State Consumer Disputes Redressal Commission
Ajit Pal Singh vs Greater Mohali Area Development ... on 6 December, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.325 of 2017
Date of institution : 04.05.2017
Reserved on : 21.11.2017
Date of decision : 06.12.2017
AJIT PAL SINGH SON OF SHRI CHARANJIT SINGH, RESIDENT
OF HOUSE NO.3338, SECTOR 71, MOHALI.
.......COMPLAINANT
Versus
1. THE GREATER MOHALI DEVELOPMENT AUTHORITY,
PUDA BHAWAN, SECTOR 62, S.A.S. NAGAR, MOHALI
THROUGH THE ESTATE OFFICER.
2. THE ESTATE OFFICER, THE GREATER MOHALI
DEVELOPMENT AUTHORITY, PUDA BHAWAN, SECTOR
62, SAS NAGAR, MOHALI.
........OPPOSITE PARTIES
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the complainant : Shri Varun Bhardwaj, Advocate. For the opposite parties : Shri Anuj Kohli, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainant, Ajit Pal Singh, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "C.P. Act") for the issuance of following directions to the opposite parties:-
a) to pay interest of ₹7,58,018/- @ 18% on the amount of ₹58,67,300/- from the respective dates of deposit till realization i.e. with effect from March 2012 to May 2014;
b) to return the amount of ₹2,46,383/-, wrongly deducted; Consumer Complaint No.325 of 2017 2
c) to pay interest of ₹1,55,627/- @ 18% on the amount of ₹49,30,917/- from 27.11.2014 to 30.01.2015;
d) to pay interest of ₹66,357/- @ 18% per annum paid by the complainant for availing loan from the H.D.F.C. Bank;
e) to pay a sum of ₹5,00,000/- with regard to mental torture, mental agony and harassment suffered by the complainant;
and
f) to pay a sum of ₹50,000/- as litigation charges. Facts of the Complaint:
2. Brief facts, as averred in the complaint, are that the complainant applied for allotment of a Flat, vide Application No.35414 in Purab Premium Apartments Scheme at Sector 88, SAS Nagar for a total cost of ₹69,00,000/- and the allotment was to be made by way of draw of lots. For that purpose the complainant took a loan from the Oriental Bank of Commerce, Mohali and paid the sum of ₹6,90,000/- to the opposite parties along with the application. The complainant was successful allottee in the draw of lots held on 20th of March 2012 and was allotted Apartment Type-III in Category-A, vide draw serial No.1048. Thereafter opposite parties issued Letter of Intent (LOI) in favour of the complainant on 22.5.2012, vide letter No.GMADA-EO/2012/2225 mentioning various terms and conditions. It was specifically mentioned in the Letter of Intent that possession of the Apartment would be handed over after completion of development works of site in a period of 36 months from the date of issuance of Letter of Intent and in case, for any reason, the opposite parties were unable to deliver the possession, Consumer Complaint No.325 of 2017 3 the allottee would have the right to withdraw from the Scheme and the opposite parties would refund the entire amount deposited by the complainant along with 8% interest compounded annually. The opposite parties issued letter vide Memo No.GMADA-
EO/2012/25642 dated 18.6.2012 in favour of the complainant and granted permission to mortgage the said apartment. The complainant continued to deposit the amounts and also deposited a sum of ₹13,80,000/- on 21.6.2012 and completed the initial payment of 30% as required. The complainant also took loan of another sum of ₹4,55,000/- from the H.D.F.C. Bank for paying the instalment against the said Apartment and thereafter he regularly paid the instalments to the H.D.F.C. Bank Ltd. along with interest on the loan amount. Thereafter, the complainant has deposited the following amounts:-
Sr. No. Amount in (Rs.) Dated
1. 10,16,600.00 20.11.2012
2. 9,71,750.00 20.05.2013
3. 9,26,900.00 22.11.2013
4. 8,82,050.00 21.05.2014
Total:- 37,97,300.00
In all, the complainant deposited a sum of ₹58,67,300/- with effect from March 2012 to May 2014 with the opposite parties. However, due to some financial difficulties the complainant was unable to deposit the fifth instalment and he accordingly wrote a letter dated Consumer Complaint No.325 of 2017 4 27.11.2014 to the opposite parties requesting them to cancel his allotment and refund the amount deposited by him. After the receipt of the said letter dated 27.11.2014, the opposite parties passed an order dated 8.1.2015 directing the cancellation of Letter of Intent issued in favour of the complainant and deducting 10% of the total consideration amount of the Flat. However, subsequently vide order dated 30.1.2015 a corrigendum was issued by the opposite parties ordering deduction of 10% of the total amount of the consideration money, interest and other dues payable to the GMADA and deducted an amount of ₹9,36,383/- instead of deducting a sum of ₹6,90,000/-. It is averred that the complainant was orally informed that the amount of ₹2,46,383/- was deducted from the amount deposited by the complainant as the service tax. Ultimately the complainant received cheque bearing No.107895 dated 4.2.2015 worth ₹49,30,917/- allegedly on the basis of order dated 30.1.2015. In this manner the complainant has alleged that excess amount of ₹2,46,383/- was deducted and the same is liable to be refunded. The opposite parties were entitled to deduct only ₹6,90,000/-; being 10% of the total sale consideration of the flat in question. The opposite parties were not entitled to other deductions and the service tax is also required to be refunded. Alleging deficiency in service and adoption of unfair trade practice on the part of the opposite parties the present complaint has been filed by the complainant for issuance of aforementioned directions to them. Defence of the Opposite Parties:
