi, District Bilaspur.

                                                                                                    .......Complainant

Versus

1. The Faridkot Improvement Trust, Faridkot.

2. The Chairman, Faridkot Improvement Trust, Faridkot

3. E.O. Faridkot Improvement Trust, Faridkot.

                        ....Opposite parties (Ops)

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:      Sh Ajit Aggarwal, President,

   Smt Parampal Kaur, Member,

   Sh P Singla, Member.

    

   Present:      Sh. Dildeep Singh, Ld Counsel for complainant,    

                    Sh. Iqbal Kaushal, Ld Counsel for OPs.

                     

    (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 of Rs.8,44,710/- deposited by him with interest and to pay Rs 5,00,000/- as compensation for mental agony and harassment and financial loss to complainant besides Rs.10,000/- as litigation expenses.

   2                 Briefly stated, the case of the complainant is that complainant applied for a plot in the scheme of Faridkot Improvement Trust, Faridkot vide application no 519 costing Rs 300/- alongwith Rs 11,0000/-as earnest money through Demand Draft no. 360290 dt 5.08.2013.  Vide memo no. 175 dt 2.04.2014, complainant was allotted plot no. 97 measuring 200 square yards under Development Scheme Baba Jeewan Singh Nagar draw dt 26.11.2013 with all terms and conditions and OPs also agreed to give possession at the time of agreement after the deposit of 25 % of total amount, but OPs did not give any possession of plot as there is no demarcation of plots or any progress over the site.  Complainant was asked to pay ¼ of total amount with 4% cess and 2% cancer relief fund alongwith Rs 1500 as processing fee, which comes to be Rs 2,66,600/-  with option to pay the remaining amount in total i.e Rs 9,07,500/-within 30 days of allotment letter and 5% rebate as per rules of government or to pay the remaining amount in the form of five instalments with 12% annual interest and complainant made following payments to OPs as mentioned below:

                                 Complainant has abided by all the terms and conditions of instalments but OPs have not fulfilled their terms of contract. Complainant made many visits at the site but there was no sign of development as no work in progress regarding roads, parks, school, street lights etc was going on. Even there was no demarcation of plots. To ascertain the reason for it, complainant wrote letters dt 30.9.2014, 1.01.2015, 20.06.2015 and 8.09.2015 to OPs and even visited the office of OPs many times, but all in vain. Complainant also entered into agreement with OPs regarding plot no. 97-c allotted vide memo no. 175 dt 2.04.2015 on 8.09.2015 alongwith Rs 2000/-stamp paper, but OPs exhibited gross negligence in performance of their duties in proceeding to collect the money from the consumers for the allotment of the residential plots. Complainant also served legal notice dt 24.09.2015 to OPs calling upon them to refund the amount with interest but all in vain.  Complainant has suffered huge loss as he has paid major portion of his hard earned money of his life with OPs. Complainant made many requests to OPs, but all in vain. All this amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and financial loss to complainant for which he is entitled for compensation along with refund of the money paid by him to Ops on price of the said plot and litigation expenses. Hence, the present complaint.

3                The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 21.10.2015, complaint was admitted and notice was ordered to be issued to OPs.

4              On receipt of notice, OPs appeared in Forum through Counsel and filed reply taking preliminary objections that complainant has not filed his duly sworn affidavit in support of contents of the complaint and therefore, complainant is not maintainable before this Forum. However, on merits, ld counsel for OPs asserted that Sale Letter no. 175 dt 2.04.2014 was issued by Improvement Trust, Faridkot to complainant and complainant executed the agreement of sale with OPs 15 months late from the prescribed period, which is against the terms and conditions of the Scheme. It is asserted that there is no breach of terms and conditions of said scheme. Vide resolution no. 30 and 31 Rs224.80 lac and Rs 49.80 lacs respectively were passed for construction of roads and water supply & sewerage. It is averred that plot no. 97-C measuring 200 square yards was allotted to the complainant in the draw held on 26.11.2013 and as per scheme and Map sanctioned by Punjab Government, OPs have to construct boundary wall and has to hand over the possession of the plots to all the allottees and for construction of boundary wall and parking, resolution no. 15-16 dt 8.08.2015 had already been passed by OPs and same is sent to Government of Punjab for its approval, which is yet pending with Government and for installing Water Supply and Sewerage, case is sent to Punjab Water Supply and Sewerage Board vide office letter no. 526 dt 11.06.2015 and letter no. 632 dt 29.07.2015 for its approval, which is still pending with Board. It is further averred that complainant neither approached OPs nor wrote any letter regarding this to OPs. It is reiterated that there is no negligence or deficiency in service on the part of OPs, rather complainant himself has committed gross negligence as per terms and conditions of the Scheme for the allotment of plots. All the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with special costs.

