State Consumer Disputes Redressal Commission
The Punjab State Agricultural ... vs Shubham Bansal, on 10 October, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1235 of 2010
Date of institution: 16.7.2010
Date of Decision: 10.10.2013
The Punjab State Agricultural Marketing Board (Punjab Mandi Board),
SCO 149-152, Sector 17-C, Chandigarh.
.....Appellant/OP No. 2
Versus
1. Shubham Bansal, minor, aged 14 years, son of Raghunandan
Bansal, aged 46 years, son of Late Sh. Om Parkash Bansal, resident of
Om Steel Niwas, Deon Ghat, Solan (HP) through his next friend and
natural guardian Raghunandan Bansal son of Late Sh. Om Parkash.
.....Respondent No.1/Complainant
2. The Administrator, New Mandi Township, Punjab, SCO 2437-28,
Sector 22-C, Chandigarh.
.....Respondent No.2/OP No.1
Argued By:-
For the appellant : Sh. Amit Arora, Advocate
For respondent No.1 : Sh. Sandeep Khunger, Advocate
For respondent No.2 : Service dispensed with.
2nd Appeal
First Appeal No. 1287 of 2010
Date of institution: 26.7.2010
Shubham Bansal, minor, aged 15 years, son of Raghunandan Bansal,
aged 46 years, son of Late Sh. Om Parkash Bansal, resident of Om Steel
Niwas, Deon Ghat, Solan (HP) through his next friend and natural guardian
Raghunandan Bansal son of Late Sh. Om Parkash.
.....Appellant/Complainant
Versus
1. The Administrator, New Mandi Township, Punjab, SCO 2437-28,
Sector 22-C, Chandigarh.
2. The Punjab State Agricultural Marketing Board (Punjab Mandi
Board), SCO 149-152, Sector 17-C, Chandigarh.
.....Respondents/OPs
Argued By:-
For the appellant : Sh. Sandeep Khunger, Advocate
For respondent No.1 : Sh. Amit Arora, Advocate
For respondent No.2 : Ex.parte
FIRST APPEAL NO. 1235 OF 2010 2
First Appeal against the order dated 31.3.2010
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member Gurcharan Singh Saran, Presiding Judicial Member This judgment will dispose of two appeals i.e. (1) First Appeal No. 1235 of 2010(The Punjab State Agricultural Marketing Board versus Shubham Bansal and another) and (2) First Appeal No. 1287 of 2010(Shubham Bansal versus The Administrator, New Mandi Township & another). The complainant as well as opposite parties have filed these appeals against the impugned order dated 31.3.2010 passed by the District Consumer Disputes Redressal Forum, Ferozepur(in short the "District Forum") vide which complaint No. 562 dated 20.11.2009 filed by Shubham Bansal was partly allowed and the opposite parties were directed to deliver the possession of the plot in question subject to the condition of depositing the entire auction price alongwith interest @ 6% per annum to the opposite party by the complainant. The complainant was directed to pay the balance amount to the Ops within six months. In case the complainant fails to deposit the entire amount within 6 months then the Ops will be entitled to charge penal interest etc.. Opposite party will deliver the possession of the plot within thirty days from the receipt of the payment from the complainant. FIRST APPEAL NO. 1235 OF 2010 3
2. The complaint under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') was filed by the complainant Shubham Bansal through his next friend and natural guardian Raghunandan Bansal alleging that OP No. 1 acquired land in Talwandi Bhai, Tehsil and District Ferozepur and sold different plots in open auction on 7.6.1995. At the time of auction it was announced by OP No. 1 that the possession of the plot will be delivered after issuance of allotment letter alongwith facilities like water, sewerage, lighting, road etc.. On the assurance of OP No. 1, complainant who is the predecessor in interest of Om Parkash give bid of GS-77 on 7.6.1995 for construction of grain shop for earning his livelihood and his bid was accepted and Om Parkash had deposited Rs. 92,750/- being 1/4th of the auction money on 8.6.1995. However, Om Parkash died on 12.10.2002 and during his life he had executed Will in favour of the complainant. The complainant minor is living with his father Raghunandan Bansal, therefore, the complaint has been filed through him, who has no adverse. It is alleged that OP No. 1 issued allotment letter in 1997 alongwith copy to Naib Tehsildar, Colonization, Ferozepur and asked him to deliver the possession to the auctioneers for construction of the plot. He showed his inability as neither roads were constructed as per the site plan approved nor the facilities were provided as mentioned in the advertisement. Om Parkash was required to pay Rs. 2,78,250/- within 30 days from the date of issuance of allotment letter in six half yearly installments alongwith interest @ 12% per annum. However, this amount was not deposited as Ops have failed to provide the basic amenities and also failed to FIRST APPEAL NO. 1235 OF 2010 4 get possession, therefore, Ops are not entitled to the interest. Even the Ops have failed to provide the basic amenities to the complainant after the death of Om Parkash. Now by notification No. 18/165/07-M- 5/7365 the area of Mandi Talwandi Bhai has been transferred to OP No. 2. Neither OP No. 1 nor OP No. 2 have provided the basic amenities to the complainant. Om Parkash was to construct the Grain Shop but the said construction is being delayed for the fault on the part of the Ops, who has failed to demarcate the plot and to put Om Parkash in possession. The complainant has been put to great mental agony due to non-delivery of the possession and the amenities as per the terms and conditions annexed at the site by the OPs, which amounts to deficiency in service. The value of the construction has since been escalated in these days. Accordingly, the complaint has been filed directing the Ops to pay Rs. 3,00,000/- being the difference of cost of construction, Rs. 30,000/- as damages on account of harassment and Rs. 50,000/- as cost of litigation.
