State Consumer Disputes Redressal Commission
Parminderjit Singh vs Improvement Trust, Barnala on 20 November, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.62 of 2013
Date of Institution: 21.01.2013.
Date of Decision : 20.11.2015.
Parminderjeet Singh S/o Harbant Singh S/o Jagis Singh R/o Village
Sukhna Ablu, Distt. Mukatsar Sahib, Punjab.
.....Appellant/complainant
Versus
Improvement Trust Bathinda, through its Chairman/Administrator/
Executive Officer, Bathinda, Punjab.
.....Respondent/opposite party
First appeal against order dated
31.10.2012 passed by the District
Consumer Disputes Redressal
Forum, Bathinda.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : Sh. Karan Nehra, Advocate
For the respondent : Sh. R.S. Modi, Advocate
..................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant of this appeal (the complainant in the complaint) has filed this appeal against the respondent herein (the opposite party in the complaint [in short the 'OP']), assailing order dated 31.10.2012 of District Consumer Disputes Redressal Forum Bathinda (in short, "the District Forum"), dismissing the complaint of the complainant.
2. Complainant Parminderjeet Singh has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, First Appeal No.62 of 2013 2 "the Act") against the OP on the pleaded facts that OP floated a scheme 49.5 acre at Bibi Wala Road and advertised it in newspapers claiming that colony would be appropriately developed with parks, wide roads, footpaths and hygienic drinking water and so on. The complainant wanted to purchase the plot of 239 square yards @ Rs.10,000/- per square yard from OP for total price of Rs.23,90,000/- and complainant got plot no.12 and got intimation letter no.2230 on 23.10.2007 from OP. This plot was given by OP to complainant on payment of installments and complainant deposited 25% amount of Rs.5,97,500/- and Rs.95,600/- as 4% cess to the OP on 03.08.2007. The OP promised the plot holders that development like street, roads, sewerage, water pipes, etc. would be carried quickly within one month or two month, but to no effect. The complainant remained unable to construct the plot, as there were no roads reaching to the plot nor any vehicle could go upto the plot as there were deep trenching, sand dunes and there was no possibility of development whatsoever even after five year thereon. Many letters were written by the complainant in this regard to OP but to no effect. The complainant wrote letter on 03.09.2010 to OP under Right to Information Act for getting information regarding development, but OP intentionally detained this letter. It was further averred that complainant is not bound to make the installments without getting the amenities of life, as committed by OP. The OP had not provided the basic amenities in the above said plot and threatened the complainant by sending letters to resume the plot. First Appeal No.62 of 2013 3 The OP issued letter no.564 dated 16.03.2012 to complainant regarding resumption of the plot allotted to him. The alleged letters mentioned in letter no.564 were in fact never issued to the complainant. The complainant has, thus, prayed that OP be directed to withdraw the letter no.564 of resumption of plot and to provide basic amenities like roads, streets, water pipes, etc. and to pay 20% interest on Rs.7 lakhs from 03.08.2007 till date which has been deposited with the OP as 25% amount of total cost of plot and to pay Rs.5 lakhs as compensation for mental harassment to complainant and to pay Rs.5 lakhs as difference of cost of construction on account of delay in the alleged development.
3. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant strongly. It was averred in legal objections by OP that complaint is not maintainable in the present Forum. Any deficiency in service on the part of OP was stoutly denied. The complainant is alleged to be not the consumer of OP. The complainant is alleged to be estopped by his own act and conduct from filing the complaint. On merits, OP also contested the complaint of the complainant. It was averred by OP that it is not aware that complainant participated in the auction held on 03.08.2007 to purchase the plot for shifting his resident to a city like Bathinda or further to sell the same subsequently. It was admitted that development scheme known as 49.5 acre regarding land located near Bibi Wala Road framed by the Improvement Trust Bathinda and advertisements for the sale of different residential/ First Appeal No.62 of 2013 4 commercial plots were given in the newspapers. Open auction of residential and commercial property was held on 03.08.2007 in the office of OP after giving due publicity. The complainant took part in auction by giving his bids alongwith other bidders. The bid of the complainant being highest @ Rs.10,000/- per square yard with regard to 239 square yards of land forming part of 49.5 acre scheme was accepted and total cost of plot was worked out to Rs.23,90,000/- The plot was allotted to the complainant by giving his bid on 03.08.2007, which was accepted by OP being the highest one. It was further averred by OP that at the time of fall of the hammer, the complainant deposited Rs.5,97,500/- being 1/4 of the total amount of Rs.23,90,000/- and complainant was required to deposit the remaining 3/4 of the amount in six monthly installments alongwith 12% interest, as mentioned in letter dated 23.10.2007. It was denied that OP promised the plot holders for development of streets, roads, sewerage, water pipes, etc. within a month or two month. The sewerage, water and street light facilities have already been provided after laying stone and making the same water bound and the same is in existence. It was further asserted that letter no.672 dated 30.03.2010, letter no.1804 dated 11.08.2010, letter no.2231 dated 24.09.2010 and letter no.2075 dated 29.08.2011 were sent by the OP to complainant for depositing of the outstanding amount. These letters were asserted to be genuine and authentic. The complainant deposited Rs.7 lakhs only, out of which Rs.5,04,600/- being 1/4 of the bid amount was deposited on 03.08.2007 and First Appeal No.62 of 2013 5 thereafter no other installment has been deposited by the complainant with the OP. The complainant has not paid the installments as per the schedule and hence the plot of the complainant was resumed for non-payment of installments. The OP controverted the other averments of the complainant made in the complaint and prayed for the dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.C-1 alongwith documents Ex.C-2 to C-38 and closed the evidence. As against it, OP tendered in evidence the documents Ex.R-1 to R-29 and affidavits Ex.R-30 to R-32 and documents Ex.R-33 to R-39 and closed the evidence. On conclusion of evidence and arguments, the District Forum dismissed the complaint of the complainant by virtue of order dated 31.10.2012. Aggrieved by the order of the District Forum, the complainant now appellant carried this appeal against the same.
5. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. Evidence is required to be examined by us on the record to determine the controversy in this case. The complainant tendered his affidavit Ex.C-1 on the record in support of his case. Ex.C-2 is the copy of application under RTI moved by the complainant to Public Information Officer-cum-Chairman/Executive Officer, Improvement Trust Bathinda. Ex.C-3 is the copy of postal receipt. Ex.C-4 is the copy of reply sent by complainant to OP. Ex.C-5 is the copy of letter no.564 of 16.03.2012 from OP to complainant regarding resumption First Appeal No.62 of 2013 6 of plot no.12. Ex.C-6 is copy of information given by OP under RTI to the complainant. Ex.C-7 is the copy of Agreement of Sale dated 31.10.2007. Ex.C-8 is the additional affidavit of complainant. Ex.C-9 is the copy of letter dated 02.02.2009 from OP to M/s S.M. Builders and Developers regarding construction/renovation of roads in 49.5 Acre (Patel Nagar) Development Scheme. The advertisement published in newspaper inviting tender notice is Ex.C-10. Ex.C-11 to C-14 are the letters from Executive Engineer to Sh. Ghansham Dass Gupta Govt. Contractor Bathinda regarding providing W/S scheme in 49.5 Acre Improvement Trust Bathinda. Ex.C-15 is allotment letter no.2230 dated 23.10.2007 sent to complainant by the OP. It is set out in it that total price of plot no.12 is Rs.23,90,000/- and 1/4 amount is Rs.5,97,500/- and Rs.95,600/- is 4% cess, which were deposited vide receipt no.278/58 dated 03.08.2007 by the complainant and the schedule of payment is reproduced as under:
Installment Due Date Installment Interest Total No. in Rupees Amount
1. 23.04.2008 3,58,500/- 1,07,550/- 4,66,050/-
2. 23.10.2008 3,58,500/- 86,040/- 4,44,540/-
3. 23.04.2009 3,58,500/- 64,530/- 4,23,030
4. 23.10.2009 3,58,500/- 43,020/- 4,01,520/-
5. 23.04.2010 3,58,500/- 21,510/- 3,80,010/-
Ex.C-16 is the copy of letter no.1804 dated 11.08.2010 addressed to complainant regarding depositing of due installments. Ex.C-17 to C-34 are the photographs. Ex.C-35 is the receipt of payment of Rs.1000/- issued by photographer. Ex.C-36 is the copy of judgment of District Forum Bathinda in case "Jagdev Singh Vs. Omaxe Build First Appeal No.62 of 2013 7 Home Pvt.Ltd", which is not of any relevant in this case, because it is not between the parties. Copy of letter sent to Executive Officer of OP by the complainant is Ex.C-37 for executing the agreement of sale. Ex.C-38 is copy of another letter from complainant to OP regarding demanding delivery of possession. Ex.C-39 are the copies of noting of the office of OP.
