State Consumer Disputes Redressal Commission
Puda vs Gurmeet Singh on 1 June, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.986 of 2016
Date of Institution: 23.12.2016
Order reserved on:26.05.2017
Date of Decision : 01.06.2017
1. Punjab Urban Planning and Development Authority, PUDA
Complex, Bhagu Road, Bathinda.
2. The Chairman, PUDA Bathinda.
3. The Estate Officer, Punjab Urban Planning and Development
Authority, PUDA Bathinda.
.....Appellants/opposite parties
Versus
Gurmeet Singh S/o Harbhajan Singh, aged 38 years, R/o Old Cantt.
Road, Near Tara Palace, Main Road, Faridkot.
.....Respondent/complainant
First Appeal against order dated
30.08.2016 passed by the District
Consumer Disputes Redressal Forum,
Faridkot.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. Balwinder Singh, Advocate For the respondent : Sh. A.S. Kakkar, Advocate .................................................2) First Appeal No.987 of 2016
Date of Institution: 23.12.2016 Order reserved on:26.05.2017 Date of Decision : 01.06.2017
1. Punjab Urban Planning and Development Authority, PUDA Complex, Bhagu Road, Bathinda.
2. The Chairman, PUDA Bathinda.
3. The Estate Officer, Punjab Urban Planning and Development Authority, PUDA Bathinda.
.....Appellants/opposite parties Versus First Appeal No.986 of 2016 2 Vishal Kumar S/o Raghbir Singh, R/o Guru Arjan Dev Nagar, Faridkot, Tehsil and District Faridkot.
.....Respondent/complainant First Appeal against order dated 30.08.2016 passed by the District Consumer Disputes Redressal Forum, Faridkot.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. Balwinder Singh, Advocate For the respondent : Sh. A.S. Kakkar, Advocate .................................................
AND 3) First Appeal No.988 of 2016 Date of Institution: 23.12.2016 Order reserved on:26.05.2017 Date of Decision : 01.06.2017
1. Punjab Urban Planning and Development Authority, PUDA Complex, Bhagu Road, Bathinda.
2. The Chairman, PUDA Bathinda.
3. The Estate Officer, Punjab Urban Planning and Development Authority, PUDA Bathinda.
.....Appellants/opposite parties Versus Vishavdeep S/o Raghbir Singh, R/o Guru Arjan Dev Nagar, Faridkot, Tehsil and District Faridkot.
.....Respondent/complainant First Appeal against order dated 30.08.2016 passed by the District Consumer Disputes Redressal Forum, Faridkot.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member Smt. Surinder Pal Kaur, Member Present:-
For the appellants : Sh. Balwinder Singh, Advocate For the respondent : Sh. A.S. Kakkar, Advocate ................................................ First Appeal No.986 of 2016 3 J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Common question of controversy of facts and law are involved in the above referred three appeals, hence they are being disposed of together by means of this common order, which shall be pronounced by us in main first appeal no.986 of 2016 titled as "Estate Officer, PUDA & others Vs. Gurmeet Singh", which has been filed by appellants against order dated 30.08.2016 of the District Consumer Disputes Redressal Forum, Faridkot (in short the 'District Forum') passed in complaint no.114 of 2016, vide which, the complaint of the complainant was allowed by directing OPs to refund the amount of Rs.7,29,000/-, the amount deposited by the complainant with them, alongwith interest @12% per annum from the date of its payment till its final realization; further to pay Rs.20,000/- as compensation for mental harassment and Rs.5000/- as litigation expenses. The appellants of this appeal are opposite parties in the original complaint before the District Forum and respondent of this appeal is complainant therein and they be referred as such hereinafter for the sake of convenience.
2. The appellants of first appeal no.987 of 2016 have directed this appeal against order dated 30.08.2016 of District Consumer Disputes Redressal Forum Faridkot passed in complaint no.115 of 2016, vide which, the complaint of the complainant was accepted by directing OPs to refund the amount of Rs.7,29,000/-, the amount deposited by the complainant with them alongwith interest @12% per annum from the date of its payment till its final realization; First Appeal No.986 of 2016 4
further to pay Rs.20,000/- as compensation for mental harassment and Rs.5000/- as litigation expenses. The appellants of this appeal are opposite parties in the original complaint before the District Forum and respondent of this appeal is complainant therein and they be referred, as such, hereinafter for the sake of convenience.