5                 Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, C-2 and documents Ex C-3 to C-18 and then, closed the evidence.

6                      In order to rebut the evidence of the complainant, ld Counsel for OPs tendered in evidence affidavit of Gobind Kumar as Ex OP-1, documents Ex OP-2 to OP-8 and then, closed the evidence.

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

8              Ld. Counsel for the complainant argued that the complainant had applied for plot in a scheme launched by the OPs vide application no.519 and along with application he deposited Rs.1,10,000/- as earnest money vide DD no.360920 Dated 05.08.2013 with OPs his application was duly received. The copy of the application and receipt is Ex C-3 & C-6 respectively. The complainant was allotted plot no.97 measuring 200 Sq yds under Development Scheme Baba Jeewan Singh Nagar vide draw held on 26.11.2013. The OPs issued allotment letter dated 02.04.2014 to complainant stating all the terms and conditions and also agreed to give possession of the plot after depositing of 25% of total sale amount. Copy of the allotment letter is Ex C-5 but the OPs did not give possession of the plot till today as there is no demarcation of the plots on the site. Vide allotment letter the complainant was asked to pay 1/4^th  of total amount with 4% cess and 2% cancer relief fund along with Rs. 1500/- as processing fee which total amounting to Rs.2,66,600/-. The complainant deposited this amount with OPs vide demand draft dated 11.04.2014 and receipt dated 21.04.2014, as per terms and conditions he had to pay the balance amount of Rs.9,07,500/-in 5 half yearly instalment with interest @ 12% PA, the complainant deposited Rs.2,43,050/- on 18.03.2015 and Rs.2,25,060/- on 08.09.2015 against duly issued receipts. The copies of the receipts are Ex C-7 to C-9. The complainant abide by all the terms and conditions of the allotment but OPs could not fulfil their terms of contract, he visited the site and found that there was no sign of development and no work in progress regarding roads, parks, school, street lights, water supply, sewerage  and electricity lines and no demarcation of plots. The complainant approached to OPs to ascertain the reasons for non-development of the site. He also wrote letters to OPs and their higher authorities requesting them to start the development work at the site and to give possession of the plot to him. Copies of the letters and postal receipts are Ex C-10 to C-15. The complainant also entered into the agreement of the sale regarding the plot in dispute. Copy of the same is Ex C-16. Despite the many personal visits and letters the OPs shows gross negligence in performance of their duties. They did not start any development work at the site. They collected huge money from the consumers for allotment of the plot but they are not in position to do so. Complainant also served a legal notice to the OPs on 24.09.2015 calling upon the OPs to give possession of the plot, after the development work on the site or to refund amount paid by complainant to them along with interest but OPs did not give any reply to this notice. Copy of the notice is Ex C-17. Due to these acts of the OPs the complainant suffered huge loss as he has paid major portion of the price of the plot out of his hard earning money of the life which caused a lot of mental pain, agony and harassment to the complainant. All these acts of the OP amounting to deficiency in service and unfair trade mal practice have caused harassment and financial loss to the complainant.  He prayed that the OP may be directed to refund the sum of Rs.8,44,710/- paid by the complainant to them as price of the plot in dispute along with interest, compensation and litigation expenses.  

9.                To controvert the arguments of the complainant, the Counsel for the OP argued that the complainant is not consumer of the OPs and there is no deficiency in service and trade mal practice on the part of the Ops. However he admitted that a plot no.97 of 200 Sq Yds was allotted to complainant vide allotment letter dated 02.04.2014. He argued that complainant violated the terms and conditions of the allotment, he had to execute the agreement of sale within prescribed period, but he fails to get agreement on the time and execute the same 15 months late which is against the terms and conditions, they admitted that the complainant pay the amount of Rs.8,44,710/- with OPs as price of the plot in dispute as asserted by him he argued that the OPs have not committed  any breach of the terms and conditions of the scheme, as per the scheme and the map sanctioned by Punjab Government, the OPs have to construct the boundary wall of the scheme and has to hand over the possession of the plots to all the allottees. For the construction of the boundary wall and parking, the Resolution No.15-16dated 08.08.2015 had already been passed by the OPs and the same is sent to Government of Punjab for its approval which is yet pending with the Government of Punjab, besides this, for installing water supply and sewerage the case has been sent to Punjab Water Supply and Sewerage Board, vide office letters Dated 11.06.2015 and 29.07.2015 for its approval which is yet pending with the Board. Vide resolution dated 15.12.2015  budget for construction of roads and water supply and sewerage is also passed and sent to the Government for approval which is yet pending. The copy of resolution dated 03.08.2015 is Ex OP-3 and OP-4. Copies of the letters dated 29.07.2015 and 11.06.2015 sent to the Water Supply and Sewerage Board is Ex OP-7 & OP-8. He argued that OPs are doing their level best to get development work started on the site and to give possession of the plots after development It is wrong that complainant approached to OPs or wrote letters to OPs regarding the development work and possession of the plot as alleged by him. There is no negligence on the part of the OPs, rather the complainant himself has committed gross negligence as per terms and conditions of the allotment of the plot. He argued that during pendency of the complaint vide letter dated 19.02.2016 the OPs offered to complainant to take the possession of the plot. Copy of the letter is Ex OP-2. The OPs had done their duties in accordance with the law and rules and according to the terms and conditions of the scheme but the complainant breach the terms and conditions of the scheme, as per terms and conditions the amount for the plot is non-refundable. The complainant is fully aware about this fact, as such he is not entitled to get amount refunded. It is wrong that complainant suffered any financial loss or mental harassment and agony due to the acts of the Ops. There is no deficiency in service and trade mal practice on the part of the Ops. Hence the complaint in hand may be dismissed with costs.   

