State Consumer Disputes Redressal Commission
Jalandhar Improvement Trust vs Vikas Mittal on 1 June, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1647 of 2014
Date of institution: 22.12.2014
Date of Decision: 01.06.2016
Jalandhar Improvement Trust, Jalandhar through its Chairman/E.O.
Appellant/OP
Versus
Vikas Mittal son of ML Mittal R/o House No. 289, Sector-4, Panchkula.
Respondent/Complainant
First Appeal against the order dated 5.11.2014
passed by the District Consumer Disputes
Redressal Forum, Jalandhar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the appellant : Ms. Kavita Arora, Advocate with
Sh. S.C. Pathela, Advocate
For the respondent : None.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/Op(hereinafter referred as Op) has filed the present appeal against the order dated 5.11.2014 passed by the District Consumer Disputes Redressal Forum, Jalandhar(hereinafter First Appeal No. 1647 of 2014 2 referred as the District Forum) in consumer complaint No. 478 dated 12.12.2013 vide which the complaint filed by respondent/complainant(hereinafter referred as complainant) was accepted with the direction to Op to refund Rs. 16,62,332/- to complainant alongwith 9% interest from the date of deposit till the date of payment. Complainant was further awarded Rs. 3,000/- as litigation expenses.
2. Complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against Op on the averments that Op floated a land development scheme at Jalandhar known as "Surya Enclave Extension, Jalandhar as 94.97 acres development scheme" and that it will be in the central and prestigious place of the Jalandhar City. The time was so much essence under the scheme that it was mandatory that construction of building be completed within three years from the date of allotment. Complainant applied for allotment of plot in 200 sq. yards category. In response to his application, on the basis of lucky draw held on 4.11.2011, complainant was allotted plot No. 207-D, measuring 200 yards in the said scheme vide allotment letter No. JIT/2789 dated 26.12.2011. As per the terms of the allotment, Op was to develop the land within 2½ years and construction of the house was to be completed within three years. Complainant paid to Ops the amount as under:-
Sr. Particulars of payment Date of Receipt Amount (in No. payment no. Rupees)
1. Earnest Money With the Rs. 3,40,000/-
application
2. Balance 25% of Price 23.1.2012 50716 Rs. 5,10,000/-
of the plot payable as per allotment letter First Appeal No. 1647 of 2014 3 within 30 days of allotment Cess Fee -do- -do- Rs. 1,36,000/-
Fee for Agreement of -do- -do- Rs. 950/-
Sale
3. Next Installment 6.12.2012 51826 Rs. 5,10,000/-
Installment interest -do- -do- Rs. 1,27,500/-
Penal Interest -do- -do- Rs. 37,882/-
Total Payment 16,62,332/-
3. Complainant in terms of allotment letter not only paid applicable allotment money and also paid fee for execution of sale i.e. Rs. 950/- on 23.1.2012, thereafter, Op was to get executed sale deed and give physical possession of the plot so that the construction could be raised within mandatory period of three years. Complainant being in immediate need of house time and again requested officials of Op for delivering the possession of the plot but they failed to carry out any development work and then to deliver the possession. Being aggrieved with the conduct of Op, the complainant served written notice dated 7.10.2013 asking Op to deliver the physical possession of the plot but with no result. Due to non-delivery of the possession of the plot, the complainant was deprived to raise construction of his house. This act and conduct of Op, amounted to unfair trade practice as well as deficiency in service. Hence, the complaint with a direction to Op to refund a sum of Rs. 16,62,332/- alongwith interest, pay damages of Rs. 1 lac on account of mental tension, harassment and agony, pay Rs.1,50,000/- on account of escalation of the building material and Rs. 11,000/- as litigation expenses.
