Punjab

StateCommission

CC/594/2017

Jiwan Kumar - Complainant(s)

Versus

GMADA - Opp.Party(s)

Ravi Kant Sharma

11 Jul 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,    PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   Consumer Complaint No.594 of 2017

 

                                                          Date of Institution   : 24.07.2017      

                                                           Order Reserved on : 09.07.2018

                                                          Date of Decision     : 11.07.2018

 

Jiwan Kumar s/o Sh. Sham Lal, resident of Shivjiram Thekedar Street, Jawahar-Ke-Road, Mansa.        

                                                                                                                                                                                                                                                     ….Complainant

                                      Versus

 

1.      The Chief Administrator, GMADA, PUDA, Bhawan, Sector 62,          SAS Nagar, Mohali.

 

2.      Estate Officer, (Dashmesh Nagar), PUDA Bhawan, Sector 62,         Mohali.

                                                                       …. Opposite parties

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainant         :   Sh.Ravi Kant Sharma, Advocate

          For the opposite parties   :   Sh.Jashan Preet Singh, Advocate

  …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs, on the premise, that he applied for residential plot of 400 sq. yard  in 'A' category in Dashmesh Nagar at Anandpur Sahib, vide Form no.1803 and was successful in the draw of lots with regard to allotment of plot no. 53. The total sale consideration of the  allotted flat was Rs.24 lac and letter of intent was issued to him by OP, vide no.GMADA-EO/2012/SPL-96 dated 18.10.2012. He had deposited Rs.2,40,000/- with OPs before issuing letter of intent as earnest money. He further deposited 20%  of the price i.e. Rs.4,80,000/- on 16.11.2012 with OP after issuing letter of intent. The balance payment was required to be deposited in six half yearly installments as per 'plan-A'. He paid a total price of Rs.26,07,600/- to OPs. He received letter dated 26.04.2017 to receive possession of the plot from OPs, whereas demand of Rs.1,20,000/- as balance i.e. 5% payment of the total sale price was made. He found that the development work was yet required to be done, as per letter dated 18.10.2012. No roads were constructed by OPs. No street lights were installed by OPs and no sewerage was laid in the project by OPs, where the allotted plot of the complainant is located. The land of the plot has been covered by uneven rocks and area appears to be that of forest area. Squatters and other persons have occupied the possession of the land, which was going to be given to complainant. A court case has also been pending to this effect and there is no likelyhood of getting actual physical possession of the plot by complainant. At the time of issuance of allotment letter, it was stated that the possession of the plot would be offered after 18 months from the date of issuance of letter of intent i.e. 18.10.2012, but plot has not been allotted despite lapse of above period by OPs. Letter of possession dated 26.04.2017 was issued by OPs to complainant without proper development of the area, where plot was going to be given to him. The complainant has been disappointed to see the neglected developmental affairs on the allotted plot by OPs. He has alleged deficiency in service on the part of OPs, despite deposited amount of Rs.26,07,600/- till December 2015, but no development work has been done by OPs. He prayed that  direction be given to OPs to refund the deposited amount of Rs.26,07,600/- with interest @ 18% p.a., besides compensation of Rs.1 lac for mental harassment and Rs.55,000/- as costs of litigation.

2.                Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is without cause of action. The complainant has no locus standi to file the complaint. Jiwan Kumar complainant applied for allotment of 400 sq. yard plot in category 'A' in Dashmesh Nagar Anandpur Sahib and he was successful for plot no. 53 in the draw of lots held on 14.08.2012.  Letter of intent was issued to complainant, vide letter no.16848 dated 26.04.2017. He was requested to deposit the penalty of Rs.8155/- against the outstanding dues of this plot. As per clause 7 of the terms and conditions of the allotment letter, the allottee would be required to take physical possession of the site within 90 days from the date of issuance of allotment letter. The site is offered on 'as is where is' basis and the allottee shall not entitled to claim any rebate or refund on any ground whatsoever. The authority will not be responsible for leveling the uneven site. The complainant never refused to accept the allotment of the plot allotted to him. The complainant also never asked for any refund. In the allotment letter, there is an arbitration clause. Clause 25 of the allotment letter states that the dispute and /or difference, which may arise in any manner touching or concerning this allotment shall be referred to the independent arbitrator, who shall be approved by the Chief Administrator GMADA. As per condition no.2 of the allotment letter, the complainant was to deposit the balance 5% price of the plot within 30 days from the issuance of allotment letter and as per condition no.7, the allottee was required to take the physical possession within 90 days from the issuance of this allotment. According to condition no.19 of letter of intent, the complainant could withdraw from the scheme only in case the possession of the plot was not delivered to him within 18 months from the date of issuance of letter of intent, but at that, he did not seek refund. After completion of development of Urban Estate namely Dashmesh Nagar at Anandpur Sahib, allotment, letter has already been issued to complainant on 26.04.2017, hence said condition no.19 of the letter of intent is not applicable. Rather, refund can only be made to the complainant only after cancelling the allotment as per the terms and conditions of the allotment letter under the provisions of the Punjab Regional and Town Planning and Development (Amendment) Act 2013. On merits, OPs also controverted the allegations of the  complainant with regard to his entitlement to refund of the  deposited amounts on the above referred allegations and prayed for dismissal of the complaint.

3.                The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-6 and closed the evidence. As against it, OPs tendered in evidence affidavit of Sh. Mahesh Bansal Estate Officer (Regulatory) as Ex.OP-A along with copies of documents Ex.R-1 to Ex.R-2 and closed the evidence.