3. The complaint was contested by the Ops, who filed written statement taking preliminary objections that the complaint is false, frivolous and vexatious to the knowledge of the complainant; liable to be dismissed; complicated questions of law and facts are involved, therefore, it be relegated to the Civil Court; there is no deficiency on the part of the OPs, therefore, the complaint is not maintainable; the complaint is time barred and that the Hon'ble Forum has no jurisdiction to entertain and try the complaint. On merits, it has been stated that OP No.1 had acquired the land and the same was transferred in favour of OP No. 2. Plots were sold in open FIRST APPEAL NO. 1235 OF 2010 5 auction on 7.6.1995 and the parties were bound by the terms and conditions of the auction. No such assurance as alleged by the complainant was given by the opposite parties. It has been denied that Naib Tehsildar showed his inability to deliver the possession. It has been denied that neither the roads were constructed nor other facilities were provided as alleged in the complaint. However, the complainant was required to pay Rs. 2,78,250/- within 30 days from the date of issuance of allotment letter alongwith interest but the same was not deposited by him. Therefore, there is a fault on the part of the complainant. Accordingly, it has been stated that there is no merit in the complaint and the same be dismissed.
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-1, copy of auction/allotment letter Ex. C-2, terms and conditions of auction Ex. C-3, copy of death certificate Ex. C-4, copy of Will Ex. C-5, copy of notification Ex. C-6, information collected under RTI Ex. C-7. On the other hand, the opposite parties had tendered into evidence affidavit of Daljit Singh, Addl. Director, Punjab Mandi Board, Chandigarh Ex. R-1, letter Ex. R- 2, letter/details of roads construction Ex. R-3, letter regarding water supply Ex. R-4.
6. After going through the allegations in the complaint, reply filed by the opposite parties, evidence and documents brought on the record, the learned District Forum vide impugned order had partly allowed the complaint as stated above.
FIRST APPEAL NO. 1235 OF 2010 6
7. Aggrieved with the order passed by the learned District Forum, the opposite party as well as the complainant have filed these appeals.
8. In the appeal filed by the opposite party, it has been contended by the counsel for the appellant/OP No.2 that the learned District Forum has erred in not appreciating the fact that all basic amenities have already been provided by the appellant at the site and in order to delay the payment of installment, respondent No. 1 had taken the vague plea that he would be able to save themselves from paying the penal interest and that he has not paid the subsequent installments due to the appellant in order to avoid own wrong, he has filed this complaint. According to Section 13 (1) and (2) of the Punjab New Mandi Townships (Development and Regulation) Act, 1960 (for short 'the 1960 Act'), respondent No. 1 is liable to pay penal interest on the amount due as admittedly the bid of the respondent was accepted in the year 1995 and possession of plot was delivered in the year 1997 and the order passed by the learned District Forum is against the provisions of the Act allowing him to pay the balance amount with 6% interest only. The District Forum has also failed to appreciate the fact that non-payment of installment by respondent No. 1 had put the scheme of the appellant in distress.
9. Whereas the complainant in his appeal has contended that Om Parkash original allottee cannot deposit the remaining amount with the opposite party as the opposite party had failed to provide the basic amenities as per the promise made in the advertisement, which compelled the complainant to file the complaint FIRST APPEAL NO. 1235 OF 2010 7 and the order of the District Forum to deposit the amount with 6% interest is wrong. He has referred to the judgment of the Hon'ble U.T. State Commission, Chandigarh "Baldev Singh versus The Administrator, New Mandi Township", IV (2007) CPJ 322. It has been contended that the order passed by the learned District Forum is incorrect. It was wrong to hold that it is a case of contributory negligence. The order of the District Forum to pay lumpsum and not within 6 installments is also incorrect.
