State Consumer Disputes Redressal Commission
Ashok Kumar vs Municipal Council Fazilka on 12 January, 2018
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.687 of 2017 Date of Institution: 03.10.2017 Order Reserved on : 11.01.2018 Date of Decision : 12.01.2018 1. Ashok Kumar aged 48 years son of Sh. Raj Kishore, residents of Chugh Street, Fazilka, Tehsil and District Fazilka. 2. Harmesh Kumar aged 50 years son of Wasawa Ram, residents of Jora Singh Maan Nagar, Fazilka, Tehsil and District Fazilka. Appellants/Complainants Versus Municipal Council, Fazilka through its Executive Officer Respondent/opposite party First Appeal against order dated 08.06.2017 passed by the District Consumer Disputes Redressal Forum, Ferozepur ................................................................................... Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt.Surinder Pal Kaur, Member Present:-
For appellants : Sh. Harpal Singh Sidhu, Advocate For respondent : Sh. Surinder Pal Singh, Advocate J.S KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by the appellant is to order dated 08.06.2017 of District Consumer Disputes Redressal Forum, Ferozepur, dismissing the complaint of the appellants. The appellants of this appeal are complainants in the complaint and respondent of this appeal is opposite party therein and they be they be referred as such, hereinafter for the sake of convenience.
2. The complainants have filed the complaint U/s 12 of Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments, that they were the successful bidders in auction conducted by OP for sale of residential plot bearing no. 8 (size 25'x55') situated at Sainia Road Fazilka on 28.05.2012. The OP received the amount of Rs. 20,000/- as security before auction from complainants, vide receipt no. 34/379 dated 28.05.2012. As per terms and conditions of the auction, the OP got deposited the part payment of Rs.2,01,670/- and Rs. 27,815/-, as development charges in cash from the complainants. The complainants gave the bid for their personal residence. The complainants requested OP number of times to receive the remaining amounts including development charges, as per instructions of OP. OP deferred the matter on one pretext or the other without any valid reason. OP has been alleged to be guilty of negligence in not receiving the remaining amounts from the complainants. They sent letter to OP on 20.10.2016 and on 09.01.2017 after waiting for sufficient long time. OP admitted the claim of the complainants, but has not provided the sought after relief to them. OP held out that a dispute with Punjab Wakf Board was pending before Additional District Judge Ferozepur with regard to the land in dispute and hence it could not receive the balance amounts from complainants. The complainants alleged deficiency in service on the part of OP. They have prayed that OP be directed to provide the refund of the deposited amount of Rs. 2,39,485/- along with interest @ 18% per annum or to hand over the possession of the above plot by executing the conveyance deed in their favour. They also prayed for Rs.1,50,000/- as compensation and Rs.11,000/- as costs of litigation.
3. Upon notice, OP appeared and filed written reply and contested the complaint of the complainant vehemently by raising preliminary objections that complaint is false, frivolous and vexatious to their knowledge. The complainants have not come to the Forum with clean hands and concealed the material facts from the Forum. The factual scenario is that complainants gave bid in open auction for plot no. 8 on 28.05.2012 and they purchased the plot to the tune of Rs.6,65,000/- plus Rs.53,625/- as development charges , totaling Rs.7,18,625/-. The terms and conditions of the bid were duly read over to all bidders including the complainants at the time of bid. The complainants only deposited Rs. 2,21,670/- out of the cost of the plot and further Rs.17,875/- were deposited for development charges, but has not deposited any further amount, as per conditions of the bid. The amount of Rs.4,43,330/- qua the sale of the plot and Rs.35,750/- are due as development charges from the complainants. The OP has right to forfeit the right of the complainants and further to re-auction the plot for default of the complainants in not making payment of the balance amounts. The matter is liable to be resolved by the Arbitrator, being Deputy Director of Local Bodies and hence Consumer Complaint is not maintainable. The complaint was contested even on merits on the above premises by OP and OP prayed for dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-4 and supplementary affidavit of Ashok Kumar/complainant no.1 Ex.C-5 and closed the evidence. As against it; OP tendered in evidence affidavit of Gurdas Singh Executive Officer Municipal Committee Fazilka Ex.R-1 along with copy of document Ex.R-2 and closed the evidence. On conclusion of evidence and arguments, the District Forum Ferozepur dismissed the complaint of the complainants by virtue of order dated 08.06.2017, as referred to above. Dissatisfied with the order of the District Forum Ferozepur, the complainants now appellants, carried this appeal against the same.
