State Consumer Disputes Redressal Commission
Ashwani Malhotra vs Jalandhar Improvement Trust on 23 January, 2020
0STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.598 of 2019
Date of institution : 06.08.2019
Date of decision : 23.01.2020
Ashwani Malhotra S/o Late Sh. S.L. Malhotra, Resident of 27, Kasturba
Nagar, Jalandhar Cantt.
Phone No.9888159721
E-mail ID:[email protected]
....Complainant
Versus
Jalandhar Improvement Trust, G.T. Road, Jalandhar, Punjab 144001,
through its Chairman/Administrator.
Phone:0181-2459824, 0181-2459821, 0181-2456707
....Opposite Party
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Rajinder Kumar Goyal, Member
Mrs. Kiran Sibal, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the complainant : Sh. Munish Goel, Advocate For the opposite party : Sh. Prem Kumar, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), against the opposite party, seeking following directions to it:
i) to refund the amount of ₹16,85,148/-, along with interest at the rate of 15% per annum from the date of payment till realization;
ii) to pay compensation of ₹2,00,000/-, on account of mental agony and harassment suffered by the complainant; and Consumer Complaint No.598 of 2019 2
iii) to pay ₹55,000/- towards litigation expenses.
Facts of the Complaint
2. Brief facts, as set out in the complaint, are that the complainant was in need of a plot for constructing his house to live therein. The opposite party launched a scheme known as 94.97 Acre Development Scheme in "Surya Enclave Extension", Jalandhar. The complainant applied for allotment of a plot in the said Scheme, by depositing ₹2,60,100/-, through DD/Pay Order No.056342 dated 06.09.2011, vide receipt Ex.C-2. Draw of lots was held on 19.05.2016 i.e. after five years after submission of application by him. He remained successful in the draw of lots and was allotted plot No.130-C, measuring 153 sq.yds., vide letter No.929 dated 07.06.2016 Ex.C-3. Total cost of the plot was fixed as ₹26,01,000/- and the complainant deposited a total sum of ₹16,85,148/- with the opposite party towards the price of the plot. However, the opposite party failed to offer possession of the plot, despite repeated requests of the complainant. He visited the site in May, 2017 and found that there was no development at all and it was even difficult to locate the boundaries of the said plot. No basic amenities such as roads, water supply, electricity etc. were provided. The opposite party misappropriated the amount of the buyers, including the complainant, on the pretext of alleged stay orders of the Hon'ble High Court for some area, which it did not develop. The complainant wrote letter dated 26.05.2017, mentioning that since the opposite party failed to offer possession of plot, along with basic amenities, so either the interest imposed on him, which was yet to be collected, be waived off, or the amount deposited by him be Consumer Complaint No.598 of 2019 3 refunded along with interest. The complainant again visited the site on 16.07.2019 and found that there was no development at the site and he clicked photographs Ex.C-8 to Ex.C-12. The aforesaid act and conduct of the opposite party amount to deficiency in service. The complainant earlier filed CC No.320 of 2017 before District Forum, Jalandhar; which was disposed of on 28.05.2019 with directions to return the complaint, with liberty to him to file fresh complaint before the Forum, having pecuniary jurisdiction. The opposite party was required to offer possession up to 07.12.2018 and, as such, the present complaint has been filed, which is within limitation.
