State Consumer Disputes Redressal Commission
Punjab Urban Planning & Development ... vs Sunil Kumar S/O Shri Mohinder Pal on 18 December, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 532 of 2010
Date of institution: 5.4.2010
Date of Decision: 18.12.2013
Punjab Urban Planning & Development Authority (PUDA) through its Chief
Administrator, SCO-41, Opposite District Admn. Complex, Jalandhar City.
.....Appellant/Opposite Party
Versus
Sunil Kumar s/o Shri Mohinder Pal R/o 60-C, Model Town, Phagwara.
.....Respondent/Complainant
Argued By:-
For the appellant : Sh. Balwinder Singh, Advocate
For the respondent : None.
First Appeal against the order dated 24.2.2010
passed by the District Consumer Disputes
Redressal Forum, Kapurthala (Addl. Bench at
Jalandhar)
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member
Shri Jasbir Singh Gill, Member
ORDER
Gurcharan Singh Saran, Presiding Judicial Member The appellant/opposite party (hereinafter called "the opposite party") has filed the present appeal against the order dated 24.2.2010 passed by the District Consumer Disputes Redressal Forum, Kapurthala(hereinafter called "the District Forum") in consumer complaint No.717, Complaint RBT 14/10 dated 19.1.2010 vide which the complaint filed by the respondent/complainant(hereinafter called 'the complainant') was allowed with the direction to the opposite party to pay Rs. 74,664/- to FIRST APPEAL NO. 532 OF 2010 2 the complainant alongwith interest @ 8% per annum from the date of filing the complaint till realization and to pay Rs. 3,000/- as litigation costs.
2. The complaint was filed by complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the opposite party on the allegations that opposite party had allotted him a plot No. 850 at Urban Estate, Phagwara vide memo No. 9035 dated 23.7.1999 and he had deposited Rs. 2,52,000/- as full and final payment to the opposite party vide draft No. 652757 dated 23.9.1999. When the complainant approached the opposite party to obtain NOC, the opposite party demanded a sum of Rs. 74,664/- from the complainant informing the complainant that a sum of Rs. 4500/- was less deposited and the other amount has been imposed as a fine. The complainant deposited a sum of Rs. 74,664/- vide receipt No. 29 dated 8.5.2008 and a sum of Rs. 92,360/- as non-construction charges and a sum of Rs. 74,664/- has been wrongly recovered from the complainant. He issued a legal notice for the refund of the same but no action upon the same. Hence, the complaint.
3. The complaint was contested by the opposite party, who filed written statement taking preliminary objections that the complaint is not maintainable; the complainant himself is wrong, therefore, he has no locus standi to file the complaint; the District Forum does not have the territorial jurisdiction; as no cause of action has ever accrued to the complainant and that he is not complainant under the Act. On merits, it has been stated that plot was allotted with tentative price of Rs. 3,60,000/-. Rs. 54,000/- was required to be deposited FIRST APPEAL NO. 532 OF 2010 3 within 30 days of the issuance of the allotment letter and the amount of Rs. 36,000/- already paid by the complainant was to be taken into consideration in addition to Rs. 54,000/- to form 25% the total tentative price whereas balance amount of Rs. 2,70,000/- was to be deposited in lumpsum within 60 days from the date of issuance of the allotment letter and that he was entitled to 5% rebate otherwise schedule of installment was provided alongwith interest. A sum of Rs. 54,000/- was received from the complainant on 17.8.2009 and he further deposited a sum of Rs. 2,52,000/- vide draft dated 22.9.1999 towards payment of 75% whereas he had deposited less amount he has charged 5% on the total amount of Rs. 3,60,000/- whereas it should have been on the balance payment of Rs. 2,70,000/-. In this way he had deposited Rs. 4500/- less and other amount was calculated as a penalty interest, therefore, the amount has been rightly claimed by the opposite party and there is no deficiency on their part in their services.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-A, allotment letter Ex. C-1, receipt dt. 23.9.99 Ex. C-2, receipt dt. 8.5.08 Ex. C-3, agreement Ex. C-4, application Ex. C-5, legal notice Ex. C-6, postal receipt Ex. C-7. On the other hand, the opposite party had tendered into evidence affidavit of Harbir Singh Ex. RW-1/A, affidavit of Sunil Kumar Ex. R-1, indemnity bond Ex. R-2, affidavits of Jagdish Singh Ex. R-3&4, Intkal letter Ex. R-5, NOC Ex. R-6, Sale agreement Ex. R-7, letter regarding FIRST APPEAL NO. 532 OF 2010 4 sale of plot Ex. R-8, application form for change of ownership Ex. R- 9, Sale agreement Ex. R-10, agreement Ex. R-11, letter of OP dt. 6.8.08 Ex. R-12, application form for sanction of sewerage Ex. R-13, completion certificate Ex. R-14, permission for partially occupation certificate Ex. R-15, application for occupation certificate Ex. R-16, details of amount calculation Ex. R-17, letter of OP dt. 23.7.99 Ex. R- 18, application form for issuance of conveyance deed Ex. R-19, receipt Ex. R-20, extension fee letter Ex. R-21, receipt Ex. R-22, application for deposit of amount Ex. R-23, application form for issuance of conveyance deed Ex. R-24, affidavit Ex. R-25, receipt Ex. R-26, application form for permission to sale Ex. R-27, reply to legal notice Ex. R-28, notice regarding deposit of due amount Ex. R-29, receipt Ex. R-30, application Ex. R-31, Issue of Roof Level Certificate Ex. R-32.