10. Firstly taking the appeal filed by the Ops, it is an admitted case that as per the advertisement of OP No. 1, the predecessor in interest of the complainant. Om Parkash, who had given bid for GS- 77 on 7.6.1995, which was accepted for Rs. 3,71,000/- and he had deposited Rs. 92,750/- being auction money and allotment letter was issued in the year 1997. It has been pleaded that there is Will in favour of the complainant executed by Om Parkash, which has not been challenged by the opposite party showing the locus-standi of the complainant for the filing of the present complaint. According to the documents placed on the record Ex. C-2 is the allotment letter, Ex. C-3 is the auction notice, Ex. C-4 death certificate of Omparkash, Ex. C-5 is copy of Registered Will, Ex. C-6 is notification vide which the scheme was transferred to OP No. 2, Ex. C-7 is the letter issued by the Secretary, Market Committee dated 10.2.2009 that the roads of the scheme were under construction and work of sewerage will also be constructed. Ex. R-2 is the letter vide which the drawing of electricity work was sent to Executive Engineer (South), Punjab Mandi Board, Chandigarh, which shows that the facilities, which were FIRST APPEAL NO. 1235 OF 2010 8 promised at the time of auction are still in process and have not been completed. According to the allotment letter, the balance amount of Rs. 2,78,250/- was to be deposited within 30 days or with 12% interest in six monthly installments but those installments have not been paid by the complainant on the plea that the facilities were not provided by the Ops and the possession was not delivered to the complainant. A reference has been made to First Appeal No. 335 of 2009 "Delhi Development Authority versus Jagdish Chander Luthra", decided on 5.7.2012 wherein it has been observed that 'once the appellant has been held guilty for deficiency in service thus, the consumer was not obliged to take possession of the flat, which was not in habitable condition because of the absence of the basic amenities like electricity, water etc.. Under these circumstances, the appellant is not entitled to charge any interest and respondent cannot be penalized for no fault of his own.' Here in this case, according to the allotment letter Ex. C-2, the balance amount was to be deposited within 30 days or with interest in six monthly installments but the same were not paid, which put the progress of the scheme in distress. When the scheme was to be developed with the amount to be deposited by the auction holder, than it is a case of contributory negligence. There is judgment of the Hon'ble National Commission "H.D.F.C. Bank Ltd. Versus Goloke Dutt", 2013(2) CPC 183. In that case the employee of the firm cheated and forged his signatures on the cheque and give it to unknown person, it was observed that there is a contributory negligence on the part of the Bank as well as the complainant. It was observed that there is a deficiency on the part FIRST APPEAL NO. 1235 OF 2010 9 of the Bank for lack and care in dealing, comparing signatures. It is current account with the cheque deposited. It was held that the complainant is entitled to compensation and litigation expenses and not the interest on account of contributory negligence. In case it is a case of contributory negligence, in view of the judgment the complainant was held not entitled to interest. In those circumstances, in case the complainant had not deposited the balance amount without interest or with interest as per the stipulation in the allotment letter, he was also equally negligent as are the Ops, therefore, due to this reason, he was not given time to deposit the balance amount in six installments because already sufficient time has passed and he has been asked to pay the balance amount only with interest @ 6%, which is quite genuine and the Ops were also deficient in their services for not giving the amenities as promised and to deliver the possession and in those circumstances, they were not entitled to penal interest as provided under Section 13 of the 1960 Act. Therefore, we are of the opinion and considered that the order passed by the learned District Forum is quite reasonable, we affirm the same; we do not see any merit in the appeal filed by the appellant/OP No. 2 and the same is hereby dismissed.
11. With regard to the appeal filed by the complainant, he has already been allowed to deposit the balance amount with 6% p.a. interest despite the fact that he was to deposit the same within 30 days or in six monthly installments with 12% interest, which he has not deposited, therefore, he is also contributory deficient in not depositing the installments as promised, which halted the FIRST APPEAL NO. 1235 OF 2010 10 development of the various amenities to be provided to the Auction Holders. So far as the judgment referred by the counsel for the appellant/complainant, it depends upon the terms and conditions executed between the parties in that case, therefore, the complainant/appellant is also contributory negligent in not depositing the due installment within a time; has not been allowed by the learned District Forum not to deposit the amount in six monthly installments and due to the lapse on the part of the Ops in not providing the possession, allowed only with 6% per annum interest, which is quite reasonable order. Therefore, we also do not consider any merit in the appeal filed by the complainant and the same is hereby dismissed with no order as to costs.
12. The arguments in these appeals were heard on 1.10.2013 and the orders were reserved. Now the orders be communicated to the parties as per rules.
13. The appeals 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 October 10, 2013. (Jasbir Singh Gill) as Member