National Consumer Disputes Redressal
Bathinda Development Authority vs Rajeev Kumar on 17 January, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 12 OF 2016 (Against the Order dated 03/08/2015 in Appeal No. 1359/2014 of the State Commission Punjab) 1. BATHINDA DEVELOPMENT AUTHORITY BDA COMPLEX,BHAGU ROAD, THROUGH ITS ESTATE OFFICER, BATHINDA PUNJAB ...........Petitioner(s) Versus 1. RAJEEV KUMAR S/O SOHAN LAL, R/O HOUSE NO-16, DR.CHOPRA STREET , MALL ROAD, GONIANA MANDI, TEHSIL AND & DISTRICT : BATHINDA PUNJAB ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Petitioner : Ms. Rachana Joshi Issar, Ms. Vandana Mishra, Ms. K. Vaijayanthi & Mr. Shailabh Pandey, Advocates. For the Respondent : Mr. Sumeer Sodhi, Amicus Curiae with Ms. Shreya Nair, Advocate (in RP/12/2016).
Dated : 17 Jan 2019 ORDER PER HON'BLE M. SHREESHA, MEMBER
Aggrieved by the order dated 03.08.2014 passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh, (for short "the State Commission") in First Appeals bearing No. 483 and 1359 of 2014, Bathinda Development Authority (hereinafter referred to as "BDA") has preferred these Revision Petitions bearing No. 11 and 12 of 2016 respectively under Section 21 (b) of the Consumer Protection Act, 1986 (for short "the Act"). By the impugned order, the State Commission has dismissed the Appeals preferred by BDA against the order dated 10.02.2014 in CC No. 478/2013 and order dated 05.08.2014 in CC No. 243/2014 respectively of the District Consumer Disputes Redressal Forum, Bathinda (for short "the District Forum").
2. The District Forum vide its order dated 10.02.2014 in CC No.478 of 2013 allowed the Complaint and directed BDA to pay interest @ 12% p.a. on the total amount deposited by the Complainant from the date of filing of the Complaint till the date of completion of the development work and delivery of the possession of the plot together with ₹15,000/- towards compensation and costs. In CC No. 243 of 2014, the District Forum vide order dated 05.08.2014 party allowed the Complaint and directed BDA to complete the development work at the subject site and to withdraw the demand raised through letter No. 1295 dated 28.2.2014; deliver the possession of the subject plot within a period of 30 days from the date of the receipt of the order together with interest @ 12% p.a. on the deposited amount from the date of filing of the Complaint till the date of completion of the development work. An amount of ₹5,000/- was awarded towards compensation and costs.
3. Since the facts in these Revision Petitions are similar and they are against the same common impugned order they are being disposed of by this common order. For the sake of convenience RP No. 11 of 2016 (BDA vs. Gurdas Singh) is being taken as a lead case.
4. The brief facts as stated in the Complaint are that the plot bearing No. 1066, admeasuring 150 sq. yds, situated at Phase-IV & V Model Town, Bathinda was allotted by BDA to Sh. Deepak Saini vide Letter of Intent No. 1613 dated 29.04.2011. Sh. Deepak Saini deposited the amount of ₹1,65,000/-, ₹2,47,500/- and ₹2,34,300/- to BDA. Subsequently the Complainant purchased the said plot from Sh. Deepak Saini for the residential purpose and the same had been transferred in his name by BDA vide letter No. BDA/Bathinda/2011/564 dated 25.11.2011. After the purchase of the said plot, the Complainant deposited a total amount of ₹12,90,300/- to BDA. The total cost of the plot was ₹16,50,000/- and thus almost 78% of the total cost of the plot in question had been deposited by the Complainant with BDA. As per condition No. 15 of the Letter of Intent dated 29.04.2011 issued by BDA, the possession of the subject plot was to be handed over to the Complainant, after completion of the development work at the site, within a period of 1.5 years from the date of issuance of the Letter of Intent and in case due to any reason, BDA failed to deliver the possession of the plot within the stipulated period, the Complainant would have the right to withdraw from the scheme by moving an application to the Estate Officer.
