| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 472 of 08-09-2016 Decided on : 8-06-2017 Resham Singh, aged about 57 years S/o Sh. Bikkar Singh, R/o St. No. 11, Ward No. 3, Near Sidhu Hospital, Link Road, Mansa. …...Complainant Versus Punjab Urban Planning & Development Authority ( now Bathinda Development Authority), B.D.A. Complex, Bhagu Road, Bathinda through its Chief Administrator/Estate Officer, Bathinda. .......Opposite party Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. M.P.Singh. Pahwa, President Sh. Jarnail Singh, Member Present : For the complainant : Sh. Ish Kumar, Advocate. For the opposite party : Sh. N.P. Singh, Advocate. O R D E R M. P. Singh Pahwa, President Resham Singh, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Bathinda, Development Authority (here-in-after referred to as 'opposite party'). Briefly stated, the case of the complainant is that the opposite party launched scheme for development of colony at Sugar Mill Site, Faridkot known as PUDA Enclave. As per scheme, residential plots were to be allotted by way of draw of lots. The scheme started on 3-6-2013 and closed on 2-7-2013. As per scheme, applications were invited from the general public for the allotment of the plots of different sizes under different categories. The complainant applied for a residential plot measuring 250 Sq. Yds.in general category. He submitted application No. 515 alongwith earnest money of Rs. 2,25,000/- by taking loan from authorized bank of opposite party. He submitted application well within time. Thereafter the complainant received letter of intent dated 26-12-2013 whereby opposite party informed him that draw of scheme was held on 30-8-2013. The complainant has been proved successful applicant for the allotment of plot measuring 250 Sq. Yds under general category. The complainant was directed to deposit 15% more amount i.e. Rs. 3,37,500/- to complete 25% of the price of plot, within 30 days from the date of receipt of letter of intent.
The complainant made request for extension of time for the deposit of demanded amount. This request was accepted by the opposite party vide letter dated 16-6-2014. Accordingly, the complainant deposited amount of Rs. 3,77,226/- with the opposite party vide demand draft dated 21-7-2014 which included Rs. 39,726/- on account of interest and surcharge on delayed period. This amount was deposited by complainant by getting loan of Rs. 1,80,000/- out of his GPF account. It is further pleaded that at the time of deposit of this amount, the complainant asked the opposite party regarding issuance of allotment letter and regarding progress of work. The complainant also inquired about delivery of possession of plot. The opposite party informed that all the work shall be completed as per terms and conditions mentioned in the brochure as well as mentioned in letter of intent. It is further pleaded that as per scheme, the possession of plot was to be given within two years after completion of development work of colony or within 18 months from the date of issuance of allotment letter whichever is earlier. It is also pleaded that about three months back, when a period of more than 18 months had already elapsed, development work at site has not been started so far. After repeated inquiries from the opposite party, it was conveyed that development work shall be started very soon and completed accordingly as there is some dispute between Sugar Mill (earlier owner of the site). The complainant was in need of residential house at Faridkot but there was no likelihood of start and completion of development work as the opposite party did not make any effort to remove the machinery of the Sugar Mill which is still lying at site. It also did not make any effort to start development work. Under compelled circumstances, the complainant approached opposite party for refund of the entire amount i.e. Rs. 6,02,226/- with interest @ 18% p.a. from the date of respective deposits till actual payment, but to no effect. On this backdrop of facts, the complainant has prayed for direction to the opposite party to refund Rs. 6,02,226/- with interest @18% p.a.; pay Rs. 1,00,000/- as compensation on account of mental tension and agony etc., and Rs. 11,000/- as litigation expenses. Hence, this complaint. Upon notice, the opposite party appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite party raised legal objections that complainant is not consumer. That he has no cause of action or locus standi to file the complaint. That complaint is not maintainable. That as per terms and conditions of the brochure, in case of any dispute, the matter shall be decided by Sole Arbitrator i.e. Chief Administrator PUDA. This Forum has no jurisdiction to adjudicate the complaint u/s 174 of the PUDA Act. That complaint is bad for non joinder and mis joinder of necessary parties. That complainant has not come to this Forum with clean hands and has concealed material and true facts. He is not entitled to any relief. That complaint involves intricate questions of law and facts which cannot be decided in summary proceedings. That complainant is estopped to file the complaint by his act, conduct and acquiescence. The complainant has failed to deposit installments of the plot within time as per terms and conditions of the auction as well as of allotment letter. That complainant has filed a false, frivolous and vexatious complaint. On merits, it is admitted that opposite party invited applications for allotment of 428 freehold residential plots at PUDA enclave (Sugar Mill Site), Faridkot on the basis of terms and conditions of scheme stated in the brochure. It is also admitted that complainant applied for plot of 250 Sq. Yds in the said scheme after understanding terms and conditions of the brochure. Deposit of earnest money is also admitted. It is admitted that complainant deposited 15% amount alongwith interest. It is further pleaded that as per condition No. 14 of the said letter of intent, possession of plot is to be handed over to the allottee after completion of development work at site or 18 months from the date of issue of allotment letter whichever is earlier. It is also mentioned that complainant never approached the opposite party any time nor he applied for refund as alleged. After controverting all other averments, the opposite parties prayed for dismissal of complaint. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence Brochure (Ex. C-1), photocopy of letter of intent (Ex. C-2), photocopy of letter (Ex. C-3) photocopy of DD (Ex. C-4), photocopy of payment receipt (Ex. C-5), photocopy of passbook (Ex. C-6), photocopy of statement of GPF account (Ex. C-7), photocopy of Adhaar Card (Ex. C-8) and affidavit of complainant (Ex. C-9). In order to rebut this evidence, opposite party has tendered into evidence affidavit dated 9-2-2017 of Gurjant Singh (Ex. OP-1/1) and closed the evidence. Learned counsel for complainant and opposite party have also submitted written arguments. We have heard learned counsel for the parties and gone through written arguments of parties and the record. Learned counsel for complainant has submitted that material facts are not in dispute. It is not disputed that complainant submitted application for residential plot and he was successful in draw of plots. Letter of Intent Ex. C-6 also proves this fact. Of course in Letter of Intent it is mentioned that possession of plot is to be handed over to the alottee after completion of development work or 18 months from the date of issuance of Letter of Allotment. This letter was issued on 26-12-2013. The opposite party was expected to complete development work within given time and at the most within 18 months. The letter of allotment was also to be issued within reasonable time after Letter of Intent. The complainant has pleaded that there is no development work at site. Even machinery of sugar mill is not removed from the site. There is no categorical denial to this averment. There is no assertion of the opposite party that development work is in progress or likely to be completed. Therefore, the averments of complainant are to be accepted. The period more than four years has already elpased from issuance of Letter of Intent. The opposite party is not in a position to deliver possession in future or to develop site. The complainant cannot be expected to wait for indefinite period to make his residence. Therefore, the complainant is entitled to refund of his amount. The opposite party is charging interest @ 12% p.a. with 3 to 5% penal interest in case of delay in payment. As the opposite party has delayed the development and delivering the possession, therefore, the complainant is also entitled to 18% interest on his amount. The complainant has been made to suffer unnecessarily for delay in development and delivery of possession, so he is entitled to compensation as prayed for. In support of his submissions, learned counsel for the complainant has cited decision of Hon'ble National Commission referred in Revision Petition No. 499 of 2017 decided on 28-3-2017 in case titled Punjab Urban Planning and Development Authority Vs. Darshan Devi. On the other hand, the learned counsel for the opposite party has submitted that complainant himself has relied upon Letter of Intent (Ex. C-6). The complainant has also produced on record Brochure (Ex. C-2). In both these documents, it is categoricaly mentioned that possession would be handed over after completion of development work at site or 18 months from the date of issuance of allotment letter. Admittedly, the complainant has not been issued any allotment letter so far. Therefore, the complainant has no cause of action to file any complaint till issuance of allotment letter. It is further submitted by learned counsel for the complainant that even otherwise the complainant has not submitted request for claiming refund of the amount paid by him. The complainant was irregular in making payment of his due installments. In such a situation, the opposite party can impose penalty as provided in Clause 14 of Letter of Intent. Therefore, the complaint is also premature. We have carefully gone through the record and have considered the rival contentions. Some facts are not in dispute. It is not disputed that complainant submitted application for plot of 250 Sq. Yds in PUDA Enclave, Faridkot and he was successful in draw of plots. The opposite party issued Letter of Intent dated 26-12-2013 (Ex. C-2). The applications were invited on the basis of Brochure (Ex. C-1). Of course both these documents reveal that possession is to be delivered after completion of development work at site or 18 months from the date of issuance of letter of allotment whichever is earlier. The allotment letter has not been issued so far. The letter of intent was issued on 26-12-2013. The opposite party was expected to complete the development work within reasonable time which at the most can be two years. This period expires on 26-12-2015. So far no allotment letter has been issued to the complainant. In complaint, the complainant has pleaded that opposite party has failed to complete the development work. The development work at site has not been started. There is no categorical denial of this averment. There is no assertion by the opposite party that development work is already in progress or near completion. Therefore, under the shelter of condition No. 14, opposite party cannot postpone the matter for indefinite period. In the case of Punjab Urban Planning and Development Authority Vs. Darshna Devi (Supra) also, similar condition was inserted in the Letter of Intent. It was observed that :- “The question is does this mean that by providing the stipulation in clause 12, 21 & 22 of Letter of Intent, the opposite party can delay the delivery of possession of subject plot to the complainant for indefinite period. Our answer to the question is a firm 'No'.” These observations also fully apply to the facts of the case in hand because in this case also, there are similar stipulation in the Letter of Intent. Now the point is whether the opposite party can impose any penalty under condition No. 26 of Letter of Intent. At the cost of repetition, the complainant has not breached any condition. The complainant is claiming refund as the opposite party has failed to complete the development work and deliver possession. In these circumstances, the opposite party will not be entitled to impose penalty under condition No. 26. For the reasons recorded above, this complaint is partly accepted with cost of Rs. 5,000/-. The opposite party is directed to refund the amount of Rs. 6,02,226/- received from the complainant, with interest @ 12% p.a. from the date of deposit till refund. It is made clear that complainant will be liable to complete the formality, if any, required for claiming refund. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 08-06-2017 (M.P.Singh Pahwa ) President (Jarnail Singh ) Member
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