State Consumer Disputes Redressal Commission
Puda vs Sharanjit Kaur on 23 November, 2011
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.1171 of 2006
Date of institution: 12.09.2006
Date of decision : 23.11.2011
PUDA through its Estate Officer, Ludhiana.
.....Appellants
Versus
Sharanjit Kaur w/o Shri Mohinder Partap Singh through General Attorney Sh.
Sukhwinder Singh s/o Sh.Pritam Singh r/o 114, Kidwai Nagar, Ludhiana.
.....Respondent
First Appeal against the order dated 09.05.2006
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Before:-
Hon'ble Mr.Justice S.N.Aggarwal, President
Mr.Baldev Singh Sekhon, Member
Present:-
For the appellants : Sh.B.S.Taunque, Advocate
For the respondent : Ex parte
JUSTICE S.N.AGGARWAL, PRESIDENT
VERSION OF THE RESPONDENT
The respondent was allotted MIG flat No.1451, 2nd floor, Sector 32A, Samrala Road, Ludhiana by the appellants vide allotment letter dated 30.3.1996. The respondent had deposited an amount of Rs.2,25,781/- against the price of this plot. She could not continue depositing the instalments due to illness of her husband Mohinder Partap Singh who remained admitted under the medical treatment Kala Nursing Home near Kochar Market, Ludhiana.
2. It was further pleaded that the respondent surrendered the flat along with necessary documents. These documents and the surrender letter were received by the appellants on 20.3.2003. The respondent also applied for the refund but the appellants failed to do so. Then, the respondent got served the legal notice on the appellants on 1.11.2003 but in vain. Hence, the complaint for refund of Rs.2,25,781/-. Compensation, costs and interest were also prayed. First Appeal No.1171 of 2006 2 VERSION OF THE APPELLANTS
3. The appellants filed the written reply. It was admitted that the MIG flat No.1451, 2nd Floor situated in Sector 32A, Samrala Road, Ludhiana was allotted by the appellants to the respondent vide allotment letter dated 30.3.1996. The respondent had deposited a sum of Rs.2,25,781/- as part payment but it was denied for want of knowledge if the husband of the respondent remained sick or if she failed to make the payment of instalments under the compulsion of circumstances.
4. It was, however, admitted that the respondent had surrendered the flat on 20.3.2003. The officials of the appellants went to the flat owner to see the damage caused to it by the respondent but it was found locked all the time. The refund of the amount was delayed for the reason as the respondent that the respondent was not available to allow the inspection of the flat to assess the damage caused to it.
5. It was further pleaded that the appellants called the report from the Divisional Engineer C-I, PUDA vide letter dated 7.4.2003 but no report was received. Again reminder was sent on 27.11.2003 and the report was received that the house was found locked. Thereafter, the letter dated 12.12.2003 was sent to the attorney of the respondent to contact the Divisional Engineer and fix a date for checking of the house in question. The Nodal Officer-cum-Divisional Engineer vide letter dated 30.12.2003 informed the appellants that the date of inspection was fixed as 15.1.2004. A copy of this letter was also sent by the Nodal Officer to the attorney of the respondent.
6. It was further pleaded that the Nodal Officer informed the appellants that the glass panes of the windows of the house were not in existence. One window was in broken condition, two doors of the house were in damaged condition. It was also reported that a sum of Rs.8800/- was required to be spent on repairs.
First Appeal No.1171 of 2006 3
7. It was not denied that the legal notice served by the respondent on 1.11.2003 was received. The information was given to the Divisional Engineer but since the report of the authorities was not received and the house remained had remained locked for a long time, therefore, the amount could not be refunded. It was denied if the refund of the amount was withheld unnecessarily but it was due to the fact that the report was not received from the Nodal Officer.
8. It was further pleaded that the amount received from the respondent was refunded after deducting 10% of the amount and also the cause of damage caused to the house. A cheque for Rs.1,32,305/- dated 2.8.2004 was tendered to the respondent in the District Forum. It was denied if there was any deficiency in service on the part of the appellants. Dismissal of the complaint was prayed. PROCEEDINGS BEFORE THE DISTRICT FORUM
9. Sukhwinder Singh attorney of the respondent filed his affidavit. The respondent also proved documents Ex.C1 to Ex.C9. On the other hand, the appellants filed the affidavit of T.R.Vyas, Estate Officer dated 20.10.2004. They also proved documents Ex.R1 to Ex.R3. The appellants also filed the photocopy of the affidavit of Sharanjit Kaur respondent as Ex.R4. The appellants also proved documents.
10. The learned District Forum partly accepted the complaint vide impugned order dated 0.5.2006. It was held that the appellants were entitled to deduct an amount of Rs.22,578/- towards 10% of the amount deposited. Since they have deducted an amount of Rs.84,676/-, therefore, the appellants were directed to refund the amount of Rs.69,098/-. They were also directed to refund the amount of Rs.8800/-. The appellants were also directed to pay interest @ 9% per annum on these amounts with effect from 10.8.2004 when the payment of Rs.1,32,305/- was paid by the appellants to the respondent.
11. Hence, this appeal.
First Appeal No.1171 of 2006 4DISCUSSION :
12. The submission of the learned counsel for the appellants was that they were entitled to deduct 10% of the total flat price under Section 45 (3) of the Punjab Regional Planning & Development Act, 1995 (in short "Act"). It was further submitted that the provisions of Section 45(5) have not been complied with by the respondent. Therefore, the appeal was not maintainable.