Consumer Complaint No.325 of 2017 5
3. The opposite parties appeared and filed their written statement contending that there is no deficiency in service or adoption of unfair trade practice on the part of the opposite parties. The opposite parties have deducted the amount as per the terms and conditions of the Letter of Intent, which were accepted by the complainant and as per the provisions of Section 45(3) of the Punjab Regional and Town Planning and Development Act, 1995 (in short, "Act of 1995"). The complainant has wrongly filed this complaint, which is not maintainable. The complainant could have challenged the order passed by the opposite parties provided under the said Act.
Otherwise also as per clause 6 of the Letter of Intent dated 22.5.2012, all disputes and/or differences, which may arise in any manner touching or concerning this allotment shall be referred to the Sole Arbitrator i.e. Chief Administrator, GMADA or any person appointed/nominated by him as Arbitrator and his decision will be final and binding on the parties under the provisions of Arbitration and Conciliation Act, 1996. The complaint involves disputed and complicated questions of fact and law and the same cannot be adjudicated in a summary manner by this Commission. The complainant has not approached this Commission with clean hands and he had applied for allotment of the apartment in question only for speculative purpose and for resale. As such, he is not a 'consumer' qua the opposite parties as defined under the C.P. Act. Various paras of the complaint have been denied for want of knowledge. However, the amount deposited by the complainant on various dates has been admitted. It has also been admitted that after deducting Consumer Complaint No.325 of 2017 6 the amount of ₹9,36,383/- along with service tax out of the total amount of ₹58,67,300/-, the balance amount of ₹49,30,917/- was refunded to the complainant, vide cheque No.107895 dated 4.2.2015, which is in accordance with Rules. It is further contended that once the complainant himself is asking for the refund, then as per the provisions of the said Act of 1995 , he is not entitled to any interest and the amount can only be refunded after applying the forfeiture clause. Denying any deficiency in service or adoption of unfair trade practice a prayer for dismissal of the complaint was made.
Evidence of the Parties:
4. In order to prove his case, the complainant tendered in evidence his affidavit as Ex.CA and documents Ex.C-1 to Ex.C-17.
On the other hand, the opposite parties tendered in evidence the affidavit of their Estate Officer (Housing) Mahesh Bansal as Ex.OPA and documents Ex.OP-1 to Ex.OP-3.
5. We have carefully gone through the averments of the parties and the evidence produced by them in respect of those averments. We have also heard learned counsel for both the sides. Contentions of the Parties:
6. Learned counsel for the complainant argued on the similar lines as mentioned in the complaint. The sum and substance of the arguments of the learned counsel for the complainant is that the total sale consideration of the plot was ₹69,00,000/-, out of which the complainant has paid ₹58,67,300/- and due to peculiar circumstances he was not in a position to deposit the 5th Instalment Consumer Complaint No.325 of 2017 7 and for that reason he had made an application for refund of the amount deposited by him. In pursuance of his application an order dated 8.1.2015 was passed by the Estate Officer, GMADA-opposite party No.2 directing refund of the amount deposited after deducting 10% of the total sale consideration of the plot. It was further argued that vide corrigendum dated 30.1.2015 the amount has been ordered to be deducted as 10% of the total amount of the consideration money, interest and other dues payable under Section 45(3) of the Act of 1995. Resultantly an amount of ₹9,36,383/- was deducted instead of ₹6,90,000/-. The directions issued, vide letter dated 30.1.2015 Ex.C-12 are against the law and evidence on record. There is no provision for review of the order passed by the Estate Officer, GMADA, Mohali i.e. opposite party No.2 and if the GMADA authorities were aggrieved against the order passed by opposite party No.2, they could have filed an appeal before the competent authority under the Act of 1995. Hence the deductions have been wrongly made and the complainant is entitled to the refund of the same along with interest.