6. In rebuttal of above evidence, the OP tendered in evidence Ex.R-1, the copy of estimate of original work. Ex.R-2 is the copy of advertisement published in the newspaper regarding above said scheme. Ex.R-3 is the copy of letter dated 02.03.2009 regarding providing and laying street light in 49.5 Acre Development scheme issued by OP to Bhushan Thakural. Ex.R-4 is the copy of detailed completion report and completion certificate. Ex.R-5 to R-10 are the photographs of the houses, sewer and electricity pole. Ex.R-11 is the copy of receipt of Rs.180/- issued by photographer. Ex.R-12 is copy of letter from Executive Engineer to Assistant Trust Engineer regarding laying the sewer and water pipes at scheme 49.5 acre. Ex.R-13 is the copy of Measurement Book. Ex.R-14 to R-17 are the copies of tender invitation. Similarly, we have also examined the documents Ex.R-18 to R-21 are the copies of letters from OP to Ghansham Dass Gupta Govt. Contractor regarding providing sewerage Scheme in 49.50 Acre. Ex.R-22 to R-25 are the copies of agreement of 2009-10. Ex.R-26 to R-29 are the copies of final bill issued by Ghansham Dass Contractor. Ex.R-30 is the affidavit of Parul Goyal, SDO Sewerage Board. Ex.R-31 is the affidavit of First Appeal No.62 of 2013 8 Mukhtiar Singh, Assistant Trust Engineer of OP. This witness stated in his affidavit that the street lights were operative in the area of above scheme. Earth filling has been laid and preparation of surface was done and stone was also laid in some area and made up to water bound. On account of laying of sewerage/water supply lines by the Sewerage Board started digging the same at certain places, hence premix could not be laid in certain streets at the time. He further stated that inhabitants drive their vehicles on the roads. Affidavit Gagandeep Singh is Ex.R-32 regarding the false complaint filed by the complainant. The other documents of OP Ex.R-33 to R-38 have also been considered by us.
7. From evaluation of above referred evidence on the record and hearing the respective submissions of counsel for the parties, we find that the complainant was bound to pay installments to the OP, as per the Agreement of Sale Ex.C-7. The allotment letter no.2230 dated 23.10.2007 is Ex.C-15 and detail of schedule of payments has been recorded in it. Reference may further be made to Ex.C-16 in this regard. The Agreement of Sale dated 31.10.2007 between the parties is Ex.C-7 on the record and as per Clause 1, the Mode of Payment of the agreement, if the purchaser fails to make payment of money due from him to the Trust on due date as intimated, he shall be liable to pay penal interest of one percent per annum in the first month, two percent per annum in the second month, three percent per annum in third month, four percent in the fourth month, five percent per annum in the fifth month and six First Appeal No.62 of 2013 9 percent per annum in the sixth amount on due amount in addition to the normal interest of 12 percent per annum. If the default continues for a period exceeding six months, the plot would be liable to be resumed. We find that complainant paid 1/4 amount of the total price of the plot and subsequent installments have not been paid by the complainant. The counsel for the complainant could not point any evidence on the record to our notice or any admission made by the OP that these amounts were ever paid. Even, as per Agreement of Sale, the penal interest could be made upto the period of six months only and thereafter the plot is liable to be resumed after expiry of period of six months. Even, as per this Clause of the Agreement of Sale, the penal interest could be levied upto 6 months period only on default of the purchaser. We find in this case that complainant has not paid any installments thereafter and continued defaulting for the period of six months. The OP is, thus, justified in resuming the plot on account of default in making the payment of installments by the complainant to OP. After all the development of the Scheme has to be carried on the basis of receipt of installment amounts by OP from the various purchasers and otherwise it was not possible at all. Even, as per allotment letter Ex.C-15, the plot is liable to be resumed, if the default continued in making the payment of installments by the purchaser for more than six months. The plot of the complainant has, thus, rightly been resumed by the OP. The counsel for the complainant, now appellant referred the typed copy of one judgment of Punjab and Haryana High court titled as "S.C. First Appeal No.62 of 2013 10 Gupta and another vs. State of Haryana and others" in CWP no.989 of 2012, decided on 29.04.2013. This authority is on different facts. We find that there is violation of Clause 6 of allotment letter Ex.C-15 as well as Clause 1 of Agreement of Sale on the part of complainant, which rightly justified the OP to resume the plot. The order of the District Forum cannot be said to be faulty in any manner in this appeal by this Commission. The order of the District Forum under challenge in this appeal is, thus, affirmed.
8. As a result of our above discussions, we find no merit in the appeal and the same is hereby dismissed.
9. Arguments in this appeal were heard on 18.11.2015 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER November 20, 2015 (MM)