Punjab

StateCommission

A/100/2015

Akash Kundra - Complainant(s)

Versus

The Jalandhar Imrovement Trust - Opp.Party(s)

A.S.Parmar

19 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 100 of 2015

                                                           

                                    Date of institution: 28.1.2015  

                             Date of Decision:  19.2.2015

 

Akash Kundra son of Anoop Kumar Kundra, resident of 216, Sector 8, Panchkula, Haryana.

…..Appellant/Complainant

                                      Versus

1. The Jalandhar Improvement Trust, Jalandhar through its Chairman/Executive Officer.
2. The Chairman/Executive Officer, Jalandhar Improvement Trust, Jalandhar.
3. State of Punjab through Secretary, Department of Local Bodies, Chandigarh.

…..Respondents/Opposite Parties

 

First Appeal against the order dated 15.10.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant             :         Sh. A.S. Parmar, Advocate

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

Misc. Application No. 182 of 2015

                   An application has been filed under Section 5 of the Limitation Act to condone the delay of 54 days in filing the appeal. It was stated that the counsel for the appellant had wrongly calculated the days of limitation and in that process there was delay of 54 days in filing the appeal, which is neither intentional nor deliberate and there is no mistake on the part of the appellant. In view of the reasons as stated in the application and that the delay is just 54 days, therefore, the same is hereby condoned and application is hereby disposed off.

Main Case

2.                The appellant/complainant(hereinafter referred as “the complainant”) has filed the present appeal against the order dated 15.10.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar (hereinafter referred as “the District Forum”) in consumer complaint No.181          dated 29.5.2014 vide which the complaint filed by the complainant was dismissed. 

3.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the respondents/opposite parties(hereinafter referred as ‘the OPs’) on the allegations that the Ops had floated a scheme known as “Surya Enclave Extension (94.97 Acre) Development Scheme”. The complainant had applied for the allotment of plot of 100 sq. yards in the general category vide application No. 081880 by depositing earnest money of Rs. 1.70 lacs vide pay order  No. 362236 dated 5.9.2011. In the draw held on 4.11.2011, the complainant was allotted plot No. 176-C. After allotment, the complainant visited the site of the scheme in the month of March, 2012 for inspection and verification about the development work at the site of the plot. The complainant was shocked and surprised to know that the site of the scheme area was lying absolutely in an ignored condition. There was no sign of development at the site. It was not possible to identify and locate the plot. No roads were marked or constructed at the scheme site. So much so even the possession of the scheme area was not taken by the Ops. The original land holders had not allowed the Ops to take the possession of site in question and had obtained the stay order against the Ops for taking the possession of the scheme land, therefore, the object of applying in the said project of the complainant was rendered frustrated. The Ops had floated the said development scheme in contravention of the instructions of first having obtained the possession of the scheme land and the Ops could not develop the scheme land for want of possession. Although the complainant was ready with the money but he did not wish to get his hard earned money struck up in an undeveloped area. The complainant sought some clarification and relevant documents from the office of the Ops regarding the possession of the site of the scheme land and the allotted plot lying on the road, connecting the allotted plot with the rest of the colony and the basic amenities like sewerage, water supply and other facilities for enjoying the possession. The complainant sent repeated requests and reminders to the Ops but the Ops failed to reply to any of the letters, which amounted to deficiency in services on the part of the Ops. Hence, the complaint with a request to the Ops for cancellation of the plot and direct that amount deposited be refunded to the complainant alongwith damages of Rs. 50,000/-, litigation expenses of Rs. 20,000/- and in all Rs. 2,42,000/-.

4.                The complaint was contested by the OPs, who filed written reply taking preliminary objections that the complaint filed by the complainants was vexatious. He was allotted plot No. 176-C in the scheme known as “Surya Enclave Extension Development Scheme”. In the terms and conditions No. 1 & 5, he was required to deposit 1/4^th the price of the plot within 30 days of the allotment and on failure, earnest money deposited stand forfeited, therefore, his complaint was not maintainable and had no locus-standi to file this complaint. It was also time barred and does not give any cause of action to file the complaint against the Ops. On merits, the same view was reiterated and the complaint was without merit and it be dismissed.

5.                The parties led evidence in support of their respective evidence. The complainant had tendered into evidence his affidavits Exs. C-A and C-B and documents Exs. C-1 to C-10. The OPs had tendered into evidence affidavit Ex. OP-A.

6.                After going through the allegations in the complaint, written reply filed by the OPs, evidence and documents brought on the record, it was observed that only earnest money was deposited; 1/4^th amount was not deposited within 30 days from the date of allotment. As per terms and conditions of the allotment letter, in case 1/4^th amount is not deposited then earnest money is liable to be forfeited as per Condition No. 6 and it has been rightly forfeited in view of this condition. The complaint was without merit and it was dismissed.

7.                In the grounds of appeal, it has been submitted that the District Forum has miserably failed to appreciate the evidence on the record as large number of writs have been filed in the Hon’ble High Court and dispossession of the original owners was stayed by the Hon’ble High Court, therefore, 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 Ops, who were not in possession of the property under which the scheme was notified. Therefore, the impugned order is liable to be set-aside and consequently, the complaint be accepted.

8.                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 various writ petitions filed in the Hon’ble High Court. No doubt the writ petitions 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 writ petition filed before the Hon’ble High Court under which the dispossession of the original owners was stayed. No copy of the writ petition was filed on the 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 earnest 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. He has taken a plea that there was no development at the site. The development would be possible in case the plot owners, to whom the plots have been allotted continuous to deposit the payment as per the schedule. There is condition in the allotment letter also that in case the 25% amount as referred in the allotment letter is not deposited then earnest money is liable to be forfeited and the earnest money filed/deposited by the complainant has been forfeited according to those terms and conditions of the allotment letter.

9.                During the course of arguments, the counsel for the appellant has not been able to convince before this Commission how he will be entitled to the refund of the earnest money when he failed to deposit 25% of the auction money as per the terms and conditions of the allotment letter, therefore, the earnest money was rightly forfeited by the Ops. The counsel for the appellant was unable to make out any point on the basis of which the appeal could be admitted. Therefore, it is dismissed in limine.

10.              The arguments in this appeal were heard on 9.2.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                            (Jasbir Singh Gill)

                                                                                                    Member

 

February 19, 2015.                                                (Harcharan Singh Guram)

as                                                                                                Member