7. Per contra, it was vehemently argued by the learned counsel for the opposite parties that as per provisions of Section 45(3) of the Act of 1995 the opposite parties are entitled to forfeiture of 10% of the total sale consideration of the plot, interest, penalty and other dues and not 10% of the total sale consideration of the plot. He relied upon judgment of Hon'ble Division Bench of the Punjab and Haryana High Court, Chandigarh in CWP No.16153 of 2014 (Rajiv Arora v. State of Punjab and others) decided on 21.7.2015. Consumer Complaint No.325 of 2017 8 Therefore, the deductions have rightly been made vide order dated 30.1.2015 as per the statutory provisions of the Act of 1995. There is no merit in the present complaint and the same is liable to be dismissed with costs.
Consideration of Contentions:
8. We have given our thoughtful consideration to the contentions raised before us by the learned counsel for both the sides.
9. Before we deal with the contentions raised by learned counsel for both the parties, it would be appropriate to reproduce Section 45 of the Act of 1995, which reads as under:-
"45. (1) Where any transferee makes default in the payment of any consideration money, or any instalment, on account of the transfer of any land or building, or both, under section 43, the Estate Officer may, by notice in writing, call upon the transferee to show cause, within a period of thirty days, why a penalty as may be determined by the Authority be not imposed upon him :
Provided that the penalty so imposed shall not exceed the amount due from the transferee.
(2) After considering the cause, if any, shown by the transferee and after giving him a reasonable opportunity of being heard in the matter, the Estate Officer may, for reasons to be recorded, in writing, make an order imposing the penalty and direct that the amount of money due along with the penalty shall be paid by the transferee within such period as may be specified in the order.Consumer Complaint No.325 of 2017 9
(3) If the transferee fails to pay the amount due together with the penalty in accordance with the order made under sub-
section (2) or commits a breach or any other condition of transfer, the Estate Officer may, by notice in writing call upon the transferee to show cause within a period of thirty days, why an order of resumption of the land or building or both, as the case may be, and forfeiture of the whole or any part of the money, if any, paid in respect thereof which in no case shall exceed ten per cent of the total amount of the consideration money, interest and other dues payable in respect of the transfer of the land or building or both, should not be made.
Provided that in genuine cases of hardship of a class of person(s), the authority may, by general or specific order, reduce the amount of forfeiture for any person(s) for the reasons to be recorded in writing.
(4) After considering the cause if any, shown by the transferee in pursuance of a notice under sub-section (3), and any evidence that he may produce in respect of the same and after giving him a reasonable opportunity of being heard in the matter, the Estate Officer may, for reasons to be recorded, in writing, make an order resuming the land or building or both, as the case may be, and direct the forfeiture as provided in subsection (3) of the whole or any part of the money paid in respect of such transfer.
(5) Any person aggrieved by an order of the Estate Officer under section 44 or under this section may, within a period of Consumer Complaint No.325 of 2017 10 thirty days of the date of the communication to him of such order, prefer an appeal to the Chief Administrator in such form and manner, as may be prescribed :
Provided that the Chief Administrator may entertain the appeal after the expiry of the said period of thirty days, if he is satisfied that the appellant was prevented by sufficient cause from filing the appeal in time :
(6) The Chief Administrator may, after hearing the appeal, confirm, vary or reverse the order appealed from and may pass such order as he thinks fit.
(7) The Chief Administrator may either on his own motion or on an application received in this behalf at any time within a period of six months from the date of the order, call for the record of any proceedings in which the Estate Officer has passed an order for the purpose of satisfying himself as to the legality or propriety of such order and may pass such order in relation thereto as he thinks fit:
Provided that the Chief Administrator shall not pass an order under this section prejudicial to any person without giving him a reasonable opportunity of being heard.
(8) Where a person is aggrieved by any order of the Chief Administrator, deciding the case under sub-section (6) or sub-
section (7), he may, within thirty days of the date of communication to him of such order, make an application in writing to the State Government for revision against the said Consumer Complaint No.325 of 2017 11 order and the State Government may confirm, alter or rescind the order of the Chief Administrator."