4. Complaint was contested by Ops, who filed written reply taking preliminary objections that complaint filed by the complainant First Appeal No. 1647 of 2014 4 was false, frivolous and vexatious to their knowledge, therefore, it was liable to be dismissed; complaint was bad for mis-joinder and non-joinder of necessary parties; no cause of action had arisen to the complainant to file this complaint; complainant had concealed the material facts that due to stay order granted by the Hon'ble Punjab & Haryana High Court in CWP No. 3559 of 2011, the possession was not delivered. When the specific request was made to the complainant that if he wanted to refund his money then he should file self declaration /affidavit so that the matter could be referred to the Government but intentionally and deliberately he did not file the same. However, the matter regarding refund of money was sent to Government vide letter No. JIT/8808 dated 27.12.2013. On merits, launching of the scheme was admitted. It was admitted that complainant applied for a plot of 200 sq. yards under their scheme. The payments made by the complainant were admitted as referred in the complaint. The story made up by the complainant as alleged in the complaint was concocted one. It was again reiterated that due to said order of the Hon'ble High Court the possession could not be delivered, therefore, there was no unfair trade practice or deficiency in service on the part of Ops. Complaint was without merit, it be dismissed.
5. The parties were allowed by the learned District Forum to lead their evidence.
6. In support of his allegations, the complainant had tendered into evidence his affidavit Exs. CA & CB, copy of allotment letter Ex. C-1, Form-D Ex. C-2, certificate of PNB Ex. C-3, receipt First Appeal No. 1647 of 2014 5 Exs. C-4 & C-5, letter with postal receipt Exs. C-6 & 7. On the other hand, Ops had tendered into evidence affidavit of Dayal Chand, EO Ex. OP-1/A.
7. After going through the allegations in the complaint, written version filed by Ops, evidence and documents brought on the record, complaint was allowed after observing that Op had failed to deliver the possession of the plot to the complainant obviously due to the stay order passed by the Hon'ble High Court and request of the complainant for refund was referred to the Government vide letter JIT/8808 dated 27.12.2013. In case any stay order was passed by the Hon'ble High Court, complainant is not to blame, in fact the Trust should not have launched the scheme in view of the pending litigation before the Hon'ble High Court, therefore, it was held that complainant is entitled to the refund of the amount deposited. Accordingly, complaint was allowed as referred above.
8. Aggrieved with the order passed by the learned District Forum, the appellant/OP has filed the present appeal.
9. We have heard the learned counsel for the appellant Ms. Kavita Arora, Advocate with Sh. S.C. Pathela, Advocate.
10. In the appeal, it was stated that although the complainant deposited a sum of Rs. 16,62,332/- upto 20.12.2012 but he failed to make the balance payment. The possession of the plot could not be delivered due to stay order passed by the Hon'ble High Court of Punjab & Haryana in CWP No. 3559 of 2011 filed by some of the land owners. The said order was also in respect of the land over which the plot was allotted to the complainant. Ops made every effort to get the First Appeal No. 1647 of 2014 6 stay order vacated. However, the District Forum without appreciating the difficulty (contention) of Op has allowed the complaint. The fact that case of refund of money of the complainant was sent to the Government vide letter No. JIT/8808 dated 27.12.2013 was wrongly mentioned. Amendment was sought before the District Forum but it was not allowed. Therefore, the order passed by the District Forum is not a correct order and is liable to be dismissed. They have also filed an application under Order 41 Rule 27 CPC to place on the record an additional affidavit of Executive Officer of Improvement Trust, Jalandhar that CWP No. 3559 of 2011 in which the stay order granted by the Hon'ble High Court was disposed of and writ petition was dismissed and now they are ready to deliver the possession to respondent/complainant and accordingly, the order passed by the District Forum be modified. Whereas counsel for the respondent/complainant has argued that Op was in the knowledge of the stay order passed by the Hon'ble High Court, therefore, they should not have gone for launching of the scheme and to allot the plots till their title is clear. Complainant has waited for long period and Op was unable to develop and deliver the possession of the plot in question. Therefore, District Forum was justified for refund of the amount deposited by the complainant and the order be upheld.