Defence of the Opposite Parties
3. Upon notice, the opposite party appeared and filed reply to the complaint, raising preliminary objections that the complaint is barred by limitation. The complainant deposited the last instalment i.e. part payment of 2nd instalment amounting to ₹3,90,150/- on 30.05.2017, whereas the present complaint was filed on 06.08.2019 i.e. after the expiry of 2 years and 4 months. As per Section 24A of the Act, the limitation to file the complaint is only two years from the date of accrual of cause of action. It was further objected that the complainant is a defaulter in making payment of instalments. As per terms of allotment letter dated 07.06.2016, the allottee was required to deposit 1/4th amount of plot within 30 days and the remaining 75% amount along with interest being 1st, 2nd, 3rd, 4th and 5th instalments, as per details mentioned in the allotment letter. As per Clause-3 of the allotment letter, if the amount of instalments was not deposited up to 6 months from the specified date, the plot was to be deemed to be forfeited as per rules, Consumer Complaint No.598 of 2019 4 which could be restored only after the recovery of penal interest, 20% restoration charges and 6% penalty etc. As per Clause-7 thereof, the basic amenities under the scheme were to be completed within a period of 2-1/2 years and within that period, instalments were to be paid and possession of the plot could be taken after execution of the Agreement to Sell between the parties. The complainant deposited ₹4,87,688/- towards first instalment on 02.12.2016. The second instalment of ₹4,68,180/- was due on 05.06.2017, but he paid only part payment of ₹3,90,150/- on 30.05.2016. The possession of the plot is with the Trust, which has been handed over to it by the Land Acquisition Collector. The complainant can visit the office of the Trust to get possession of the plot, but he failed to turn up to take the same. It was further pleaded that the opposite party has already carried out the development works in the entire scheme area, by providing all the basic amenities after spending lot of finances. Vide letter dated 21.11.2012 issued by the Improvement Trust, cheque bearing No.426300 dated 20.11.2012 amounting to ₹1,60,826/- was sent to PSPCL, showing that the work of laying of electricity poles and cables in the Scheme was done in the year 2012. Further letters dated 05.10.2015, 25.01.2016, 23.05.2016 and 24.10.2017 as well as site report dated 14.06.2019 duly show the development at the site. It was further pleaded that the claim of the complainant for refund of the deposited amount is not maintainable, as per the Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules 1983/1999, as amended from time to time; as per which the refund of the amount can be made only to such applicant, who remained unsuccessful in the draw of lots. However, since after being Consumer Complaint No.598 of 2019 5 successful in the draw of lots, the complainant failed to pay due instalments, so he is not entitled to the refund of the deposited amount. The plot, in question, is not involved in any litigation and no court case is pending against the same. On merits, similar pleas, as raised in preliminary objections, were reiterated and denying allegations contained in the complaint, dismissal of the same was prayed.
4. Rejoinder to the reply was filed, in which averments of the complaint were reiterated and pleadings of the reply filed by the opposite party were controverted.
Evidence of the Parties
5. To prove his claim, the complainant filed his own self attested affidavit, along with copies of documents i.e. prospectus Ex.C- 1, receipts Ex.C-2, Ex.C-4 to Ex.C-6, allotment letter dated 07.06.2016 Ex.C-3, letter dated 26.05.2017 Ex.C-7, photographs Ex.C-8 to Ex.C- 12, newspaper Ex.C-13, certified copy of order dated 28.05.2019 Ex.C- 14 and notings of opposite party Ex.C-15 (colly.).
6. The opposite party, in support of its defence, filed affidavit of Sh. Surinder Kumari, Executive Officer, along with copies of documents i.e. allotment letter dated 07.06.2016 Ex.OP-1, reports of development works Ex.OP-2 (colly.), site report Ex.OP-3, order dated 20.09.2016 passed by the Hon'ble National Commission Ex.OP-4. Contentions of the Parties
7. We have heard learned counsel for the parties and have gone through the record carefully.
8. Learned counsel for the complainant vehemently contended that the opposite party adopted unfair trade practice by launching the Consumer Complaint No.598 of 2019 6 Scheme and inviting applications for the allotment of plots in that Scheme; knowing fully well that it was not in a position to demarcate and allot the plots on account of the dispute already going on between it and the land owners regarding the possession of the land, forming part of that Scheme and regarding which the stay/status-quo had already been granted by the Hon'ble High Court. The possession of the plot was not delivered to the complainant, nor the opposite party was in a position to deliver the same. After the allotment of the plot, the complainant became the 'consumer' of the opposite parties and non- delivery of possession of the plot amounts to deficiency in service on the part of the opposite party, due to which the complainant suffered loss and injury; as a result of the inflation of the money and the rise in the prices of the construction material. Accordingly, the complainant is entitled to all the reliefs, as prayed in the complaint. In support of his contentions, learned counsel for the complainant has relied upon following cases:
i) Raj Kumar Goyal v. Jalandhar Improvement Trust CC No.172 of 2016 decided on 02.01.2020 (NC);
ii) Jalandhar Improvement Trust v. Sangat Singh RP No.2145 of 2019, decided on 08.01.2020 (NC):
iii) Karamjit Singh v. Jalandhar Improvement Trust & Anr. CC No.59 of 2014 decided by this Commission on 04.12.2015.
