State Consumer Disputes Redressal Commission
Lalit Kumar Sethi vs Improvement Trust Jalandhar on 12 March, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.796 of 2017
Date of institution : 11.09.2017
Date of decision : 12.03.2018
Lalit Kumar Sethi s/o Late Shri Suraj Prakash Sethi, R/o H.No.29,
Street No.9, Jalandhar Cantt, Jalandhar.
.......Complainant
Versus
Jalandhar Improvement Trust through its Chairman/Executive
Officer.
........Opposite Party
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member
Present:-
For the complainant : Shri J.S. Ghuman, Advocate. For the opposite party : Shri G.C. Garg, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainant, Lalit Kumar Sethi, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "C.P. Act") for the issuance of following directions to the opposite party:-
i) to refund the amount of ₹42,61,575/-, along with interest at the rate of 18% per annum from the respective dates of deposit till date of actual realization as per the calculation sheet attached with the complaint;
OR Consumer Complaint No.796 of 2017 2 In the alternative to give possession of plot No.156-D to the complainant;
ii) to pay ₹10,00,000/-, as compensation for mental tension, harassment and financial loss; and
iii) to pay ₹55,000/- towards cost of litigation. Facts of the complaint:
2. Brief facts, as stated in the complaint, are that the complainant applied for a plot measuring 250 square yards in Surya Enclave Extension, Jalandhar Improvement Trust, Jalandhar at the rate of ₹17,000/- per square yard for a total sale consideration of ₹42,50,000/- and the receipt of application form along with the earnest money of ₹4,25,000/- was acknowledged by the opposite party, vide receipt dated 7.9.2011. Plot No.156-D was allotted to the complainant, vide allotment letter dated 23.12.2011. In the meantime, the opposite party gave permission to mortgage the said plot with the H.D.F.C. Bank, Jalandhar, vide letter dated 17.1.2012.
Thereafter as per the terms of the allotment letter the rest of the amount was paid by the complainant by demand drafts dated 19.1.2012 for ₹4,36,575/- and 20.1.2012 for ₹34,00,000/-. With the last payment on 20.1.2012 the complainant made the total payment amounting to ₹42,61,575/- for the said plot thereby fulfilling his part of the contract. It is averred that as per clause 7 of the allotment letter the opposite party was to complete the development works of the Scheme advertised within two and a half years from the date of allotment and hand over the possession of the said plot to the complainant. But alas it has been almost 6 years since the issuance Consumer Complaint No.796 of 2017 3 of the allotment letter and still the possession of the said plot has not been given to him. The complainant immediately approached the opposite party and requested it to hand over the possession of the said plot to him but it paid no heed to his representations and offered no cogent explanation for the delay. The complainant decided to purchase the said plot with his hard earned money for himself and his family but due to inability of the opposite party to provide the said plot in the proposed time period, the aim of the complainant of building a dream home could not succeed. The complainant approached the opposite party time and again regarding the above mentioned delay and requested it to refund his deposited amount along with interest but to no avail. The complainant finally having left with no other option sent a legal notice through registered post to the opposite party on 1.8.2017 but no response has been received from the opposite party. Alleging deficiency in service and adoption of unfair trade practice on the part of the opposite party, the present complaint was filed for issuance of above mentioned directions to it. Defence of the Opposite Party:
3. The complaint was contested by the opposite party, who filed written reply in which it admitted that the complainant had applied for 250 square yard plot and he was allotted one such plot, vide allotment letter dated 23.12.2011 and that 10% of the earnest money was deposited by him. It also admitted that the complainant has already paid ₹42,61,575/-, against the total price of the plot and that the possession thereof was not delivered to him. It is averred that legal notice dated 1.8.2017 was served by the complainant on the Consumer Complaint No.796 of 2017 4 opposite party and, as such, as per its own admission, there was no communication from the complainant for the period 20.1.2012 till the service of the legal notice. The instant complaint has been filed on 24.8.2017 with an unexplained time gap of 5 years and 7 months, which is clearly in excess of the statutory period of 2 years prescribed under the C.P. Act. Thus, the complaint is clearly debarred by limitation. It is further averred that Improvement Trust, Jalandhar is a responsible organization and inclined to sympathetically consider the demand of the complainant/allottee for giving the possession of the plot or allotting an alternative plot in place of the plot in question but before the demand of the complainant could be considered and processed, he without waiting for any response from the opposite party, rushed to this Commission, vide instant complaint dated 24.8.2017. The handing over of the physical possession of Plot No.156-D to the complainant got delayed for reasons beyond the control of the opposite party as it lies in Khasra No.9690 and 9691 and possession of the area measuring 5 Kanal 11 Marlas from Khasra No.9690 and an area of 5 Kanal 8 Marla from Khasra No.9691 was handed over by the LAC Branch to Improvement Trust Jalandhar but Arjun Singh and others had got a stay order in respect of these joint accounts from the Hon'ble Punjab and Haryana High Court. Despite the best efforts of the opposite party, the plot in question could not be given to the complainant. However, Plot No.156-D is lying vacant and can be considered for handing over the possession to the complainant.