A perusal of Section 45(1) reveals that where the transferee makes a default in payment of consideration money or any instalment, then the penalty can be imposed by the competent authority and may permit to pay the amount within a period of 30 days. This provision is not relevant in this case. Similarly is the provision of Section 45(2), which says that after giving a reasonable opportunity in writing the Estate Officer can impose penalty and direct the transferee to pay in a particular/specified period. Only provision relevant is Section 45(3) of the Act of 1995. A perusal of Sub-Section (3) of Section 45 of the Act of 1995 reveals that if transferee fails to pay the amount due together with the penalty in accordance with the order made under sub-Section (2) of this Section or commits a breach of any other condition of transfer, the Estate Officer may, by notice in writing call upon the transferee to show cause within a period of thirty days, why an order of resumption of land or building or both, as the case may be, and forfeiture of the whole or any part of the money, if any, paid in respect thereof which shall be equivalent to ten per cent of the total amount of the consideration money, interest and other dues payable in respect of transfer of the land or building or both should not be made. There is a proviso to this Sub-Section also in which it is provided that in genuine cases of hardship of a class of person(s) the authority may by general or specific order, reduce the amount of forfeiture for any person (s) for the reasons to be recorded in writing. After considering all the above Consumer Complaint No.325 of 2017 12 mentioned provisions the Estate Officer of the GMADA i.e. opposite party No.2 can pass the orders for forfeiture and if any person is aggrieved by the order so passed by the Estate Officer, then under Sub-Section (5) of Section 45 of the Act of 1995 he can prefer an appeal before the Chief Administrator and under Sub-Section (8) of Section 45 revisional power vests in the State Government against the order passed by the Chief Administrator.
10. The admitted facts are that the Estate Officer of GMADA i.e. opposite party No.2 passed an order dated 8.1.2015 whereby he ordered forfeiture to the extent of 10% of the total consideration amount for the flat. Since the total sale consideration of the flat was ₹69,00,000/-, therefore, a sum of ₹6,90,000/- was ordered to be forfeited; being 10% of the total sale consideration. This order dated 8.1.2015 had become final. However, by passing the subsequent order dated 30.1.2015 opposite party No.2 amended/reviewed his earlier order dated 8.1.2015 and ordered forfeiture of 10% share of the total amount of the consideration money, interest and other dues payable in favour of GMADA in view of Section 45(3) of the Punjab Regional Town Planning and Development Act, 1995. Now the issue arises, whether the Estate Officer i.e. opposite party No.2 could have amended/reviewed the order dated 8.1.2015 by passing subsequent order dated 30.1.2015?
11. Learned counsel for the opposite parties failed to point out any provision that the Estate Officer i.e. opposite party No.2 can amend or review his own order. If at all the opposite parties are aggrieved against the order passed by opposite party No.2, they could prefer Consumer Complaint No.325 of 2017 13 an appeal under Section 45(5) of the Act of 1995 read with Sub- Section (6) of Section 45 of the said Act. In this manner the subsequent order dated 30.1.2015 has been passed by opposite party No.2 without jurisdiction and that too without providing any opportunity of hearing to the complainant. Moreover, in the case in hand, the complainant himself approached the opposite parties that due to peculiar circumstances he was not in a position to pay the 5th instalment and therefore, he had written to them to cancel the allotment of the plot and refund the amount. In such circumstances, we are of the view that the Estate Officer may have considered this aspect as there was no default on the part of the complainant and has ordered deduction of only 10% of the sale consideration of the plot, vide order dated 8.1.2015. However, the question of amendment/review by him was not at all permissible under law. Hence it has no effect on the order dated 8.1.2015; being null and void and having been passed without any authority as provided under the Act of 1995.
13. So far as the judgment of Hon'ble Punjab and Haryana High Court in Rajiv Arora's case (supra) is concerned, the same is not applicable to the facts of the present case as that was a case of default of making payment. However, in the present case the complainant himself showed his inability to pay further instalments due to financial problems, which shows his bona fides. Accordingly we are of the view that the opposite parties are entitled to forfeiture of ₹6,90,000/- only as ordered by opposite party No.2, vide order Consumer Complaint No.325 of 2017 14 dated 8.1.2015 and the subsequent order dated 30.1.2015 passed by opposite party No.2 is set aside.
14. So far as the payment of interest for the period the amount paid by the complainant remained deposited with the opposite parties is concerned, there is no such provision for payment of the same. Moreover, the same was deposited by the complainant for purchasing the plot and he has at his own volition withdrawn from the same.
14. In view of our above discussion this complaint is partly allowed and the following directions are issued to the opposite parties:-
i) to pay ₹2,46,383/- wrongly deducted by the opposite parties to the complainant; and
ii) to pay ₹50,000/- as consolidated amount on account of compensation for mental torture, mental agony and harassment including litigation costs.
15. The compliance of this order shall be made by the opposite parties within a period of two months from the date of receipt of certified copy of this order failing which they shall be liable to pay interest at the rate of 9% per annum on the amount of ₹2,46,383/- from the date of passing of this order till the date of actual payment.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER December 06, 2017 Bansal Consumer Complaint No.325 of 2017 15