9. Per contra, learned counsel for the opposite party vehemently contended that it has already carried out development work in the entire Scheme area by providing all the basic amenities and have spent a lot of finances for the development works. The possession of Consumer Complaint No.598 of 2019 7 the plot is ready, but the complainant did not come forward to take the possession by paying the remaining sale consideration. He is willful defaulter in not depositing all the remaining instalments as detailed in the reply. Since the complainant failed to deposit the due instalments as per terms and conditions of the allotment letter, so he is not entitled to any relief. Even otherwise, the complainant is not entitled to the refund of the deposited amount, as per the Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules 1983/1999, as amended from time to time. According to said Rules, the amount can be made only to such applicant, who remained unsuccessful in the draw of lots. However, since after being successful in the draw of lots, the complainant failed to pay due instalments, so he is not entitled to the refund of the deposited amount. There is no deficiency in service on the part of the opposite party and the complaint is liable to be dismissed. In support of his contentions, learned counsel for the opposite party relied upon following cases:
i) Paramjit Kaur v. Jalandhar Improvement Trust & Anr. R.P. No.471 of 2017 decided on 24.08.2018 (NC);
ii) Baljit Singh Sandhu v. Jalandhar Improvement Trust RP No.2600 of 2016 decided on 20.09.2016 (NC); and
iii) Sandeep Rajput v. Jalandhar Improvement Trust CC No.301 of 2019, decided by this Commission, along with two other similar cases, vide order dated 30.09.2019.
Consideration of Contentions
10. We have given our thoughtful consideration to the respective contentions raised by the learned counsel for the parties. Consumer Complaint No.598 of 2019 8
11. So far as the limitation point is concerned, the same has been dealt with, while deciding Misc. Application No.1820 of 2019, vide order dated 25.11.2019, vide which delay in filing the complaint has been condoned.
12. Now, coming to merits of the case admittedly, the plot, in dispute, (measuring 153 sq.yds.) was allotted to the complainant, vide allotment letter dated 07.06.2016 Ex.C-3. The rate per sq.yd. was fixed as ₹17000/- and, as such, total cost of the plot was ₹26,01,000/-. The complainant deposited a total sum of ₹16,85,148/- with the opposite party towards the price of the plot. As per Clause-7 of the allotment letter, all the development facilities were to be provided, up to the receipt of entire sale consideration i.e. within two and a half years from the date of allotment letter by the opposite parties and the possession of the plot could be taken after executing the Sale Agreement with the Trust.
13. The complainant has alleged that the opposite party did not deliver possession of the plot, in question, on the pretext of stay orders of the Hon'ble High Court. However, the opposite party in its reply has not commented on the fact that there was status-quo order regarding some land, which was issued by the Hon'ble High Court in the writ petition filed by the land owners. In similar case i.e. in C.C. No.129 of 2015 decided by this Commission (Hardev Singh v. Chairman, Improvement Trust, Jalandhar and Ors.), vide order dated 08.03.2016, the complainant produced on record the letter dated 21.10.2005 (Memo No.6/44/05-4LG2/16729-90) written by the Local Government Department, Punjab to all the Improvement Trusts in the Consumer Complaint No.598 of 2019 9 State of Punjab, as per which before commencement of the process of allotment of the plot in the Scheme, the Chairman and Executive Officer of the Improvement Trusts were to certify on record that physical possession of the site(s) of proposed allotment/auction free from all encumbrances/obstructions was readily available for onward transmission to the prospective allottees and that there was no physical obstruction to start the construction activities. In fact, this was the position taken up by the State of Punjab in the letter dated 23.2.1983 (Memo No.66-I-3GII-83/7070-7090) which was reiterated. In that letter it was mentioned that as far as possible the Improvement Trusts shall allot/auction the sites only when they were sure that they were in a position to deliver the possession of the site to the purchaser. It is a fact that the possession of the whole of the land, which forms part of the Scheme, was not with the opposite party when it commenced the process of allotment of plots to the complainant and the other applicants. The original land owners were in possession thereof, who had obtained the status-quo order from the Hon'ble High Court. In these circumstances the opposite party should not have proceeded with the Scheme and by indulging in the activity of allotting the plots in the Scheme, when possession of whole of the land was not with it, it adopted unfair trade practice.