5. We have heard learned counsel for the parties and also examined the record of the case. The evidence on the record has been perused by us with the able assistance of counsel for the parties. The complainant no.1/ Ashok Kumar testified in his affidavit Ex.C-1 that complainants remained successful bidders in auction held for sale of plot bearing no. 08 situated at Sainia Road Fazilka on 28.05.2012. He further stated that the amount of Rs. 20,000/- was deposited by him, as security with OP, vide receipt no. 34/379 dated 28.05.2012. He further deposed that he deposited Rs.201670/-as sale price and Rs.17815/- as development charges. He further testified in his affidavit that OP has not received the balance amounts from him on one reason or the other. He has alleged deficiency in service on the part of OP in not accepting the remaining amounts on the pretext that the court of Additional District Judge Ferozepur was in seision of the lis with Punjab Wakf Board. Ex.C-2 is application dated 20.10.2016 submitted by the complainant no.1 to Executive Officer Nagar Council, Fazilka for demarcation of the plot. Ex.C-3 is application submitted by the complainant no.1 to A.E Nagar Council Fazilka for demarcation of the plot. Ex.C-4 is information supplied to Ashok Kumar/complainant no.1 by Executive Officer-cum-Public Information Officer Nagar Council Fazilka under RTI Act to the effect that complainants have paid the amount of Rs.2,39,485/- to OP and balance amounts are still due. The complainants also filed supplementary affidavit Ex.C-5 by denying the averments of the OP, that they were bound to deposit all installments in the shape of advance cheque at the spot. OP also adduced rebuttal evidence consisting of affidavit of Sh. Gurdas Singh Executive Officer Municipal Committee Fazilka Ex.R-1. He deposed in his affidavit that both complainants had given a bid in the open auction for plot no. 8 on 28.05.2012 and they purchased the plot to the tune of Rs.6,65,000/- plus Rs.53,625/-, as development charges, thus total cost of the plot was Rs. 7,18,625/-. But, the complainants have only deposited Rs.2,21,670/- out of the cost of the plot and further Rs.17,875/- deposited towads the development charges only. He further deposed that rest of the amounts have not been deposited by the complainants with OP in this case.
6. From hearing respective submissions of counsel for the parties and from perusal of terms and conditions of the auction, we proceed to decide this case. Clause no. 2 of the terms and conditions of the auction states that the bidder will have to deposit Rs.20,000/- as earnest money in cash or by way of draft before the start of the auction. Clause 3 of terms and conditions of Ex.R-2 further states that any person in whose favour, the bid will be accepted, will have to deposit 1/3rd of the bid amount and development charges at the spot. Clause 4 of the terms and conditions further lays down that the remaining 2/3rd amount of the plot and development charges shall be received in two equal installments after every three months. The first installment will be received on 28.08.2012 and the second installment will be received on 28.11.2012 and two advance cheques of the same amount will be received at the spot. In case of fall of sudden holiday, the installment will be received on next working day. Clause 6 of the terms and conditions further lays down that in case, the cheque is not encashed , the amount already deposited by the purchaser shall be forfeited without issuing any notice and Municipal Committee Fazilka would have due right to re-auction the plot. Clause 7 of the terms and conditions of Ex.R-2 further states that possession would be delivered to the purchaser after the deposit of entire amount as well as execution of the sale deed. It is, thus, evident from perusal of terms and conditions of auction Ex.R-2 that bidder was bound to pay the remaining amount within three months period in the shape of two installments falling due on 28.08.2012 and 28.11.2012. Admittedly, the complainants have not deposited the balance 2/3rd amount of sale price and development charges by means of two installments due on 28.08.2012 and 28.11.2012. The complainants wanted demarcation of the property, as depicted in Ex.C-2 and Ex.C-3 without making compliance of condition no.4 of Ex.R-2 terms and conditions of the auction. The District Forum Ferozepur has correctly observed in its order that the complainants have not made the compliance of the terms and conditions of the agreement Ex.R-2 by committing default in making the payments of the entire balance amount in two installments falling due on 28.08.2012 and 28.11.2012. We are in agreement with the view expressed by the District Forum in the impugned order when touched on the yardstick of evidence on the record..
7. As a result of our above discussion, we have not come across any illegality or material irregularity in the order of the District Forum calling for any interference in it. The appeal filed by the appellants is dismissed by affirming the order of the District Forum Ferozepur dated 08.06.2017.
8. Arguments in this appeal were heard on 11.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
9. The appeal 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 January 12, 2018 (ravi)