BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.361 of 2014

Date of Instt. 17.10.2014

Date of Decision :11.05.2015

Gurdeep Kaur wife of Pardeep Singh R/o Ward No.17, Vikas Nagar, Near Gurdwara Nanaksar, Tehsil & District Barnala.

..........Complainant

Versus

1. The Jalandhar Improvement Trust, Jalandhar through its Chairman/Executive Officer/Authorized Signatory etc.

2. The Chairman/Executive Officer, Jalandhar, Improvement Trust, Jalandhar.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act,1986.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.APS Pathania Adv., counsel for complainant.

Sh.Sachin Sharda Adv., counsel for OPs.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986, against the opposite parties on the averments that the complainant is a permanent resident of the above said address and the opposite parties who are engaged in developing the new residential schemes and business sites and as per the said scheme, the opposite party No.1 had floated a scheme known as Surya Enclave Extension (94.97 Acres) Development Scheme and in that scheme, the complainant had applied for the allotment of a plot area measuring about 356 sq.yards under the category of Pensioner. The complainant deposited the requisite amount for the application of the residential plot and accordingly deposited the required application amount alongwith the documents as desired by the opposite parties and after a raising a loan from the bank the complainant deposited an amount of Rs.6,05,200/- vide receipt No.089310 dated 7.9.2011. The allotment was made by a lucky draw and the said lucky draw was held by the opposite parties and in the said draw the complainant was allotted a residential plot No.47-D and the allotment letter of the same was sent by the opposite parties to the complainant and subsequently the complainant got deposited the earnest amount as well as the remaining amount was to be paid to the opposite parties. The said lucky draw was held on 4.11.2011 and as per the scheme total amount of Rs.57 Lacs approximately was to be deposited by the complainant from time to time. As per the terms and conditions, the opposite party has to deliver the physical possession of the plot alongwith site plan to the complainant but nothing was done by the opposite parties with regard to giving the possession of the plot as well as the demarcation nor the complainant was intimated about the same till today. The opposite parties failed to give the satisfactory reply regarding the actual time for the delivery of possession of the plot to the complainant. Thereafter, the complainant came to know that despite much propagation about the development of the scheme area, there was no sign of any development at the site. Even it is not possible to identify and locate the said plot which has been allotted by the opposite parties to the complainant till today nor there are any roads marked or constructed at the site. Even the possession of the scheme area has not been found to be taken by the Jalandhar Improvement Trust till today and after making the revealing enquiries by the complainant it has come to the notice of the complainant that the JIT has not been given the possession of the site in question even after acquiring the said land and the original landowners have got the stay orders from the Hon'ble High Court regarding its acquisition and the JD has failed to take the actual physical possession over the property and the scheme has not been developed as per their representations and assurances. It has also transpired that the original landowners have not been given any amount of compensation by JIT to take possession of the scheme land and to develop the area of the scheme. As such it can be concluded that there are no chances of the immediate development of the scheme and the complainant will not be able to get the possession of the plot. The complainant was having ready money with her, as due till date, but she did not wish to get her hard earned money stuck up in a bad and undeserved property at the fag end of her life after such a long period of the development of the said scheme in the papers only. The complainant visited the office of the opposite parties and made enquiries about the development over the site and from the said office the complainant came to know that the JIT Jalandhar is not in a position to hand over the vacant possession of the plot to her in a fully developed condition, in that case the same plot will stand surrendered to the opposite parties due to acts of defaults in performance of its part of making proper development of the site in question and after the same the complainant who had applied for the residential purpose in the said scheme is also unable to apply in any other improvement trust scheme, until and unless the above said allotment is not canceled and the earnest amount deposited by her is not returned by the JIT alongwith interest to the complainant. On such like averments the complainant has prayed for refund of the deposited amount of Rs.6,05,200/- alongwith interest. She has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties appeared and filed a written reply pleading that the complainant has not come to the Forum with clean hands and has concealed the material facts. The complainant has intentionally not disclosed in her complaint that she failed to deposit the earnest money within time as such she became a defaulter. Afterwards she moved an application for a condonation of delay to deposit the 25% of amount as earnest money as she is facing financial crisis. As per the para 6 of the allotment letter 1/4th of the amount is to be deposited within 30 days from the date of allotment to the opposite parties and in case the allottee fails to deposit the 1/4th of the allotment amount as mentioned in the allotment letter the JIT will have the right to cancel the allotment and forfeit the amount deposited. The complainant has filed the present complaint with ulterior motive. The complainant has filed this complaint with the aim to prevent the forfeiture of the amount and cancellation of the allotment, due to her failure to pay the 1/4th of the amount as mentioned in the allotment letter. The claim of the complainant is hopelessly barred by limitation as such complaint deserves to be dismissed on this score alone. It is pertinent to mention that the complainant was herself a defaulter in paying the earnest money as per the allotment letter. It is further pertinent to mention that the complainant failed to pay 1/4th of the amount within 30 days from the date of allotment letter as such the replying opposite parties as per the terms of the allotment letter has full authority to cancel the allotment and forfeit the earnest money already deposited. It is further mentioned that complainant has moved a letter for condonation of delay to deposit 25% of earnest money till 21.5.2012 as she was facing financial crisis. It is further mentioned that complainant can not blame opposite parties for her own fault of not depositing the required earnest money within time to the opposite party. They denied other material averments of the complainant.