14. The next question to be determined is, whether the opposite party has made the required development at the site? It has been specifically deposed by the complainant in his affidavit that no such development has been done by the opposite party. To rebut that deposition of the complainant, the opposite party proved on record the Consumer Complaint No.598 of 2019 10 affidavit of Surinder Kumari, Executive Officer. However, the fact remains that due to the stay granted by the Hon'ble High Court on some of the scheme area, the overall development of whole of the scheme could not be carried out for years together. The opposite party pleaded that it carried out all the development activities and to prove this fact, it has produced status reports of project Ex.OP-2 (colly.), but the perusal of these reports shows that the entire developments works were not completed 100%. Some works have been completed and remaining are yet to be completed. The opposite party also produced report dated 14.06.2019 Ex.OP-3. First of all, this report is not stamped. Furthermore, the designation of the persons, who signed on this report, has not been disclosed. Still further, it is mentioned therein that possession of plot No.130-C (which is allotted to the complainant) was with the Trust and in front of this plot, stone mettled road is laid and that water and sewerage lines are also laid. Streetlight poles are also installed. However, the words used are that "possession of the plot No.130-C was with the Trust" and, as such, the doubt is raised that the possession was earlier with the Trust and not at present or at the time of preparing the said report. Be that as it may, no Completion Certificate/Occupancy Certificate, as envisaged under Section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") in respect of the Scheme in question has been placed on record by the opposite party and in the absence of the same it cannot be held that the plot is ready for delivery of possession or that all the promised amenities have been provided at the site. The complainant has also produced photographs Ex.C-8 to Ex.C-12; which prove that Consumer Complaint No.598 of 2019 11 there is no development at all at the project site. No plots are demarcated and water is accumulated at many places. Even as per office notings Ex.C-15 (colly.) of the opposite party, in the absence of structure at the spot, the official who accompanied the complainant, could not clarify clearly as to where the plot, in question, falls. The omission on the part of the opposite party, in not developing the Scheme as per their undertaking given in the allotment letter, amounts to unfair trade practice. Thus, it is clear that the development activities have not been completed at the site in all respects.
15. Similar question had arisen before this Commission in Consumer Complaint No.81 of 2013 (Munish Dev Sharma v. Jalandhar Improvement Trust, Jalandhar and another) and Consumer Complaint No.82 of 2013 (Sanjay Gupta Vs. Jalandhar Improvement Trust & Another) both decided on 30.07.2014. Those complaints were filed in respect of the plots in the same Scheme and the facts were similar. The complaints were allowed and against those orders, the opposite parties preferred the appeals F.A. No.1215 of 2014 (Jalandhar Improvement Trust & Another v. Munish Dev Sharma) and F.A. No.1216 of 2014 (Jalandhar Improvement Trust & Another v. Sanjay Gupta) respectively before the Hon'ble National Commission, which were decided on 01.07.2015. The Hon'ble National Commission held as under:-
"26. Thus, it is manifestly clear from the above order that as on 8.3.2011, there was "Status quo regarding possession". However, the appellants despite having full knowledge of the above order of the High Court, issued allotment letters on 26.12.2011 and 23.12.2011, in respect of plots in question. Therefore, above facts Consumer Complaint No.598 of 2019 12 clearly goes on to show, that at the time of issuance of the allotment letters in respect of plots in question, it was well within the knowledge of the Appellant-Trust, that there was an impediment in allotment of the plots in question. In spite thereof, Appellant-Trust had gone ahead and allotted plots in question to the respondents, which it could not have done so. In this manner, appellants have played fraud with the general public and thus collected huge amount of money.
27. The aforesaid act of the appellants, clearly falls within the meaning of "Unfair Trade Practice" as defined under Section 2(1)(r) of the Act, relevant portion of which states;
"(r) "unfair trade practice" means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:
xxxxxxxxxxxxxxxx"
28. Appellants having full knowledge that the scheme in question could not see the light of the day, still promoted the scheme to befool the public. Thus, appellants have adopted "unfair method"
as well as "deceptive practice" in promoting the sale of the plots in question. This act of appellants, is squarely covered within the meaning of "Unfair Trade Practice".