Alternatively allotment of any other suitable plot can also be Consumer Complaint No.796 of 2017 5 considered. There are good chances of settlement if both the parties are directed to sit down and resolve the matter to their mutual satisfaction. Denying all other allegations made in the complaint a prayer for dismissal of the complaint was made. Evidence of the Parties:
4. To succeed in the complaint, the complainant proved on record his affidavit Ex.C-A and documents Ex.C1 to Ex.C3, Ex.C3A, Ex.C4 to Ex.C7. On the other hand, the opposite party proved on record affidavit of its Executive Officer Rajesh Chaudhary as Ex.OP-A.
5. We have carefully gone through the averments of both the sides, the evidence produced by them in support of their respective averments and have also heard learned counsel on their behalf.
Contentions of the Parties:
6. It has been submitted by the learned counsel for the complainant that the opposite party adopted unfair trade practice by preparing the 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 dispute already going on between it and the land owners regarding 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. As per the allotment letter, the agreement of sale was to be executed between the parties and the possession of the plot was to be delivered to the complainant within 30 days of the execution of that agreement. The agreement was executed between the parties but the possession of the plot was not delivered to the complainant nor the opposite party Consumer Complaint No.796 of 2017 6 was in a position to deliver the same. After the allotment of the plot, the complainant became the 'consumer' of the opposite party and the non-delivery of possession of the plot amounts to deficiency in service on the part of the opposite party. On account of that deficiency in service 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. In all these circumstances the complainant is not only entitled to the refund of the price of the plot paid by him, along with interest as claimed in the complaint, but is also entitled to compensation and the litigation costs, as prayed therein.
7. On the other hand, it has been submitted by the learned counsel for the opposite party that the complainant failed to comply with the conditions, as mentioned in the allotment letter, Ex.C-2 and on account thereof, the possession of the plot was not delivered to him. He never got Agreement executed within the period of 30 days of issuance of the allotment letter and never came forward to take possession of the plot in dispute. The plot in question could not be given to the complainant in view of the stay granted by Hon'ble Punjab and Haryana High Court in CWP No.3559 of 2011 and other CWPs, which have now been dismissed, vide order dated 22.12.2015 and SLP has already been dismissed. Plot No.156D can be considered for handing over its possession to the complainant or alternatively allotment of any other suitable plot can also be considered. The opposite party has already carried out development work in the entire scheme area by providing all the basic amenities and has spent a lot of finances for the development works. On the Consumer Complaint No.796 of 2017 7 dismissal of the writ petitions the possession of the remaining land has also been obtained by the Trust and the development works in the entire area have been started by the Trust which is in full swing.
In all these circumstances, the complainant cannot ask for the refund of his money nor he is entitled to any such compensation. Consideration of Contentions:
8. We have given our thoughtful consideration to the arguments raised by the learned counsel for both the sides.
9. At the outset it is pertinent to mention that identical matters have already been decided by this Commission in the following cases:
i) Consumer Complaint No.88 of 2015 (Archit Gupta v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
ii) Consumer Complaint No.155 of 2014 (Mrs. Pooja Garg v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
iii) Consumer Complaint No.163 of 2014 (Ravinder Kumar v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
iv) Consumer Complaint No.2 of 2015 (Sukhdev Singh Sehgal v.