4                 We have heard learned counsel for the parties and have also examined the record of the case.

5.                The counsel for OPs argued that there is an arbitration clause in this letter of intent and hence consumer complaint is not maintainable. We find no force in this submission of OPs. The matter has been settled by larger bench of Hon'ble National Commission in Consumer Complaint no. 701 of 2015, decided on 13.07.2017 titled as "Aftab Singh Vs.EMAAR MGF Land Limited and another". The National Commission has held in this authority that an arbitration clause in the afore-stated kind of Agreements between the complainants and builder cannot  circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act 1996. Against this order of the National Commission, Civil Appeal Nos.23512-23513 of 2017 titled as EMAAR MGF Land Limited and another Vs. Aftab Singh" was filed by OPs before the Top Court of India, which has since dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the existence of an arbitration clause is not a bar to resolution of this dispute by the Consumer Forum. Even otherwise, the Apex Court has also so held in "National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another" 2012(2) CLT-382/383 and in Fair Air Engineers (P) Ltd vs. N.K. Modi (1996) 6 SCC 385 that Section 3 of CP Act gives additional remedy to consumers to avail of his remedy as per his choice. In view of Section 3 of C.P Act conferring the additional remedy. We find no force in this submission of OPs and repel the submission of OPs.

6.                Pleadings of the both parties have been carefully perused by us with the able assistance of counsel for the parties. The evidence on the record has also been examined by us. Ex.C-A is affidavit of Jiwan Kumar complainant in support of his case. He has testified his case, as pleaded in the complaint on oath in this affidavit. Ex.C-1 is acknowledgement, vide Form no. 1803 dated 15.06.2012 regarding receipt of booking amount of Rs.2,40,000/- by OPs. Ex.C-2 is letter of intent for the allotment of residential plot no. 53 measuring 400 sq. yard in A category in Dashmesh Nagar at Anandpur Sahib was issued by OPs to complainant. The payment plan consist Plan A and B in clause 6 of letter of intent. The complainant opted for Plan B for payment of six half-yearly installments, as given out in Clause 6 of letter of intent. Clause 19 of letter of intent deals with this proposition that possession of the plot shall be handed over to the allottee/complainant after completion of development works within a period of 18 months from the date of issuance of this letter of intent. 18 months period for delivery of possession after completion of development work was to commence from 18.10.2012, which would come to an end on 18.04.2014 approximately. Allotment letter sent by OPs to complainant is Ex.C-3 dated 26.04.2017. Clause 7 of allotment letter dated 26.04.2017 has inserted that in case allottee failed to take possession of the plot within 90 days from the date of this allotment letter, it shall be deemed to have been handed over to him. There is direct clash between letter of intent Ex.C-2 pertaining to clause 19, whereby OPs represented to allottee to deliver the possession within 18 months from the date of issuance of letter of intent after completion of development works at site. Subsequently, changing of this proposition in allotment letter by OPs in Clause 7 of allotment letter dated 26.04.2017 is nothing less than unfair trade practice  on their part.          Consequently, we have to rely upon original representation of OPs undertaking to complete the development work at site within 18 months from the date of issuance of letter of intent dated 18.10.2012. The period of 18 months has expired, but grievance of the complainant is that OPs have not completed the development work and as such, they could not hand over its possession in an  undeveloped state of affairs. The complainant served notice regarding refund of the amount upon OPs on 22.05.2017, vide Ex.C-4 and Ex.C-5 dated 19.06.2017.

7.                Even if it is argued by counsel for OPs that no postal receipts have been attached by complainant to that effect, even then the mere filing of the complaint by complainant expressed his intention to seek refund of the deposited amount, vide Ex.C-6 (colly) from the date of deposit of the amount by complainant. As against it; OPs took the plea that they developed the project, as agreed upon, but complainant has not received its possession. Affidavit of Estate Officer GMADA (PUDA) Ex.OP-A has been scrutinized by us. Allotment letter is Ex.R-1. Ex.R-2 is letter dated 16.03.2018 by Superintendent Engineer GMADA to the effect that the roads are motorable and only P.C layer has to be put on it, which would be put by 30.04.2018. Electricity and public works would be completed by 30.04.2018 and development of parks would be completed by 30.06.2018. As per representation of OPs to complainant, contained in clause 19 of letter of intent Ex.C-2, OPs undertook to complete the development works at site within 18 months from the date of issuance of this letter of intent. Scheduled period of 18 months has expired on 18.04.2014. The document Ex.R-2 is after four years therefrom in the year 2018. Consequently, the complainant cannot be forced to receive the possession,  when OPs have not developed the  project within the scheduled time. OPs are not justified in utilizing the hard-earned money of the complainant without correspondingly completing the project in general and plot of the complainant in particular. We record this finding that OPs failed to develop the project within a period of 18 months, as represented and scheduled by them in clause 19 of letter of intent Ex.C-2 dated 18.10.2012. Non-development of the project within scheduled time is deficiency in service, besides unfair trade practice on the part of OPs justifying the complainant to seek refund of the deposited amount with interest thereupon. OPs are held to be deficient in service and guilty of unfair trade practice in this case also.

8.                As a result of our above discussion, we accept the  complaint of the complainant and direct OPs to refund the deposited amount of Rs.26,07,600/-  to complainant with interest @ 12% p.a from the date of their respective deposits till actual payment. The complainant is also entitled for Rs.50,000/- as compensation for mental harassment and Rs.20,000/- as costs of litigation.

9.                Arguments in this complaint were heard on 09.07.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

10.              The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

July 11,  2018                                                                

(ravi)