BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.457 of 2018
Date of Instt. 02.11.2018
Date of Decision: 27.04.2022
1. Gaurav Goyal
2. Garish Goyal both sons of Ram Chand Goyal residents of EG- 828, Mohalla Gobindgarh, Jalandhar.
..........Complainants
Versus
1. The Jalandhar Improvement Trust, Jalandhar through its Chairman.
2. The Executive Officer, The Jalandhar Improvement Trust, Jalandhar
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Present: Sh. A. P. S. Pathania, Adv. Counsel for the Complainants.
Sh. Sachin Sharda, Adv. Counsel for the OPs No.1 and 2.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein it is alleged that the complainant No.1 as per the advertisements given by the OPs for carving out a residential development scheme of 94.97 acres of land (Surya Enclave Extension, Jalandhar), he gave an application for allotment of a residential plot and accordingly, the complainant Gaurav Goyal was declared as successful allottee of the plot No.246-D, in Surya Enclave Extension, Jalandhar. At the time of allotment the complainant No.1 was required to make the payment of necessary fees and expenses to which the complainant made the payment as per the allotment letter and it was agreed that the complainant will pay Rs.17,000/- per sq. yard of the total sale consideration amount of the purchase of the said plot and the total amount of Rs.32,65,000/- was fixed being the purchase value of the said plot, as per the terms and conditions set out in the agreement executed between the complainant and OPs for the purchase of 200 sq. yards plot. As per the vouchers advertised by the OPs in various newspapers and pamphlets distributed amongst the newspaper, publication houses, the OPs represented to all the general public at large that the said property on the basis of which the Surya Enclave Extension is being plotted is free from all sort of encumbrances, charges and litigation and accordingly, all the allottees were asked to make the payment as per the allotment schedule. During this period the complainant was asked to make the remaining payment, as the complainant made the payment of Rs.7,14,000/- and other expenses of allotment vide receipt dated 05.07.2016 and an amount of Rs.3,40,000/- vide receipt dated 12.04.2016 issued by the OP. But later on the demand of OPs remained continued for further period but the complainants who are now the holders of the said registered plot, came to know that the Surya Enclave Extension scheme is a big failure especially when the original property owners from where the property was acquired have already challenged the acquisition before the Hon’ble Punjab & Haryana High Court and the status quo orders have been passed by the Hon’ble High Court in this regard in favour of the original owners of the property acquired. Under these circumstances, the property which has been offered for allotment is subject of dispute and the OPs are unable to make the payment of the same to the complainants. Inspite of this fact that the OPs are aware that they are unable to give the possession and allotment of the said property in favour of the complainants, the OPs are not disclosing this fact of litigation and status quo orders to the general public at large and intentionally and malafidely concealed this material fact from the original allottees of the property and the OPs are directly or indirectly liable and responsible to repay the entire amount alongwith interest @ 12% per annum. Not only this the complainants are entitled for refund of the amount which they made the payment to the OPs, but also the complainants are entitled for damages on account of unfair trade practice, deficiency in service and negligence on their part. The complainant also served a legal notice dated 29.09.2015 upon the OPs, but all in vain. The act and conduct of the OPs is negligent, they are indulged unfair trade practice and deficiency in service and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of Rs.10,54,000/- alongwith interest and expenses. Further OPs be directed to pay the damages for mental pain, agony and harassment for Rs.5,00,000/- and Rs.33,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form. The complainant has not come to the Commission with clean hands and has concealed material fact. The complainant has intentionally not disclosed in his complaint that they have failed to deposit the installments of money within time schedule as mentioned in the allotment letter as such they have become a defaulter. It is further averred that as per the Para No.3 of the allotment letter, if the installments are not deposited within six months of the time schedule mentioned in the allotment letter, the allotment will be deemed to be cancelled and plot will be deemed to be forfeited. It is further averred that 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 cancelation of the allotment, due to their failure to pay the installments of the amount as mentioned in the allotment letter. Despite issuance of many letters to the complainant by the OPs, the complainant never came forward to pay the due installments. On merits, the factum with regard to allotment of the plot is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder not filed.
