Delhi

StateCommission

CC/10/216

MRS. UMA MITTAL - Complainant(s)

Versus

YAMUNA EXPRESSWAY INDUSTRIAL DEVELOPMENT AUTHORITY & ORS. - Opp.Party(s)

23 Aug 2017

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 23.08.2017

 

Complaint Case No. 216/2010

 

 

          In the Matter of:

         

         

Uma Mittal W/o Shri Brij Mohan Mittal R/o 2404, Sector-16, Faridabad-121002 (Haryana)                                                                              …… Complainant        Versus     1. Yamuna Expressway Industrial Development Authority (Through Chief Executive Officer) A-1, 1st Floor, Commercial Complex Distt. Gautam Buddh Nagar, U.P. Pin-201308   2. Axis Bank Ltd. Corporate Office, Bombay Dyeing Mills Compound Pandurang Budhkar Marg, Worli Mumbai-400025   3.   The Branch Manager Axis Bank Ltd. Plot No. 4, Aditya Corporate Plaza Community Centre Karkardooma Delhi-110092                                                    …….Opposite Parties

CORAM

 

Justice Veena Birbal, President

Ms. Salma Noor, Member

 

1.   Whether reporters of local newspaper be allowed to see the   judgment? 

2.   To be referred to the reporter or not?

 

Ms. Salma Noor, Member

1. This is a complaint under Section 12 of the Consumer Protection Act 1986 (in short ‘the Act’) filed by the Complainant.
2. Brief facts of the case are that the OP-1 i.e. Yamuna Expressway Industrial Development Authority launched a scheme called Residential Plots YEA-2009 (1) scheme. In that scheme the complainant applied for a residential plot in General-E Category for an area of about 300 Sq. mtr. on an application downloaded from the website of OP-1. The said application of the complainant was deposited at the Aditya Corporate Plaza, Community Centre, Karkardooma, Delhi branch of OP-2 bank i.e. OP-3 branch who was one of the bankers authorized for this purpose by OP-1 acting as their agent. Along with the said application, the complainant also submitted DD No. 598653 of Rs. 100500/- dated 30.04.2009 issued by Punjab National Bank, Faridabad towards earnest money. As per the scheme of the OP-1, the allotment was to be made as per the result of draw from applicants who had submitted the application form along with earnest money. On 10.11.09, OP published on their Web Site, the list of the applicants from which list, the draw was to be made on 17.11.2009 by the OP-1. The grievance of the complainant is that her name was not there in the list of applicants published by OP-1 on their website on 10.11.2009. Thereafter, the complainant immediately rushed to the bank branch OP-3 who was the agent of OP-1 for collection of application forms and earnest money with a written complaint on the same date i.e. 10.11.2009 to take necessary action so that the complainant could be considered for the draw to be held on 17.11.2009. But no action was taken on her complaint. Further, allegation of the complainant is that therefore she filed an RTI application in the office of the OP-1 to know whether her application was considered for the draw or not. The RTI application was replied by OP-1 vide its letter dated 10.12.2009 informing that she was not considered for the above mentioned draw as they have never received any application on behalf of the complainant. Thereafter, complainant sent legal notices to OPs dated 14.12.2009 and dated 10.04.2010 which were not responded by the OPs.
3. Hence the present complaint has been filed with following prayers:
   1. No. 1 to Allot a premium plot to the complainant of her choice of an area of about 300 sq. mts. which could have been subject of allotment under Residential Plots Scheme YEA-2009 (1) & in same locality as that of YEA- 2009 (1) scheme.

Or in the alternative Order the Opposite parties.

2. Jointly and severally to pay the actual premium as on the date of payment, as in secondary market on said plot, to the complainant, so that complainant can purchase the said plot as in prayer (a) above.
3. That the costs of these proceedings alongwith present compensation/claim as on today is Rs. 50,00,000/- as premium, compensation and damages in favour of the complainant and against the opposite parties.
4. Pass any such other and further order(s) as this Hon’ble Commission may deem fit and necessary.

 

4. On notice OP-1 appeared and filed written statement. OP-2 and OP-3 appeared but did not file written statement and were proceeded ex-parte. Subsequently, the complaint was dismissed in complainant’s default vide order dated 12.10.2012 and was restored in view of the order of Hon’ble National Commission on 09.02.2013. Therefore, notices were issued to the OPs again. On notice counsel for OPs- 2 & 3 appeared but despite given sufficient opportunities did not file the written statement and their right to file written statement was closed on 14.01.2015. None appeared on behalf of the OP-1 despite service though its written statement is on record, which was filed before dismissal of the complaint.
5. In the written statement OP-1 has taken a plea that this Commission does not have territorial jurisdiction to entertain this Complaint and further it did not receive application of the complainant for allotment of a plot under the abovesaid scheme because of this reason her name could not be included at the time of draw of lots for allotment of plot. It is submitted that OP-3 had received the application but did not forward it to OP-1 therefore negligence if any, it lies with OPs- 2 & 3. Further, OP-1 has denied that OPs- 2 & 3 were working as its agent. According to OP-1, OPs- 2 & 3 were working as an agent of the complainant  who were liable to collect the application and forwarded it to the OP-1.
6. Complainant has filed rejoinder to the written statement of OP-1 and evidence reiterating the same facts as averred in the complaint.
7. Heard the AR of the complainant and perused the evidence available on the file. It is confirmed that banks draft of Rs. 100500/- and bank’s cheque of Rs. 500/- which comes total Rs. 101000/- has been deposited in the Bank Branch of OP-3 from where the money was  supposed to be sent to the account of OP-1 along with the application form. But OP-3 did not send the application form to the office of OP-1. It is not disputed that complainant deposited Rs. 100100/- along with the application with OP-3 who did not forwarded the application to OP-1. This position is also confirmed through RTI application filed by the complainant before OP-1 vide letter dated 10.12.2009 asking why her name was not considered for draw of lots and in reply she came to know that her application was not considered for draw due to non-receipt of her application form. In such circumstances, we cannot fasten any liability on OP-1 when it has not received the application form how it could have been considered for draw of lots for the allotment of plot. Hence, there is no negligence proved on the part of OP-1 and therefore complainant is not a consumer qua OP-1.
8. As discussed above, in our view the responsibility lies with OP-3, the bank who received the application but did not forwarded it to OP-1 for draw of lots and is liable to compensate the complainant. As OPs- 2 & 3 has not filed written statement or evidence. The evidence of complainant establishes negligence act of OP-2 & OP-3 and that they have committed the error/negligence by not forwarding the complainant’s application to OP-1.
9. We hold OPs- 2 & 3 deficient in service. Looking into the prayer of the complaint it is not clear that whether the amount deposited by the complainant is refunded to him or not. If the amount is not refunded OPs- 2 & 3 will refund the amount to the complainant with 9% per annum from the date of deposit till realization. Further OPs- 2 & 3 will also pay a compensation of Rs. 200000/- to the complainant for the negligence on their part.

10.          A copy of the order be sent to the parties free of charge as per rules.

 

 

                    File be consigned to record room.

(Justice Veena Birbal)

President

 

 

(Salma Noor)

Member