 10.              We have heard the arguments of both the parties and also gone through the pleadings and evidence led by both the parties. The case of the complainant is that he applied for allotment of plot in the scheme launched by OPs and he get allotted the plot measuring 200 Sq Yds vide allotment letter dated 02.04.2014 and he deposited Rs.8,44,170/- as part price of the plot with OPs on different dates against duly issued receipts, as per terms and conditions of the allotment the OPs have to deliver possession of the plot within one month after deposit of 25% of the total sale price, after completing all the development work on the site but the OPs failed to deliver the possession of the plot after completing the entire development work. Even on the spot no development work started till today and even no demarcation of the plot was made on the spot, so he demand his amount be refunded along with interest. In reply the OPs admitted that the complainant was allotted a plot in the scheme launched by them and he deposited the amount with them as part payment of the price as alleged by the complainant. They denied that they did not start the development work. They pleaded that they are doing their level best to start development at site. He argued that OPs passed resolution for starting development work on the site and also wrote letters to Punjab Water Supply and Sewerage Board to start the work which is sent to the State Government for its approval and the approval by State Government is still pending. He argued that OPs are ready to deliver the possession of the plot to the complainant and there is no deficiency in service and trade mal practice on the part of the OPs. The Counsel for the complainant argued that as admitted by the OPs themselves that they sent the proposal for development work on the site to State Government for approval who is yet pending, so it is admitted fact that there is no development work started on the spot and all is in the papers in reply to allegation of OPs that the complainant is himself in default for not executing the agreement of sale in time and also not deposit the instalment of the plot in time. On this point he put reliance on the citation 2015 (3) Consumer Law Today, 48 titled as EMAAR MGF Land Ltd and anr. Vs Dilshad Gill, whereas Our Hon’ble National Commission, New Delhi  observed “ 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 regarding 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. On the plea of the OPs that they are ready to deliver the possession of plot in dispute. They wrote letters to this fact to complainant. The Counsel for the complainant  argued that there is no development and basic amenities on the site, so the mere possession of the plot is not sufficient. He put reliance on the citation citation 2015 ( 2 ) Consumer Law Today, 39 titled as M/s Ashiana Housing Ltd. Vs Yog Raj Vij, Our Hon’ble National Commission, New Delhi observed that Consumer Protection Act, 1986, Section 2 (1) (g)-Flat Allotment-offer of possession-Mere offer of possession when the external services are far from complete, cannot amount to fulfilment of the contractual obligation undertaken by the builder-Unless the external development including common facilities is ready for use, a buyer cannot conveniently make use of the flat allotted to him-Revision Petition dismissed.

                             He argued that as the complainant has already paid a substantial part price of the plot but the OPs has failed to deliver the possession of the plot after the development work, even they fail to start the development work till today. There is no right to retain the amount with them and this amount should be refunded to the complainant. He put reliance on the judgments daed 04.09.2015 passed by Our Hon’ble National Commission, New Delhi in first appeal no.1215 of 2014 titled as Jalandhar Improvement Trust Vs Munish Dev Sharma in it our Hon’ble National Commission observed that Furthermore, appellants after having taken substantial amount from the respondents in the year 2011, are still enjoying their hard earned money for last many years. Now, when appellants are not in a position to allot the plots in a habitable condition to the respondents, then why they are still withholding respondents’ money. There is no reasonable and plausible explanation, in this regard from the side of the appellants.  We deplore  such “unfair trade practices” being  adopted by the Appellant-Trust, which is a Public Body.

                    It would also be pertinent to observe, that appellants have not given any firm date of handing over the possession of plots in question, to the respondents which also is a “ Deceptive Practice”.  The appellants should have given firm date of handing over of possession, at the time of taking booking amount. By not indicating the true picture with regard to their scheme to the respondents, appellants induced them to part with their hard earned money, which also amounts to “unfair trade practice”.