3. The appellants of first appeal no.988 of 2016 have directed this appeal against order dated 30.08.2016 of District Consumer Disputes Redressal Forum Faridkot passed in complaint no.116 of 2016, vide which, the complaint of the complainant was accepted by directing OPs to refund the amount of Rs.4,86,000/-, the amount deposited by the complainant with them alongwith interest @12% per annum from the date of its payment till its final realization; further to pay Rs.20,000/- as compensation for mental harassment and Rs.5000/- as litigation expenses. The appellants of this appeal are opposite parties in the original complaint before the District Forum and respondent of this appeal is complainant therein and they be referred, as such, hereinafter for the sake of convenience. Facts of complaint no.114 of 2016:
4. Complainant Gurmeet Singh instituted the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments, that vide application no.0223 worth Rs.500/-, he applied for a residential plot in the scheme of PUDA Enclave, Sugar Mill site, Kotkapura Road, Faridkot and also paid Rs.2,70,000/- as earnest money (10% of total amount), after availing loan facility from State Bank of India and First Appeal No.986 of 2016 5 thereafter OP sent letter of intent dated 24.12.2013 for plot measuring 300 square yards with all terms and conditions to him and also agreed to give allotment of plot after deposit of 25% of total amount to him. In this way, he deposited total amount of Rs.7,29,000/- with OPs and they gave option to him for depositing the remaining amount of Rs.19,71,000/- within 60 days of allotment of letter by assuring 5% rebate or to pay the remaining amount in six instalments with interest as per rules. The complainant abided by all the terms and conditions of the contract, but till date, OPs did not give any allotment letter to him. He visited the site, but there was no development work and he also enquired from OPs for non development of work at site, but to no effect. The complainant found no progress regarding roads, parks, street lights, water supply and electricity lines, when he visited the site and even there was no demarcation of the plot as well. He also visited the office of Halqa Patwari to find out the revenue record and he came to know that Punjab Government has transferred the mutation of said property in the name of Punjab Cooperative Department and OPs are no more the owners of the property. The above land has been transferred in the mutation register in the name of Punjab Cooperative Department and OPs were not owner of the same. The complainant alleged unfair trade practice and deficiency in service on the part of OPs. The complainant, thus, filed complaint praying that OPs be directed to refund the amount of Rs.7,29,000/- alongwith interest @18% per annum compounded quarterly till actual realization; further to pay First Appeal No.986 of 2016 6 amount of Rs.5,00,000/- for mental harassment and Rs.10,000/- as litigation expenses.
5. Upon notice, OPs appeared and filed written reply, denying any deficiency in service on their part. This fact was denied by OPs that they failed to fulfill the terms and conditions of contract. This fact was also denied, that no allotment letter was issued to the complainant. This fact was also denied that complainant visited the Circle Patwari and found that the land was in the name of Punjab Cooperative Department and OPs are not the owner of the property. This fact was denied that no construction was raised by the OPs on the site. OPs denied the averments of complainant and prayed for dismissal of the complaint.
6. The complainant tendered in evidence his affidavit alongwith copies of documents Ex.C-1 to C-9 and closed the evidence. As against it, OPs tendered in evidence affidavit of Gurjant Singh, Estate Officer Ex.OP-1 and closed the evidence. On conclusion of evidence and arguments, the District Forum allowed complaint no.114 of 2016 of complainant Gurmeet Singh, as referred to above. Aggrieved by order of the District Forum, OPs now appellants, have preferred first appeal no.986 of 2016 against the same.