5. It was averred that BDA collected crores of rupees for a period of around 2 years from the allottees of plots in Phase 4 and 5 but failed to complete the development work and hand over the possession of the plots within the stipulated period. The progress of the work was very slow and BDA failed to complete even 30% of the total work. The Complainant and other allottees time and again visited the office of BDA and requested to complete the development work and to deliver the possession of the plots, but in vain. Hence the Complainant approached the District Forum seeking the following reliefs:-
"i) Complete the development work within the specific period to be assessed and directed by the District Forum and to hand over the possession of the plot to the Complainant within the said period.
ii) Defer the payment schedule of the balance allotment price till the date of completion of the development works and delivery of possession of plot in question to the Complainant.
iii) Pay interest @ 2% per month w.e.f. the date of payment of the amount by the Complainant to BDA till the date of delivery of possession of the plot to the Complainant along with ₹2,00,000/- towards compensation towards mental tension, agony, botheration, harassment and humiliation suffered by the Complainant &
iv) Pay a sum of ₹11,000/- towards costs."
6. BDA filed their Written Version resisting the Complaint on the ground that it is clearly mentioned in condition No. 15 & 16 of the Letter of Intent that in case for any reason, BDA is unable to deliver the possession of the plot within the stipulated period, the Complainant would have a right to withdraw from the scheme by moving an application to the Estate Officer and in such a situation, BDA would refund the entire amount deposited by the Complainant along with simple interest @ 10% p.a, There would be no further liability on behalf of BDA.
7. The State Commission dismissed the Appeal after observing thus:-
" Certainly, the OPs did not stick to the period for delivery of possession. In case we go through the entire terms and conditions of the Letter of Intent, in case the balance amount was to be paid in instalments then it is to be paid along with interest @ 12% and for the delay period penalty @ 3% upto one year, 4% upto 2 years and 5% upto 3 years has been imposed, therefore, in case the OPs does not stick to the time schedule then they should also compensate the allottee in case the allottee does not prefer to withdraw it. Otherwise the counsel for the complainant/respondent has referred various judgments of the Hon'ble National Commission where compensation was allowed for non-delivery of possession within a specific period. A reference has been made to 2013(3) CPJ (N.C.) 247 "Silver City Housing and Infrastructure Ltd. and Anr. Versus Sumit Kumar." In that case, the respondent had paid ₹13,55,000/- out of the total amount of ₹14,50,000/-. The direction was issued to the respondent to deliver the possession along with compensation of ₹1 lac. In other judgment 2008(2) CPJ (N.C.) 351 "Kunj Behari Mehta & Anr. Versus Ansal Properties & Industries Ltd.". In that case, for later delivery of the possession, the Builder was held liable to pay interest @ 12% on the amount deposited by the complainant. In another judgment reported in 2013 (14) CPJ (NC) 354 "Bhagat Singh & Anr. Versus Adharshila Towers Pvt. Ltd. & Anr. In that case, compensation of ₹3 lac was awarded for late delivery of possession.
No contrary judgment was cited by the counsel for the appellant. Therefore, we are of the opinion that in case the OP did not stick to time schedule as given by them and in case they are charging interest @ 12% on the payments made in instalments and penal interest on the delayed payment then awarding of the interest on the amount deposited by the complainant @ 12% and that too from the date of filing of the complaint till the completion of the development work is quite reasonable seeing the case of both the parties." (Emphasis Supplied).
8. Learned Counsel for the Petitioner vehemently contended that Letter of Intent is not a concluded contract and that the District Forum had erred in granting interest @ 12% p.a. as this would only unduly enrich the Complainant. Learned Counsel relied on Clauses 13, 15 and 16 of the Letter of Intent dated 29.04.2011 which are reproduced as under:-
"13. The said plot is being offered on "as is where basis is"
"15. The possession of the said plot shall be handed over to the allottee after completion of development works at site within a period of 1.5 years from the date of issuance of this Letter of Intent. In case for any reason, B.D.A. is unable to deliver the possession of plot within this stipulated period, you will have a right to withdraw from the scheme by moving an application to the Estate Officer and in such case B.D.A. shall refund the entire amount deposited by the applicant along with 10% simple interest. Apart from this, there shall be no other liability of the Authority."