6. After going through the allegations in the complaint, written statement, evidence and documents brought on the record, the learned District Forum vide impugned order observed that in case a sum of Rs. 4500/- was deposited from the actual amount then notice should have been issued to the complainant but this fact was raised by the Ops only when NOC was applied by the complainant, therefore, there is deficiency in services of the Ops and accordingly, the complaint filed by the complainant was allowed as stated above.
7. Feeling aggrieved with the order passed by the learned District Forum, the appellant/opposite party has filed the present appeal.
FIRST APPEAL NO. 532 OF 2010 5
8. We have heard the learned counsel for the appellant Sh. Balwinder Singh, Advocate but none appeared on behalf of the respondent.
9. In the grounds of appeal, it has been contended that the total price of the plot was Rs. 3,60,000/-, 25% was paid at the time of allotment and the remaining amount of Rs. 2,70,000/- in case it is paid within 60 days from the date of allotment then the complainant was entitled to rebate of 5%. He deposited Rs. 2,52,000/- after deducting 5% rebate but in fact he had deposited less amount of Rs. 4500/-, accordingly, the interest @ 15% was calculated after imposing penalty as per the rules and regulations for a period of 5 years and after that @ 2% per mensem as per Clause 9 of the allotment. As per clause 9 of the allotment letter Ex. R-18 since the full amount was not deposited, therefore, the complainant was not entitled to any rebate and interest from 23.7.1999 to 23.9.1999 @ 15% comes to Rs. 6879/- and total amount came as Rs. 2,76,879/- and on 23.9.1999 a sum of Rs. 2,52,000/- was deposited and balance was Rs. 24879/-, from 24.9.1999 to 23.1.2003 interest @ 15% comes to Rs. 12,453/- and total comes to Rs. 37,332/- and Rs. 37,332/- were charged because as per the Clause/policy, the penalty cannot exceed beyond 100%. In this way, the amount comes to Rs. 74,664/- and this fact has not considered in a proper prospect by the learned District Forum, therefore, the order passed by the learned District Forum is liable to be set-aside.
10. No doubt that according to allotment letter dated 23.7.1999 Ex. R-18, the total price of the plot was Rs. 3,60,000/- @ FIRST APPEAL NO. 532 OF 2010 6 Rs. 1800/- per sq. yard and Rs. 54,000/- was to be paid within 30 days from the date of issue of this allotment letter and Rs. 54,000/- was deposited by the complainant and there is no objection on behalf of the Ops in the written statement that this amount was not deposited within time, therefore, the balance amount was Rs. 2,70,000/-. In case this amount is deposited in lumpsum without interest within 60 days from the date of allotment then there was rebate of 5% otherwise the amount was to be deposited with the interest @ 15% interest per annum with half yearly installments. 5% of Rs. 2,70,000/- comes to Rs. 13,500/- and in case he was to get rebate he was required to deposit Rs. 2,56,500/- whereas he had deposited Rs. 2,52,000/-, therefore, he had deposited Rs. 4500/- less amount. Therefore, he had not deposited the full amount, therefore, he was not entitled to 5% rebate. In this way he had deposited Rs. 18,000/- less on 23.9.1999, otherwise his due date was 23.7.2000. However, on 23.7.1999 when he had deposited a sum of Rs. 2,52,000/- a receipt was given that the complainant has paid the full payment, therefore, the complainant was not in the knowledge whether any outstanding amount is against him. It was only when he applied for NOC then the Department raised the demand of Rs. 74,664/-. It has been argued by the counsel for the appellant that the Department does not calculate the outstanding amount on every date of deposit and it is calculated as it when any person applies for 'NOC'. No doubt the Department does not calculate the balance amount on every date of deposit in case the payment is made in installments but in case the payment is made lumpsum and the FIRST APPEAL NO. 532 OF 2010 7 receipt is given as full payment then at that time, the Ops are required to check the balance amount and only then they issue the receipt of full payment. No doubt there can be clerical mistake at the time of calculation, for that the Department is entitled to recover the balance amount. But so far as the penal interest or penalty is concerned, the Department cannot charge the penal interest or penalty for their own fault. Therefore, the Department will not be entitled to charge any penal interest or the penalty as is being claimed by them for their own fault, therefore, the judgment passed by the learned District Forum is requires modification to this extent.
11. No other point has been raised.
12. In view of the above discussion, the appeal filed by the appellant is partly accepted. The order passed by the learned District Forum is modified. It is held that the Department will be entitled to recover Rs. 18,000/- only from the complainant and remaining amount could be refunded by them as per the orders of the learned District Forum with no order as to costs of the complaint or appeal.
13. The arguments in this appeal were heard on 12.12.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
14. If the respondent had deposited any excess amount with the appellant as per the above direction, the same be remitted to the respondent within 30 days from the receipt of copy of the order.
15. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. This amount of Rs. 25,000/- with interest accrued thereon, if any, be remitted by the FIRST APPEAL NO. 532 OF 2010 8 registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member December 18, 2013. (Jasbir Singh Gill) as Member