Facts of Complaint No.115 of 2016
7. Complainant Vishal Kumar instituted the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") First Appeal No.986 of 2016 7 against OPs on the averments that, vide application form no.0221 worth Rs.500/-, he applied for a residential plot in the scheme of PUDA Enclave, Sugar Mill site, Kotkapura Road, Faridkot and also paid Rs.2,70,000/- as earnest money (10% of total amount), vide loan facility from State Bank of India and thereafter, OP sent letter of intent dated 24.12.2013 for plot measuring 300 square yards with all terms and conditions and also agreed to give allotment of plot after deposit of 25% of total amount to him. In this way, he deposited total amount of Rs.7,29,000/- with OPs and they gave option to him for depositing the remaining amount of Rs.19,71,000/- within 60 days of allotment of letter by assuring 5% rebate or to pay the remaining amount in six instalments with interest as per rules. The complainant complied with all the terms and conditions of the contract, but till date, OPs did not give any allotment letter to him. He visited the site, but there was no development work thereat and he also enquired from OPs for non development of work at site, but to no effect. The complainant found no progress with regard to roads, parks, street lights, water supply and electricity lines, when he visited the site and even there was no demarcation of the plot thereat. He also visited the office of Halqa Patwari to find out the revenue record and he came to know that Punjab Government has transferred the mutation of said property in the name of Punjab Cooperative Department and OPs were no more owner of the property. The above land was transferred in the mutation register in the name of Punjab Cooperative Department and OPs were not owner of the same. The First Appeal No.986 of 2016 8 complainant alleged unfair trade practice and deficiency in service on the part of OPs. The complainant, thus, filed complaint praying that OPs be directed to refund the amount of Rs.7,29,000/- alongwith interest @18% per annum compounded quarterly till actual realization; further to pay Rs.5,00,000/- for mental harassment and Rs.10,000/- as litigation expenses.
8. Upon notice, OPs appeared and filed written reply, denying any deficiency in service on their part. This fact was denied by OPs that they failed to fulfill the terms and conditions of contract. This fact was also denied that no allotment letter was issued to the complainant. This fact was also denied that complainant visited the Circle Patwari and found that the land was in the name of Punjab Cooperative Department and OPs were not the owner of the property. This fact was denied that no construction was raised by the OP on the site. OPs denied the averments of complainant and prayed for dismissal of the complaint.
9. The complainant tendered in evidence affidavit alongwith copies of documents Ex.C-1 to C-9 and closed the evidence. As against it, OPs tendered in evidence affidavit of Gurjant Singh, Estate Officer Ex.OP-1 and closed the evidence. On conclusion of evidence and arguments, the District Forum allowed complaint no.115 of 2016 of complainant Vishal Kumar, as referred to above. Aggrieved by order of the District Forum, OPs now appellants, have preferred first appeal no.987 of 2016 against the same. Facts of Complaint No.116 of 2016 First Appeal No.986 of 2016 9
10. Complainant Vishavdeep instituted the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that vide application form worth Rs.500/-, he applied for a residential plot in the scheme of PUDA Enclave, Sugar Mill site, Kotkapura Road, Faridkot and also paid Rs.1,80,000/- as earnest money (10% of total amount), vide loan facility from State Bank of India and thereafter, OP sent letter of intent dated 26.12.2013 for plot measuring 200 square yards with all terms and conditions and also agreed to give allotment of plot after deposit of 25% of total amount to him. In this way, he deposited total amount of Rs.4,86,000/- with OPs and they gave option to him for depositing the remaining amount of Rs.13,14,000/- within 60 days of allotment of letter by assuring 5% rebate or to pay the remaining amount in six instalments with interest as per rules. The complainant followed all the terms and conditions of the contract religiously till date, but OPs had not given any allotment letter to him. He visited the site, but there was no development work found thereat and he also enquired from OPs for non development of work at site, but to no effect. The complainant found no progress with regard to roads, parks, street lights, water supply and electricity lines, when he visited the site and even there was no demarcation of the plot as well. He also visited the office of Halqa Patwari to find out the revenue record and he came to know that Punjab Government has transferred the mutation of said property in the name of Punjab Cooperative Department and OPs were no more owner of the property. The First Appeal No.986 of 2016 10 above land was transferred in the mutation register in the name of Punjab Cooperative Department and OPs were not owner of the same. The complainant alleged unfair trade practice and deficiency in service on the part of OPs. The complainant, thus, filed complaint praying that OPs be directed to refund the amount of Rs.4,86,000/- alongwith interest @18% per annum compounded quarterly till actual realization; further to pay Rs.5,00,000/- for mental harassment and Rs.10,000/- as litigation expenses.
11. Upon notice, OPs appeared and filed written reply denying any deficiency in service on their part. This fact was denied by OPs that they failed to fulfill the terms and conditions of agreement. This fact was also denied that no allotment letter was issued to the complainant. This fact was also denied that complainant visited the Circle Patwari and found that the land was in the name of Punjab Cooperative Department and OPs were not the owners of the property. This fact was denied that no construction was raised by the OP on the site. OPs denied the averments of complainant and, thus, prayed for dismissal of the complaint.