"16. In case B.D.A. is unable to give the possession of the plot due to any reason, the allocation of the plot shall be cancelled and BDA shall refund the entire amount deposited by you along with a simple interest @ 10 p.a. Apart from this there shall be no other liability of the Authority."
9. Learned Counsel for the Petitioner further contended that it was only to avoid the liability to raise construction that the Complainant had preferred to file this Consumer Complaint with an ulterior motive of undue enrichment.
10. Learned Amicus Curiae Mr. Sumeer Sodhi, appearing for the Complainant in RP/12/2016 argued that the Letter of Intent is an Invitation to Offer for which consideration was paid, there was a 'Time Period of one and half years mentioned for the completion of developmental work and, therefore, as per Section 10 of the Contract Act as there is an 'Offer', 'Consideration paid', 'a specified Time Period' and an 'Acceptance', the Letter of Intent ought to be construed as a Concluded Contract. The State Commission in Appeal No. 1359 of 2014 which is the subject matter in RP No. 12 of 2016, has observed that in the Allotment Letter No. 1295 dated 28.02.2014, an initial demand of 2% cess towards "The Punjab State Cancer & Drug Addiction Treatment Infrastructure Fund" was demanded and that BDA had not placed on record the relevant scheme under which this amount of cess was recovered from each allottee. It was further observed that the cess did not cover any of the conditions contained in the Letter of Intent. In the absence of the said scheme having been placed before the State Commission it was held that the excess amount of ₹33,000/- demanded by BDA was illegal.
11. We find it a fit case to place reliance on the judgement of this Commission in Prem Chand Dhiman Vs. Haryana Urban Development Authority 2017 (1) CPJ 105 in which it has been clearly laid down that as HUDA committed an inordinate delay in the delivery of possession of the plot, the Complainants could not construct their house on time and during the relevant period the cost of construction escalated substantially for which the Complainant was entitled to reasonable compensation. In Punjaburban Planning & Development Authority Vs. Darshana Devi 2017 (3) CPJ 134 this Commission has laid down the ratio that when possession of plot was not given within reasonable time, concurrent finding of fact by the Fora below holding the Petitioner authority guilty of deficiency in service bordering on unfair trade practice was upheld. In that case no allotment letter was issued. Hence the ratio laid down by both the afore-noted judgements squarely apply to the facts in the instant case.
12. We find force in the contention of the Learned Amicus Curiae that when the developmental work was incomplete, the act of BDA in issuing an allotment letter in the year 2014 not only amounts to deficiency in service but also unfair trade practice. It is further observed from the record that for any delay made in the payments to be made by the purchasers, BDA charges interest in the following manner:-
UP To one year Normal interest @ 12% p.a. + penalty @ 3% p.a. for the delayed period.
If the delay is upto 2 years Normal interest @ 12% p.a. + penalty @ 4% p.a. for the delayed period.
If the delay is upto 3 years or more.
Normal interest @ 12% p.a. + penalty @ 5% p.a. for the delayed period.
13. Having regard to the afore-noted interest rates and in order to balance the equities and keeping in mind the Principles of Natural Justice and Parity we are of the view that awarding of reasonable interest @ 12% p.a. concurrently by both the fora below is justified.
14. For all the afore-noted reasons we do not find any infirmity or illegality in the well-considered and concurrent orders of both the Fora below to exercise our limited jurisdiction as envisaged by the Hon'ble Supreme Court in Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. (2011) 11 SCC 269.
15. Both these Revision Petitions are dismissed accordingly with no order as to costs.
16. We appreciate the assistance rendered by the Learned Amicus Curiae Mr. Sumeer Sodhi. The Registry is directed to pay an amount of ₹20,000/- to the Learned Amicus Curiae from the Consumer Legal Aid Account, if not already paid.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER