BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.385 of 2014

Date of Instt. 03.11.2014

Date of Decision : 13.07.2016

Gurjinder Singh aged about 46 years son of Labh Singh R/o Village and Post Office Chuhanke Khurd, 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.

Before: S. Bhupinder Singh (President)

Sh.Parminder Sharma (Member)

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

Sh.AK Bajaj Adv., counsel for the OPs.

Order

Bhupinder Singh (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties (herein called as OPs) on the averments that complainant applied to the OPs for allotment of plot in scheme known as Surya Enclave Extension (94.97 acres) Development Scheme vide application alongwith amount of Rs.6,05,200/- vide receipt No.089309 dated 7.9.2011. The OP held the lucky draw and the complainant was allotted a residential plot No.32/D vide allotment letter dated 2.4.2012. Subsequently, complainant deposited the earnest money as well as the remaining amount to the OPs. The total price of the plot was Rs.60,52,000/-. As per terms and conditions of the allotment letter, the OP has to deliver the physical possession of the plot to the complainant but till today, OP did not deliver the physical possession of the plot in question to the complainant. Complainant visited the office of OPs so many times but no satisfactory reply was given by the OPs. Thereafter, complainant came to know that there was no sign of any development at the site. The possession of the scheme area has not been found to be taken by the OP trust. The original land owners have got the stay order from the Hon'ble High Court and the OP has failed to take the actual possession over the land of the scheme area. Therefore, there are no chances of development of the scheme in the near future. The complainant was ready with money but he does not wish to get his hard earned money struck-up in such scheme as OP is not in a position to hand over the vacant possession of the plot in question to the complainant. Complainant, therefore, does not want to keep his money paid to the OP, remained deposited with the OP as the OP is not in a position to hand over the possession of the plot in question to the complainant. On such averments, the complainant has prayed for directing the OPs to refund the amount deposited by the complainant i.e. Rs.6,05,200/- alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, OPs appeared through counsel and filed written reply pleading that complainant has concealed the material facts from this Forum. Complainant has failed to deposit the amount of the earnest money within stipulated period of 30 days of issuance of allotment letter dated 2.4.2014. Therefore, as per condition No.6 of the said allotment letter, the allotment stand cancelled and earnest money stand forfeited. Even complainant filed application dated 12.6.2012 admitting his default of non depositing of earnest money within stipulated period and he requested to deposit the same and his case was sent to the Principal Secretary, Local Government Department, Punjab, Chandigarh vide letter dated 9.11.2012 for approval. OPs submitted that the stay regarding some portion of land of the scheme has been granted by the Hon'ble High Court but i.e. with regard to some area of the scheme not for the area of the entire scheme. OPs submitted that scheme is under progress but the complainant has not deposited even earnest money within stipulated period, as such he is defaulter. OPs denied other material averments of the complainant.

3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.C/A alongwith copies of documents Ex.C1 to Ex.C8 and closed his evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OW1/A alongwith copies of documents Ex.OP/1 to Ex.OP/6 and closed evidence.

5. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.

6. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant applied to the OPs for allotment of plot in scheme known as Surya Enclave Extension (94.97 acres) Development Scheme vide application alongwith amount of Rs.6,05,200/- vide receipt No.089309 dated 7.9.2011 Ex.C1. The OP held the lucky draw and the complainant was allotted a residential plot No.32/D vide allotment letter dated 2.4.2012 Ex.C2. Subsequently, complainant deposited the earnest money as well as the remaining amount to the OPs. The total price of the plot was Rs.60,52,000/-. As per terms and conditions of the allotment letter, the OP has to deliver the physical possession of the plot to the complainant but till today, OP did not deliver the physical possession of the plot in question to the complainant. Complainant visited the office of OPs so many times but no satisfactory reply was given by the OPs. Thereafter, complainant came to know that there was no sign of any development at the site. The possession of the scheme area has not been found to be taken by the OP trust. The original land owners have got the stay order from the Hon'ble High Court and the OP has failed to take the actual possession over the land of the scheme area. Therefore, there are no chances of development of the scheme in the near future. The complainant was ready with money but he does not wish to get his hard earned money struck-up in such scheme as OP is not in a position to hand over the vacant possession of the plot in question to the complainant. Complainant, therefore, does not want to keep his money paid to the OP, remained deposited with the OP as the OP is not in a position to hand over the possession of the plot in question to the complainant. Learned counsel for the complainant submitted that all this amounts to deficiency in service on the part of the OPs qua the complainant.