12. The complainant tendered in evidence affidavit alongwith copies of documents Ex.C-1 to C-10 and closed the evidence. As against it, OPs tendered in evidence affidavit of Gurjant Singh, Estate Officer Ex.OP-1 and closed the evidence. On conclusion of evidence and arguments, the District Forum allowed complaint no.116 of 2016 of complainant Vishal Kumar, as referred to above. First Appeal No.986 of 2016 11 Aggrieved by order of the District Forum, OPs now appellants, have preferred first appeal no.988 of 2016 against the same. Main Order
13. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. Since, common factual and legal controversy is involved in all the above referred appeals, hence we dedice them together by means of this order. We touch the main appeal no.986 of 2016 in this case. Evidence on the record has also been examined by us with the able assistance of counsel for the parties. It is an undisputed fact that OPs launched above scheme for development of residential area at Sugar Mill site Faridkot. The complainant applied for allotment of plot therein, vide application no.0223 Ex.C-3 on the record. The complainant paid Rs.2,70,000/- as earnest money to OPs by availing loan from bank. OPs sent letter of intent dated 24.12.2013 bearing no.10481, to the complainant in this regard, vide Ex.C-4 on the record. It records the terms and conditions between the parties with regard to the allotment of the plot. The plot was of 300 square yards. The amount of 25% as earnest money was deposited by the complainant with OPs within the prescribed period, but OPs have not delivered the possession thereof to complainant, as per clause 14 of letter of intent Ex.C-4 on the record. By now, the complainant has paid the total amount of Rs.7,29,000/-. The OPs gave the option to complainant either to deposit the lump sum amount within 60 days of allotment letter, then he would be given 5% rebate or to deposit the First Appeal No.986 of 2016 12 remaining amount in six monthly instalments with interest under rules. It has appeared in the evidence of the complainant that when he visited the site, there was no sign of development on the site. It has further appeared on the record that even demarcation of the plot was not carried out by the OPs. He further stated that he contacted Circle Patwari and he found that the land was in the name of Punjab Cooperative Department and not in the name of OPs. The grievance of the complainant is that OPs received the amount of Rs.7,29,000/- from him without any delivery of possession of the site within agreed period of 18 months from the date of issuance of allotment letter or completion of development work, whichever was earlier. The letter of intent contains comprehensive terms and conditions, to be followed by both the parties. Ex.C-5 is copy of receipt of Rs.4,59,000/- deposited by the complainant. Ex.C-6 is copy of DD in the name of OP of Rs.54,000/- and Ex.C-7 is the copy of DD of Rs.4,05,000/- in the name of OP with regard to payment made by the complainant. The evidence of the complainant has gone unrebutted on the record by the OP with regard to non-existence of any development work on the spot. We have gone through the affidavit of Gurjant Singh, Estate Officer of OPs Ex.OP-1 on the record. There is no worth inspiring evidence contained in his affidavit to rebut the evidence of the complainant. Consequently, it is proved fact that OPs have not raised any development work on the spot and even have not carried out any demarcation of the plot so far.