29. Furthermore, appellants after having taken substantial amount from the respondents in the year 2011, are still enjoying their hard earned money for last many years. Now, when appellants are not in a position to allot the plots in a habitable condition to the respondents, then why they are still withholding respondents' money. There is no reasonable and plausible explanation, in this regard from the side of the appellants. We Consumer Complaint No.598 of 2019 13 deplore such "unfair trade practices" being adopted by the Appellant-Trust, which is a Public Body.
30. It would also be pertinent to observe, that appellants have not given any firm date of handing over the possession of plots in question, to the respondents which also is a "Deceptive Practice". The appellants should have given firm date of handing over of possession, at the time of taking booking amount. By not indicating the true picture with regard to their scheme to the respondents, appellants induced them to part with their hard earned money, which also amounts to "unfair trade practice".
31. Thus, appellants by not delivering the physical possession of fully developed plots to the respondents, till date even after having received more than 90% of the price thereof, are not only deficient in rendering service but are also guilty of indulging into "unfair trade practice".
32. Appellants in the present case, "wants to have the cake and eat it too", as admittedly they have received about 90% of the sale price of the plots. The appellants are thus enjoying possession of the plots as well as substantial amount of consideration paid by the respondents. On the other hand, respondents after having paid substantial amount of the sale consideration, are still empty handed.
34. Such type of unscrupulous act on the part of Appellant-Trust should be dealt with heavy hands, who after grabbing the money from the purchasers, enjoy and utilize their money but do not hand over the plots on one pretext or the other. Appellants want the respondents to run from one fora to other, so that appellants can go on enjoying the respondents' money without any hindrance.
35. It is well settled, that no leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, goes on filing meritless appeal in consumer foras. Equity demands that such unscrupulous litigants whose only aim Consumer Complaint No.598 of 2019 14 and object is to deprive the opposite party of the fruits of the decree, must be dealt with heavy hands. Unscrupulous developer like Appellant-Trust, who after taking almost entire cost of the plots, do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of Public Bodies, that this Commission is not helpless in such type of matters."
16. In another case Sangat Singh (supra), the Hon'ble National Commission has upheld the finding recorded by this Commission and dismissed the revision petition filed by Jalandhar Improvement Trust, holding that there was no progress in the construction and the facilities were not complete at the project site. Similar is the ratio of law laid down by the Hon'ble National Commission Raj Kumar Goyal's case (supra). The authorities cited by the learned counsel for the opposite party are distinguishable, being not applicable to the facts and circumstances of the present case.
17. The complainant has already paid the huge amount of ₹16,85,148/-, as per allotment letter Ex.C-2 and receipts, Ex.C-2, Ex.C- 4 to Ex.C-6 towards the sale consideration, but the opposite party failed to perform its part of the contract. Since there was no development at site, so the complainant was justified in withholding payment of further instalments. However, since the opposite party failed to carry out any development work at the site despite lapse of long period from the date of allotment of the plot, in question, so the complainant is entitled to the refund of the amount paid by him towards the price of the plot, along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period it remained Consumer Complaint No.598 of 2019 15 with the opposite party at the rate of 9% per annum from the respective dates of deposit till realization. For the harassment been suffered by him at the hands of the opposite party, he is also entitled to suitable compensation.
18. In view of our above discussion, the complaint is allowed and following directions are issued to the opposite party:
i) refund the entire amount deposited by the complainant i.e. ₹16,85,148/- , along with compensation for causing financial loss and depriving the complainant of the use of the said amount during the period it remained with the opposite party at the rate of 9% per annum from the respective dates of deposit till realization;
and
ii) pay ₹20,000/-, as compensation for the harassment and mental agony suffered by the complainant, including cost of litigation.
19. The compliance of this order shall be made by the opposite party within a period of 30 days of the receipt of certified copy of the order.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (RAJINDER KUMAR GOYAL) MEMBER (MRS. KIRAN SIBAL) MEMBER January 23, 2020.
(Gurmeet S)