4. In order to prove their respective versions, both the parties produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant, very minutely
6. It is admitted case of the parties that the complainant applied for allotment of residential plot and he was allotted the plot No.246-D, vide Ex.C-3 and Ex.C-4. It has been proved that the complainant took loan from Punjab National Bank and paid the earnest money of Rs.3,40,000/- on 03.05.2016, vide Ex.C-5 and Ex.C-7. It has also been proved that he paid the amount of Rs.7,14,000/- as 1/4th of the total amount alongwith cess fee and agreement fee vide Ex.C-6. These facts have been proved by the complainant and have been admitted by the OPs also. It is also been proved and admitted fact that thereafter the complainant did not deposit the remaining balance amount of the plot. It has also been proved by the OPs as well as the complainant as per Ex.C-9 (Ex.OP-3) and Ex.C-10 (Ex.OP-4) that the complainant has not deposited the remaining amount despite writing letters to the complainant by the OPs.
7. The contention of the complainant is that the OPs have played mischief with the complainant and have wrongly advertised about the property situated in Surya Enclave Extension alleging that the plots are free from all sort of encumbrances, charges and litigation, whereas the writ was pending before the Hon’ble Punjab & Haryana High Court and the Hon’ble High Court had passed the Status-Quo order regarding this. He has produced on record the documents Ex.C-12, Ex.C-13 and Ex.C-14. As per these documents, the parties were directed to maintain Status Quo regarding possession and it was ordered that this would not mean that the petitioners can raise any further construction over the property in dispute. Similarly, the same order was passed vide Ex.C-13 and Ex.C-14 and dispossession was stayed vide Ex.C-14.
8. As per the contention of the complainant, the OP could not auction the plots since there was stay order, but this contention has been rebutted by the OP and he has produced on record the order passed by the Hon’ble High Court. The Hon'ble High Court in the CWP No.3559 of 2011, regarding which the complainant has filed the orders Ex.C-12 to Ex.C-14, has dismissed the Writ Petition vide Order dated 22.12.2015, meaning thereby that the writ petition relied upon by the complainant was already dismissed at the time when the auction was made. As per the document Ex.OP-2, which is the detail of the scheme and draw, the date of draw was 19.05.2016 and the Hon'ble High Court dismissed the writ on 22.12.2015, meaning thereby at the time of the draw, there was no stay order of the Hon'ble High Court and the writ was already dismissed. The complainant has not produced on record any document to show that the order passed by the Hon'ble High Court was challenged in the Hon’ble Supreme Court and any order of stay or status quo was passed by the Hon’ble Supreme Court. Thus, the order dated 22.12.2015 was final as per the record produced in the present complaint. Thus, the contention of the complainant regarding the auctioning of the plot despite the order of the status quo is not tenable. The complainant has been informed number of times, vide the above letters to deposit the amount of Rs.38,64,553/- inclusive of penal interest till 25.11.2018 vide Ex.OP-3 to Ex.OP-5, but admittedly the complainant has not deposited the said amount. Though the OPs have stated in the letters that failing in depositing the amount of installments the amount shall be forfeited and allotment shall be cancelled, but till 12.112018, the allotment was not cancelled and prior to that the complainant had filed the present complaint. In such circumstances, he is entitled to get the refund money deposited by him i.e. Rs.10,54,000/- alongwith interest @ 6% per annum from the date of payment since this amount has been used by the OPs. The complainant had not deposited the amount despite the letters issued by the OPs and the fact that there was no stay order of the Hon'ble High Court and the Writ was dismissed, therefore, the complainant has not suffered any mental pain as the fault is at the hands of the complainant, therefore he is not entitled to any damages. The OPs are directed to pay Rs.3000/- as litigation expenses and accordingly, the complaint of the complainant is partly allowed. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jyotsna Dr.Harveen Bhardwaj
27.04.2022 Member President