First Appeal No.986 of 2016 13
14. The next point of controversy is whether OPs indulged in unfair trade practice in advertising the scheme and received the amounts from the complainant. We find force in the submission of the complainant in this regard. Mutation no.16821 in Ex.C-8 is on the record. This document has proved that Punjab Cooperative Department is the owner of the property, as mutation is in its name, and has been ordered on the basis of review of mutation no.1945 dated 03.05.2016. To counter this point, the counsel for the OPs now appellants relied upon photostat copy of one resolution of Punjab Government on the record. No agenda number is recorded in it and even the name of year is missing on it. Even this document is placed on the record in the appeal without taking any permission to prove it by means of additional evidence. Since, this document has not been produced by the OPs before the District Forum and photostat copy of it has been placed on record in appeal only without seeking additional evidence to prove it. We find from it that the sugar mill Faridkot was purposed to be sold provided its liabilities have to be cleared. No notification of Punjab Government has followed this document on the record, so as to have the force of law. No such notification has been brought to our notice nor produced on the record. Consequently, we fimd that OPs are not vested with clear cut title to sell the property to the complainant, when they received the money from him. This is also an unfair trade practice on the part of OPs in this case. The counsel for complainant submitted that OPs are involved in some litigation with regard to the property in dispute. First Appeal No.986 of 2016 14 On this point, the counsel for the complainant referred to law laid down by the National Commission in case titled as "Jalandhar Improvement Trust, Jalandhar & another Vs. Munish Dev Sharma Sanjay Gupta" 2015(4)CPJ-309, wherein it has been held that the Improvement Trust issued allotment letters despite status quo order of High Court, the Trust could not have done it and rather played a fraud on the general public. Consequently, the refund of the deposited amount with interest and compensation and cost of litigation were ordered against the Improvement Trust Jalandhar in the cited authority. The OPs have failed to deliver the possession of the property to the complainant in this case within the prescribed period of 18 months or from the date of completion of development work, as agreed upon. No such development work existed on the site and 18 months period, as per clause 14 of letter of intent Ex.C-4 were already over at the time of filing the complaint. The OPs have utilizing the hard earned money of the complainant in this case. The National Commission has held in "EMAAR MGF Land Ltd. & another Vs. Dilshad Gill" 2015(3)CPJ-329 that the allottees are not justified in not making the payment, when allotter failed to complete the construction and to deliver the possession. The National Commission has also held in "Satish Kumar Pandey & another Vs. M/s Unitech Limited" 2015(3)CPJ-440 that delay in construction and possession by the builder and it is settled law that failure to deliver possession, being a continuous wrong, it constitutes a recurrent cause of action. So long as the possession is not delivered First Appeal No.986 of 2016 15 to him, the buyers can always approach a Consumer Forum. We reject the contention of OPs now appellants that complaint is barred by time. It is held to be a continuing cause of action in this case by us. We are also fortified by law laid down by the National Commission in "Puneet Malhotra Vs. Parsvnath Developers Ltd." 2015(2)CPJ-18 that builder is bound to complete the construction in time irrespective of recession or obstacles. We do not agree with the submission of counsel for the appellants that letter of intent is not an allotment letter, on the premise that it contains comprehensive terms and conditions equal to allotment letter. The OPs now appellants just wanted to take undue benefit of this tenuous matter. The terms and conditions of letter of intent have to be complied with by the parties and hence the submission of counsel for appellant on this point is not accepted by us.
15. From considering overall pleas and evidence on the record and order of the District Forum, we find that the District Forum correctly appreciated the controversy in this case by holding OPs deficient in service and guilty of unfair trade practice. The order of the District Forum is found to be flawless in this appeal and the same is affirmed.
16. As a sequitur of our above discussion, first appeal no.986 of 2016 is without merit and the same is hereby dismissed. Similarly, we find no merit in first appeal no.987 of 2016 and it is dismissed and similarly another first appeal no.988 of 2016 is without merit and First Appeal No.986 of 2016 16 same is also dismissed. All the above referred appeals stands dismissed.
17. The appellant of first appeal no.986 of 2016 had deposited the amount of Rs.25,000/- and Rs.6,62,362/-with this Commission in compliance with order of this Commission. All these amounts alongwith interest, which accrued thereon, if any, be remitted by the Registry to the respondent of this appeal, being complainant, by way of a crossed cheque/demand draft after the expiry of 45 days of this order subject to stay order, if any.
18. The appellant of first appeal no.987 of 2016 had deposited the amount of Rs.25,000/- and Rs.6,62,362/- with this Commission in compliance with order of this Commission. All these amounts alongwith interest, which accrued thereon, if any, be remitted by the Registry to the respondent of this appeal, being complainant, by way of a crossed cheque/demand draft after the expiry of 45 days of this order subject to stay order, if any.
19. The appellant of first appeal no.988 of 2016 had deposited the amount of Rs.25,000/- and Rs.4,40,975/- with this Commission in compliance with order of this Commission. All these amounts alongwith interest, which accrued thereon, if any, be remitted by the Registry to the respondent of this appeal, being complainant, by way of a crossed cheque/demand draft after the expiry of 45 days of this order subject to stay order, if any. First Appeal No.986 of 2016 17
20. Arguments in above referred appeals were heard on 26.05.2017 and the orders were reserved. Certified copies of the orders be communicated to the parties as per rules.
21. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER June 01, 2017 MM