13. Record has been perused. Submissions have been considered.
14. Admittedly, the respondent was the allottee of MIG flat No.1451, Samrala Road, Ludhiana which was allotted to her by the appellants vide allotment letter dated 30.3.1996. The respondent had made the part payment of Rs.2,25,781/- and she had failed to pay the remaining amount. These facts have been admitted by the appellants.
15. It is also admitted by the appellants that the respondent had surrendered the plot on 20.3.2003 and she had applied for the refund of Rs.2,25,781/-. Admittedly, the appellants had made the refund of Rs.1,32,305/- vide cheque dated 2.8.2004 after deducting an amount of Rs.84,676/- and Rs.8800/-. The allottee had given the power of attorney dated 1.8.1996 (Ex.C1) to Sukhwinder Singh and the present complaint was also filed by the allottee through her attorney Sukhwinder Singh. The application dated 20.3.2003 for surrendering the plot has been proved by the respondent as Ex.C2.
16. The allotment letter dated 30.3.1996 has been proved by the respondent as Ex.C9. Clause 14 of the allotment letter reads as under : -
"14. In case of breach of any condition of allotment and the hire-purchase agreement or non-payment of any instalment Interest, penalties, watch and ward charges or any other amount due from you the house/flat/dwelling unit shall be resumed under section 45 of the Act and in that case an amount equal to ten percent of the total amount deposited by you including First Appeal No.1171 of 2006 5 other penalties as per policy of the Authority on that date shall be forfeited."
17. In order to prove that the flat had suffered the damage to the tune of Rs.8800/-, the appellants have proved the report of Manjit Singh, Junior Engineer, PUDA dated 25.2.2004 as Ex.R2. It is duly signed by Gurdev Singh, Sub Divisional Engineer (C-1). Admittedly, the flat was allotted by the appellants to the respondent vide allotment letter dated 30.3.1996. It remained in possession of the respondent till 30.3.2003 when it was surrendered by her. Therefore, it was found by the Junior Engineer that the glass panes of the windows were missing. One window was in broken condition and two doors were also in broken condition and the total loss was assessed for Rs.8800/-. Therefore, this amount has been rightly deducted out of the amount deposited by the respondent with the appellants.
18. So far as the deduction of Rs.84,676/- vide order dated 2.8.2004 (Ex.R3) is concerned, the appellants have deducted this amount under Section 45 of the Act. The total price of the plot was Rs.8,46,760/- and its 10% being Rs.84,676/- has been deducted by the appellants.
19. The learned counsel for the appellants has relied upon the judgment of this Commission dated 24.1.2006 passed in First Appeal No.1449 of 2005 (PUDA v. Shri Mukand Lal) in which deduction of 10% of the plot price was held justified.
20. However, such a proposition had also come up for consideration before this Commission in First Appeal No.264 of 2004 "Punjab Urban Planning and Development Authority v. Vanita Gupta" decided on 25.2.2010 in which it was held as under:-
"14. Section 45(3) of the Act ibid reads as under : -
(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 First Appeal No.1171 of 2006 6 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 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 percent 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."
15. If this provisions had become applicable as per condition No.3 of the allotment letter dated 20.10.2001 Ex.C6, it means, therefore, that the appellants were authorised to issue notice to the respondent in writing calling upon the respondent to show cause as to why an order of forfeiture of the whole or any part of the money, if any, paid in respect thereof (which in no case shall exceed 10% of the total amount of the consideration money, interest and other dues payable in respect of the transfer of the land or both) should not be made.
16. This Section authorised the appellants to issue the show cause notice. This Section did not authorise the appellants to straightaway deduct the amount to the extent of 10% of the total plot price.
17. No such opportunity was granted by the appellants to the respondent as no such notice has been First Appeal No.1171 of 2006 7 served by them on the respondent. Therefore, even if the provision of Section 45 (3) of the Act were applicable in this case, that provision has not been applied in the letter and spirit by the appellants to the facts of this case. Rather by depriving the respondent of his/her right to be heard, they have imposed penalty. It is not the spirit of law. Therefore, the appellants did not have the right to deduct 10% of the amount paid straightaway and it cannot be sustained in law."
21. Therefore, the deduction of 10% of the plot price of Rs.8,46,760/- was not justified. Since the respondent has not filed any appeal against the impugned judgment dated 9.5.2006 passed by the learned District Forum, therefore, the deduction of Rs.22,578/- is upheld.
22. The submission of the learned counsel for the appellants was that the learned District Forum has awarded interest @ 9% per annum from 10.8.2004. The rate of interest awarded by the learned District Forum was on the higher side.
23. This submission has been considered.
24. Interest @ 9% per annum is on the higher side. Therefore, the rate of interest is reduced to 6% per annum.
25. In view of the discussions held above, this appeal is partly accepted and the refund of the amount of Rs.8800/- is set aside. The rate of interest is reduced from 9% to 6% per annum.
26. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 12.9.2006. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent towards the refund of Rs.62,098/- by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
First Appeal No.1171 of 2006 8
27. The interest on the amount of Rs.25,000/- shall stop running with effect from the date the appellants had deposited the same in this Commission. Interest on this amount of Rs.25,000/- shall be what has accrued on this amount when it remained deposited by this Commission in the Bank.
28. The arguments in this appeal were heard on 17.11.2011 and the order was reserved. Now the order be communicated to the parties.
29. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(JUSTICE S.N.AGGARWAL)
PRESIDENT
(BALDEV SINGH SEKHON)
MEMBER
November 23, 2011.
Paritosh