11. We have considered the contentions as raised by the counsel for the parties. It is an admitted fact that on the basis of scheme launched by Op, complainant had applied for plot of 200 sq. yard and allotment letter Ex. C-1 was issued on 26.12.2011 in which some time frame was given by Op i.e. within the stipulated period of First Appeal No. 1647 of 2014 7 30 days 25% of the required amount was deposited and the remaining amount was to be deposited within a period of 2½ years in instalments and within that period all the facilities were to be completed by Op and within three years from the date of allotment, the construction was to be completed by the complainant, failing which he will have to pay the non-construction charges. However, as is clear and admitted by Op in their written reply that stay order was passed by the Hon'ble High Court in CWP No. 3559 of 2011 in favour of the land owners and in that writ petition Hon'ble High Court had passed an order of status-quo with regard to possession, therefore, the possession could not be taken by Ops. In case possession could not be taken then there was no development and no delivery of possession to the complainant. Although the counsel for Op has not placed on the record, the copy of the writ petition and the order of status-quo passed by the Hon'ble High Court, however, orally it has been stated by the counsel for the complainant that order was passed on 8.3.2011, which has not been rebutted by the counsel for the Op. Therefore, order of status-quo was passed before issuance of the allotment letter. There is a letter issued by the Government of Punjab vide Memo No. 6/44/05-4LG2/16729-90 dated 21.10.2005, wherein after giving a reference of the instructions issued vide letter No. 66-I- 30II-83/7070-7090 dated 23.2.1983 directions were given to all the Trusts to allot/sell only such plot/land, the site of which is available with the Trust free from all encumbrances and it was further mentioned that before the process of allotment/auction of the site is commenced, Chairman and Executive Officers will certify on the First Appeal No. 1647 of 2014 8 record that physical possession of the site of proposed allotment/auction free from all encumbrances/obstructions is readily available for onwards transfer to the prospective allottee/buyer and that there is no physical obstruction to start the construction activities. In case Ops had gone for allotment despite the stay order passed by the Hon'ble High Court and against their own instructions, just to collect the money from the prospective buyers, it amounted to unfair trade practice on the part of Ops. This State Commission decided Consumer Complaint No. 81 of 2013 "Munish Dev Sharma versus Jalandhar Improvement Trust, Jalandhar and another" on 30.7.2014. In that case, complainant had deposited a sum of Rs. 28,22,950/- of the total amount and refund order was ordered alongwith interest @ 9% per annum and the said judgment was upheld by the Hon'ble National Commission in First Appeal No. 1215 of 2014 "Jalandhar Improvement Trust & Anr. Versus Munish Dev Sharma" decided on 1.7.2015 after observing that Ops indulged in unfair trade practice. In that eventuality, the complainant was entitled to refund of the amount. These judgments could not be rebutted by the counsel for the Ops. In case Ops have taken the money but failed to develop the scheme and deliver the possession within the stipulated period then the complainant has no option but to go for refund of the amount, in that way, the refund order passed by the District Forum is in consonance with the decision taken by the State Commission and the Hon'ble National Commission in case "Munish Dev Sharma versus Jalandhar Improvement Trust, Jalandhar and another" (supra). First Appeal No. 1647 of 2014 9
12. With regard to plea taken by Ops in their application under Order 41 Rule 27 CPC that now the writ petition has been dismissed by the Hon'ble High Court and they are in a position to deliver the possession. However, counsel for the complainant argued that once the refund order has been passed by the District Forum, he goes for that and in case Ops have indulged in unfair trade practice that cannot be allowed to be perpetuated by this Commission. Since the order passed by the District Forum is in consonance with the stand taken by this Commission as well as the Hon'ble National Commission. There is no reason to differ with the earlier stand/judgment passed by this Commission or the Hon'ble National Commission, therefore, the complainant cannot be compelled to go for allotment of the plot, at this stage, in case the writ petition has been dismissed.
13. We are of the opinion that the order passed by the District Forum is justified. We do not see any infirmity in the order so passed by the District Forum, the same is hereby affirmed.
14. In view of the above, we do not see any merit in the appeal and the same is dismissed with no order as to costs.
15. The appellant had deposited an amount of Rs. 25,000/- and Rs. 16,00,000/- with this Commission in the appeal. These amounts with interest accrued thereon, if any, be remitted by the registry to respondent/complainant by way of a crossed cheque/demand draft after the expiry of 90 days, from the despatch of the order to the parties; subject to stay, if any, by the higher Fora/Court.
First Appeal No. 1647 of 2014 10
16. Remaining amount, if any due, shall be paid by appellant to respondent/complainant within 90 days from the despatch of the order to the parties.
17. The arguments in this appeal were heard on 23.5.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
June 01, 2016. (Harcharan Singh Guram)
as Member