BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.305 of 2014

Date of Instt. 04.09.2014

Date of Decision :17.06.2015

Surjit Lal son of Banta Ram R/o village & P.O Sudana, Tehsil & District Jalandhar.

..........Complainant Versus

The Jalandhar Improvement Trust, Jalandhar through its Chairman/Executive Officer, Jalandhar.

.........Opposite party

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.Darshan Singh Adv., counsel for complainant.

Sh.Brijesh Bakshi Adv., counsel for opposite party.

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 party on the averments that the opposite party had floated a scheme known as Surya Enclave Extension and the complainant applied for allotment of plot size 500 sq.yards at Surya Enclave Extension, Jalandhar (94.97 Acre) Development Scheme, under Government Employee Reserve Category. The complainant deposited a sum of Rs.8,50,000/- as earnest money to the opposite party and the complainant took loan from Punjab Gramin Bank, Bhogpur, Tehsil & District Jalandhar. Upon a draw being held on 4.11.2011, the complainant was allotted plot No.1-C in Government Employee Category. The complainant was informed about the same vide letter No.JIT-4654 dated 2.4.2012, as per the terms and conditions of the letter of allotment dated 2.4.2012, the complainant was supposed to pay 1/4th amount of the value of the plot i.e 16,15,950/- upto to 1.5.2012 and the last installment was to be paid upto 1.10.2014 and the total amount of the plot No.1-C as per the terms and conditions of the opposite party. Before dated 1.5.2012, when the complainant was supposed to pay 1/4th amount of Rs.16,15,950/- to JIT, the complainant and his wife visited the above said site of the scheme when he was ready and willing to deposit the balance 1/4th amount of the value of the plot and found that the site of the scheme (94.97 acre scheme) was lying in an absolutely ignored condition and there was no work of development at all at the site in question. It was absolutely impossible to find the identity and proper location of the plot No.1-C nor there was any road marked or construction work at that site. The complainant made requests/representations dated 24.4.2012, 3.9.2012 and 9.5.2013. The complainant came to know that the original land holders of 94.97 acre scheme, have not given the possession of the site in question to the opposite party on account of stay order obtained by them from the Hon'ble High Court of Punjab & Haryana and under these circumstances there was no possibility of handing over the possession of the plot alloted to the complainant. Although the complainant has got the money in hand to deposit the same with the opposite party, yet the complainant did not want to deposit the hard-earned money in un-developed Surya Enclave Extension (94.97 Acre) Development Scheme. The complainant has sent representations/ request letter dated 24.4.2012, 3.9.2012, 7.11.2012, to the opposite party but no reply has been given by the opposite party to the representations sent by the complainant. The complainant also got sent a legal notice of demand by Advocate Gurmail Singh Dhillon, dated 17.11.2012, but the opposite party again did not reply to the said legal notice. The complaint wanted to get clarification of some important points from the office of the opposite party about the actual, factual and legal position of the scheme in question. The complainant has filed an application under Right to Information Act to know the actual, factual and legal position, but the opposite party did not reply although it is obligatory as per the Right to Information Act to reply the application for information. The complainant specifically requested the opposite party to disclose the factual position of the plot No.1-C. If the opposite party is in a position to provide detailed documents of plot No.1-C, to the complainant as required in the application under Right to Information Act, 2005 within a period of 30 days from the receipt of the application, the complainant is still ready to pay the due amount as per the terms and conditions of the allotment of plot No.1-C. It is further alleged that the case of the complainant is fully covered under the case of Baljit Singh Sandhu Vs. The Jalandhar Improvement Trust, Jalandhar, Complaint No.342 of 2013 decided on 21.4.2014 by this Forum. On such like averments, the complainant has prayed for directing the opposite party Trust to refund his earnest money of Rs.8,50,000/- alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite party appeared and filed a written reply, inter-alia, pleading that it is wrong that the site was in any ignored condition or that there was no development work at site or that the plot was not identifiable. It is mentioned that JIT had clear possession at site of this area. Even otherwise, it is mentioned that as per allotment conditions the allottee should deposit the 1/4th sale price and enter into sale agreement with the Trust within 30 days from the date of allotment and after that the allottee can seek possession at site. But the complainant neither deposited the 1/4th amount nor entered into sale agreement and so no question arises for the complainant seeking possession or entitlement to take possession of the site from the Trust. As far as the development works are concerned it is noteworthy that the present scheme is a development scheme wherein the deposit of funds by way of sale price by allottees is also utilized for simultaneous development of the scheme and it is clearly mentioned in the clause No.7 of the allotment letter that the development works are to be completed in 2-1/2 years i.e the period during which installments are paid. Thus it is quite evident that in view of the allotment conditions the complainant can not link the payment of 1/4th sale price with the possession or development works at site as on the scheduled date of the payment of 1/4th sale price of the plot. There had been status quo regarding possession on some part of the land acquired under the 94.97 acre development scheme and that CWP is pending in the Hon'ble Punjab & Haryana High Court. Trust is in possession of the site of the plot in question. But the complainant being defaulter is not entitled to seek or dispute possession. The entire complaint seems to be based on conjectures and surmises and presuppositions of the complainant himself. The complainant has filed a frivolous complaint on lame excuses just to seek refund of the earnest money. It denied other material averments of the complainant.

3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C13 and closed evidence.

4. On the other hand, learned counsel for opposite party has tendered affidavits Ex.OPA and Ex.OPB alongwith copies of documents Ex.O1 to Ex.O4 and closed evidence.

5. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted on behalf of complainant.

6. The facts involved in the present case are not much disputed. It is not disputed that the complainant applied for a plot of 500 sq.yards in Surya Enclave Extension Scheme and deposited sum of Rs.8,50,000/- as earnest money. It is also not disputed that he was allotted a plot No.1-C vide allotment letter dated 2.4.2012 Ex.C1. It is also not disputed that the complainant had only deposited the earnest money of Rs.8,50,000/- and did not deposit 1/4th price of the plot within 30 days from the date of receipt of allotment letter as required by condition No.6 of the allotment letter. In para 5 of the complaint, he has pleaded that before 1.5.2012, when he was supposed to pay 1/4th amount of Rs.16,15,950/- to JIT, he i.e complainant and his wife visited the above said site of the scheme and found that the site of the scheme was lying in an absolutely ignored condition and there was no work of development at all at the site in question and it was impossible to find the identity and proper location of the plot No.1-C nor there were any road marked or construction work at that site. As per condition No.7 of the allotment letter, the necessary facilities in the scheme area were to be completed within 2-1/2 years. So when the development was to be completed within 2-1/2 years of the date of allotment letter then the question of no development at the site on 1.5.2012 does not arise. The complainant was to pay all installments within 2-1/2 years and Trust was also supposed to develop the scheme area within 2-1/2 years meaning thereby that Trust was to develop the area with the money received from the allottees. So version of the complainant that before 1.5.2012, when he and his wife visited the site in question, there was no development work at the site is without any substance. Counsel for the complainant pleaded that in complaint titled as Baljit Singh Sandhu Vs. The Jalandhar Improvement Trust, Jalandhar, Complaint No.342 of 2013 decided on 21.4.2014, the earnest money deposited by the complainant was ordered to be refunded. The facts involved in that complaint were different. The complainant has attached order passed by this Forum with written arguments and from perusal of that order it is evident that the version of the opposite party Trust in that case was entirely different. In the present complaint, the opposite party has specifically pleaded that it is in possession of the site in question. In that case, the opposite party has pleaded that plot in dispute i.e No.13-C falls under Khasra No.8888 and 8890 and same was joint ownership of Amrik Singh, Balbir Singh etc but Amrik Singh son of Dalip Singh claiming the ownership filed writ petition No.3559 of 2011 and the Hon'ble High Court has ordered that status quo regarding possession shall be maintained. So as a matter of fact, it was found that in that case Trust was not in possession of plot in question. However, in the present case, the opposite party trust has specifically pleaded that the trust is in possession of site of the plot in question. So facts involved in that complaint were different than the facts of the present case. The complainant has also attached some other judgments with the written arguments but the facts in those cases are different and same are not attracted in the present case. The complainant can not cite order passed by this Forum, he can only rely upon the orders passed by Hon'ble State Commission or Hon'ble National Commission or some other higher courts. Clause No.6 of the allotment letter specifically provide that in case 1/4th price of the plot is not deposited, the Trust shall have full right to cancel the allotment without any letter and the amount already deposited by the allottee shall deem to have been forfeited. In the present case, admittedly the complainant did not deposit 1/4th price of the plot within 30 days. So as per clause No.6, the earnest money deposited by him was liable to be forfeited. In the present complaint, the complainant has not pleaded as to in which khasra number, the plot in question is situated. He has also not produced copy of order passed by Hon'ble High Court in the litigation which is stated to be pending to show that the Hon'ble High Court has passed any stay order regarding khasra number in which the plot allotted to the complainant is situated. In some what similar circumstance, In Harmeet Kaur Sethi Vs Jalandhar Improvement Trust, First Appeal No.437 of 2013 decided on 5.3.2015 by Hon'ble State Commission, it has been held as under:-

"After going through the allegations in the complaint, written reply filed by the opposite parties, evidence brought on record, District Forum observed that only earnest money was deposited and 1/4th amount was not deposited within 30 days from the date of allotment. As per terms and conditions of the allotment letter, in case 1/4th amount of the total price was not deposited then earnest money was liable to be forfeited as per condition no.6 and it was rightly forfeited. In view of this condition, the complaint filed by the complainant was dismissed.

In the ground of appeal, it has been submitted that the District Forum has miserably failed to appreciate the evidence on record, that the land in question was under litigation, thus, there was no purpose to deposit the amount as alleged in the allotment letter. In fact it amounts to unfair trade practice on the part of the opposite party who were not in possession of the land for which the scheme was notified. Therefore, the impugned order is liable to be set-aside and consequently, the appeal be accepted.

We have heard the arguments of the counsel for the opposite party and on the date of hearing counsel for the complainant was not present. In our opinion when any scheme is launched, main features of the scheme are given and in case the complainant needed any inquiry then it can be raised before applying for a plot under the said scheme. A reference has been given to litigation in the Hon'ble High Court. No doubt some litigation must have been filed in the Hon'ble High Court but it must be seen whether the entire property under this scheme was the subject matter of the litigation filed before the Hon'ble High Court under which the dispossession of the original owners was stayed. No copy of the writ petition or court proceedings was filed on record. When once the scheme was launched and allotment letter was issued in favour of the complainant then the parties are to be governed under the said allotment letter. As per condition contained in the allotment letter, the complainant was required to deposit 25% of the total sale consideration within 30 days from the date of allotment, failing which the earned money deposited will be forfeited. However, the complainant failed to deposit 25% of the sale consideration of the plot within 30 days from the date of allotment. She has taken a plea that there was no development at the site. The development would be possible only in case the plot owners, to whom the plots were allotted continues to deposit the payment as per the schedule. There is a condition in the allotment letter that in case the 25% amount of consideration as referred in the allotment letter is not deposited, then earnest money is liable to be forfeited as per terms and conditions of the allotment letter.

From the perusal of the record we find that the complainant herself had failed to deposit 25% of the sale consideration, as per the terms and conditions of the allotment letter, therefore, the earnest money was rightly forfeited by the opposite parties. In view of above observations, the appeal is hereby dismissed as there is no merit in it. The order of the District Forum is well reasoned order and same is upheld".

7. The ratio of this authority is fully applicable on the facts of the present case. Since complainant himself failed to deposit 1/4th price of the plot allotted to him within 30 days of the allotment letter, as such as per condition No.6 of the allotment letter the earnest money was liable to be forfeited. Consequently, he is not entitled to refund of the same.

8. In view of above discussion, we hold that there is not 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

17.06.2015 Member Member President