                               Thus, appellants by not delivering the physical possession of fully developed plots to the respondents, till date even after having received more than 90% of the price thereof, are not only deficient in rendering service but are also guilty of indulging into “unfair trade practice”.

                              Appellants in the present case,  “wants to have the cake and eat it too”, as admittedly they have received about 90% of the sale price of the plots. The appellants are thus enjoying possession of the plots as well as substantial amount of consideration paid by the respondents. On the other hand, respondents after having paid substantial amount of the sale consideration, are still empty handed.

                   They further observed that such type of unscrupulous act on the part of Appellant-Trust should be dealt with heavy hands, who after grabbing the money from the purchasers, enjoy and utilize their money but do not hand over the plots on one pretext or the other. Appellants want the respondents to run from one fora to other, so that appellants can go on enjoying the respondents’ money without any hindrance.  It is well settled, that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless appeal in consumer foras. Equity demands that such unscrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree, must be dealt with heavy hands. Unscrupulous developer like Appellant-Trust, who after taking almost entire cost of the plots, do not perform their part of obligation, should not be spared.  A strong message is required to be sent to such type of Public Bodies.  

                   He further argued that complainant is entitled for the interest along with penal interest on the amount deposited by him with OPs as the OPs violated the terms and conditions of the scheme. He put reliance on the citation 2015 ( 1 ) Consumer Law Today, 552 titled as Puneet Malhotra Vs Parsvnath Developers, decided by Hon’ble National Commission, New Delhi:

                 Consumer Protection Act, 1986, Section 2 (1) (g) & Interest Act, 1978- Allotment of flat-Housing Construction-Delay in construction-Interest-held- As per the agreement between the parties, the complainant was required to pay interest @ 24% PA in the event of delay on his part in making payment to the opposite party-Logically, if the seller is charging interest from the buyer @ 24% PA, it should have no hesitation in paying the interest at the same rate to him in the event of its failure to complete the construction of the flat within the time frame agreed between the parties.

                    Ld. Counsel for the complainant put reliance on Circular dated 23.02.1983 issued by the Local Government of Punjab, this circular contains the guidelines for the fixation of realization of interest in respect of plots falling in the various schemes of Improvement Trusts. The very first guideline is that as far as possible the Improvement Trusts shall allot/auction the sites only when they are sure that they are in a position to deliver the possession of site to the purchaser. The notice for the delivery of possession is required to be issued to the purchaser within 30 days of the allotment/acceptance of bid indicating the time at which he should be present for taking of the possession. It is also contained in that circular that where the authorities are not in position to deliver the possession immediately, interest, penal interest and penalty on the payment of instalments is to start only from the date on which the possession of the site is delivered to the purchaser and not from the date of the receipt of the allotment letter by him.

                   He prayed that the present complaint in hand is may be allowed and OPs may be directed to refund amount deposited by the complainant with them along with interest.

11.               We have thoroughly gone the file and evidence and also case law produced by the complainant. It is admitted case of the parties is that complainant was allotted a plot by OPs and he paid Rs.8,44,710/- price of the plot to the OPs but OPs fail to start development work on the site and to give possession of the plot. The pleadings of the Ops itself shows that they have not start any development work of the scheme at the site and only development work is done in the file. They pleaded that they passed resolution regarding development work and wrote letters to Water Supply and Sewerage Board, and sent the same to the State Government for approval which are yet pending with State Government for approval which clearly shows that there is no sign of development work on the site and all work is in the papers, so in these circumstances all these acts of the OPs amounts to deficiency in service and trade mal practice. As per the allotment letter, they have to deliver the possession of the plot after completion of entire development work within one month of the allotment letter but the OPs failed to deliver the possession of the plots after completing the development work within stipulated period. The Ops are not entitled to retain the money paid by the complainant to them as price of the plot. Moreover till today the Ops are not in the position to give assurance that when they would complete the development work on the site and deliver the possession of the plot after it.  

12                             In the light of above discussion, the present complaint is hereby allowed. The Ops are ordered to refund amount of Rs.8,44,710/- which was received by them from the complainant as price of the plot along with interest @ 12% PA from the date of its deposit till final realization. OPs are also burdened to pay Rs 15,000/- as compensation for mental agony and harassment faced by complainant and Rs 5000/-as litigation expenses to the complainant. Ops are directed to comply with the order within one month from the date 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. File be consigned to the record room. 

Announced in Open Forum

Dated: 29.02.2016

                                Member                 Member    President                                           (P Singla)         (Parampal Kaur)         (Ajit Aggarwal)