3. In support of her complaint, learned counsel for complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 and closed evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OPA alongwith copies of documents Ex.OP1 to Ex.OP3 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties.

6. At the time of arguments, complainant moved an application for production of documents by the opposite parties. There is no need of directing the opposite parties to produce the documents, if any mentioned in the application as the present complaint can very well be decided on the basis of material on record. It is not disputed that the complainant applied for a plot in Surya Enclave Extension Scheme of the opposite parties and in lucky draw, she was allotted plot No.47-D. Ex.C1 is allotment letter in this regard. It is not disputed that complainant had deposited Rs.6,05,200/- with the opposite parties alongwith application. Clause 6 of the allotment letter Ex.C1 specifically provides that in case the conditions are not fulfilled within 30 days of the issuance of the allotment letter and 1/4th price of the plot is not deposited in the said time then trust shall have full right to cancel the allotment without issuing any letter and the amount already deposited by the allottee shall deemed to be forfeited. The price of the plot was Rs.60,52,000/-. This price is mentioned in the allotment letter itself. So as per terms and conditions of the allotment letter, the allottee i.e complainant was required to deposit 25% of this amount with the trust within 30 days of issuance of allotment letter. Admittedly she did not deposit the remaining amount of 1/4th price of the plot within 30 days. The complainant herself moved an application Ex.OP2 wherein it is mentioned that 15% of the amount was to be deposited by her till 21.5.2012 but due to financial constraint she can not deposit the amount within time and she may be allowed three months time to deposit the amount and she well be bound to pay the interest and penalty for said period. The complainant even did not deposit the amount within three months. In fact she has not deposited any other amount except Rs.6,05,200/- i.e 10% of the price of the plot as earnest money. So as per condition No.6 of the allotment letter the trust was justified in canceling the allotment and forfeiting the above said amount deposited by the complainant. The complainant is herself defaulter. As per clause 7, the complainant was only entitled to get the possession of the plot after executing an agreement to sell with the trust. She never executed any agreement to sell with the trust as she failed to deposit the remaining amount of 1/4th price of the plot within stipulated period of 30 days. Further as per clause 7, the development of the scheme area was to be completed within two and a half years. So in the above circumstances, the complainant being herself defaulter can not find fault with the opposite parties and as per clause or condition No.6 of the allotment letter the amount deposited by her is liable to be forfeited and allotment cancelled. So, she is not entitled to refund of the amount of earnest money i.e Rs.6,05,200/- deposited by her with the opposite party trust.

7. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

11.05.2015 Member Member President