7. Whereas the case of the OPs is that complainant has concealed the material facts from this Forum. Complainant has failed to deposit the amount of the earnest money within stipulated period of 30 days of issuance of allotment letter Ex.C2/Ex.OP2. Therefore, as per condition No.6 of the said allotment letter, the allotment stand cancelled and earnest money stand forfeited. Even complainant filed application dated 12.6.2012 admitting his default of non depositing of earnest money within stipulated period and he requested to deposit the same and his case was sent to the Principal Secretary, Local Government Department, Punjab, Chandigarh vide letter dated 9.11.2012 Ex.OP5 for approval. The counsel for the OPs submitted that the stay regarding some portion of land of the scheme has been granted by the Hon'ble High Court but i.e. with regard to some area of the scheme not for the area of the entire scheme. OPs submitted that scheme is under progress but the complainant has not deposited even the earnest money within stipulated period, as such he is a defaulter. However, there is no deficiency in service on the part of the OPs qua the complainant.

8. From the entire above discussion, we have come to the conclusion that complainant applied for allotment of plot in scheme known as Surya Enclave Extension (94.97 acres) Development Scheme and submitted application alongwith 10% of the total price of the plot vide receipt dated 7.9.2011 Ex.C1 and in lucky draw, the complainant was allotted a residential plot No.32/D. Allotment letter dated 2.4.2012 Ex.C2/Ec.OP2 was issued to the complainant. As per terms and conditions of the allotment letter i.e. clause 6, the complainant was to deposit the balance amount of the earnest money i.e. 15% of the total price of the plot with the OP within 30 days of the issuance of letter of allotment but till today the complainant did not deposit the balance amount of the earnest money with the OP. As per clause 6 of the allotment letter Ex.C2/Ex.OP2, in case of such default the allotment of the plot shall stand cancelled and the amount if any deposited by the allottee shall stand forfeited. Complainant himself has admitted his default vide application dated 12.6.2012 regarding non depositing of the balance amount of earnest money i.e. 15% of total price. The total price of the plot in question was Rs.60,52,000/-. Through this application, complainant requested to deposit the earnest money i.e. balance 15% of the earnest money alongwith interest and penalty, if any. The OP, therefore, sent the case of the complainant to the Principal Secretary, Local Government Department, Punjab, Chandigarh vide letter dated 9.11.2012 Ex.OP5 for approval. All this shows that the complainant is a defaulter for non depositing the balance amount of earnest money i.e. 15% total price of the plot to the OP within 30 days from the date of allotment letter Ex.OP2 dated 2.4.2012. Complainant has submitted that he did not deposit the balance amount as the OP did not develop the scheme and is not in a position to hand over the possession of the plot in question to the complainant. Further, some original owners of the land under acquisition for this scheme, have taken stay from the Hon'ble High Court as is evident from the information received by the complainant from the OP through RTI Ex.C8. This plea of the complainant for non depositing of the balance amount of the earnest money of the plot i.e. 15% of the total price of plot due to aforesaid reasons, is not tenable because in the information supplied to the complainant under RTI Ex.C8, it has been categorically mentioned that some petitioners i.e. original owners of some portion of the land under the scheme have taken stay from the Hon'ble High Court and that too for some portion of land under this scheme and not for the entire scheme. The possession of the plot in question is to be given to the complainant only on the payment of the price of the plot but complainant even did not deposit the earnest money i.e. 25% of the total price of the plot in question with the OP. So, it is the complainant who is at fault and has violated condition No.6 of the allotment letter Ex.C2/Ex.OP2 and complainant himself has admitted this default of non payment of balance amount of the earnest money of the plot vide application dated 12.6.2012 as he expressed his willingness to deposit the balance amount of earnest money with interest/penalty, if any, with the OP and OP sent his case for approval to the Principal Secretary, Local Government Department, Punjab, Chandigarh vide letter dated 9.11.2012 Ex.OP5 for instructions in this regard. However, as per clause 6 of the allotment letter Ex.C2, if the allottee does not deposit the balance amount of the earnest money i.e. 15% of the total price of plot in question with the OP within 30 days from the date of allotment letter Ex.C2, the allotment shall stand cancelled and the amount, if any, deposited by the allottee shall stand forfeited. It has been held by Hon'ble Punjab & Haryana High Court in case Sushma Bakshi @ Susham Bakshi Vs. Haryana Urban Development Authority and another in CWP No.13278 of 2011 decided on 16.7.2012 that in the absence of deposit of 15% of the amount, no concluded contract came into existence. Such is the view of Hon'ble Supreme Court in Chaman Lal Singhal Vs. Haryana Urban Development Authority, (2009), 4 SCC 369, wherein it has been held that the non compliance of the terms of the letter of allotment does not give rise to binding contract.

9. Therefore, complainant is not entitled to refund of the amount deposited alongwith application with the OP. Consequently, we hold that there is no deficiency of service on the part of the OPs qua the complainant and complaint is without merit and the 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 Bhupinder Singh

13.07.2016 Member President