Jalandhar Improvement Trust) decided on 7.3.2017;
v) Consumer Complaint No.56 of 2015 (Col. RS Gotra (Retd.) v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
Consumer Complaint No.796 of 2017 8
vi) Consumer Complaint No.80 of 2015 (Harbhajan Singh v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
vii) Consumer Complaint No.86 of 2015 (Darshan Lal v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
viii) Consumer Complaint No.87 of 2015 (Mintu Sood v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
ix) Consumer Complaint No.89 of 2015 (Rajesh Verma v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
x) Consumer Complaint No.154 of 2015 (Sanjiv Kumar v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
xi) Consumer Complaint No.177 of 2015 (Bhim Singh vs. Jalandhar Improvement Trust) decided on 7.3.2017;
xii) Consumer Complaint No.185 of 2015 (Bharat Bhushan Bhutani vs. Jalandhar Improvement Trust and another) decided on 7.3.2017;
xiii) Consumer Complaint No.186 of 2015 (Rajinder Kumar Godara v. Jalandhar Improvement Trust and another) decided on 7.3.2017;
xiv) Consumer Complaint No.187 of 2015 (Surender Lal Yadav vs. Jalandhar Improvement Trust and another) decided on 7.3.2017;
Consumer Complaint No.796 of 2017 9
xv) Consumer Complaint No.190 of 2015 (Jatinder Pal Singh v.
v. Jalandhar Improvement Trust and another) decided on 7.3.2017;
xvi) Consumer Complaint No.205 of 2015 (Harbans Singh v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
xvii) Consumer Complaint No.206 of 2015 (Tarsem Singh v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
xviii) Consumer Complaint No.221 of 2015 (Raj Kumar Setia v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
xix) Consumer Complaint No.222 of 2015 (Harmanjit Singh v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
xx) Consumer Complaint No.231 of 2015 (Navneet Goyal v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
xxi) Consumer Complaint No.241 of 2015 (Alka Jindal v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
xxii) Consumer Complaint No.242 of 2015 (Harpal Singh Arora v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
Consumer Complaint No.796 of 2017 10xxiii) Consumer Complaint No.243 of 2015 (Parampal Singh v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
xxiv) Consumer Complaint No.255 of 2015 (Jatinder Singh v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
xxv) Consumer Complaint No.269 of 2015 (Kusam Kumar v.
Jalandhar Improvement Trust and another) decided on 7.3.2017;
xxvi) Consumer Complaint No.334 of 2015 (Anil Kumar Chowdhary v. Jalandhar Improvement Trust and another) decided on 7.3.2017.
xxvii) Consumer Complaint No.533 of 2017 (Satish Kumar v.
Jalandhar Improvement Trust) decided on 5.12.2017; xxviii) Consumer Complaint No.614 of 2017 (Amit Singh Sindhu v.
Jalandhar Improvement Trust) decided on 5.12.2017; xxix) Consumer Complaint No.615 of 2017 (Gayatri Devi v.
Jalandhar Improvement Trust) decided on 5.12.2017; xxx) Consumer Complaint No.616 of 2017 (Sanjay Singhal v.
Jalandhar Improvement Trust) decided on 5.12.2017; and xxxi) Consumer Complaint No.617 of 2017 (Joginder Singh v.
Jalandhar Improvement Trust) decided on 5.12.2017.
10. The matter in the present complaint is squarely covered by the orders passed in above said cases, so we intend to decide the present complaint in view of orders passed in above said cases. Consumer Complaint No.796 of 2017 11
11. Admittedly, the plot, in dispute, was allotted to the complainant, vide allotment letter dated 23.12.2011, Ex.C-2. It is also an admitted fact that towards the total price of the plot, so mentioned in the allotment letter, ₹42,61,575/- has already been deposited by him. It is also admitted that the possession of the plot has not been delivered to the complainant nor the opposite party was in a position to deliver the same. As per condition No.5 of allotment letter, the complainant was to attend the office of the Chairman of the Improvement Trust within 30 days and was to take with him two witnesses and stamp paper of ₹500/- for getting the Agreement executed. It is not the case of the complainant that he complied with that condition. However, from the evidence produced on the record by him, it stands proved that the complainant has paid the substantial amount towards the price of the plot in question. If the complainant had not himself appeared in the office to get the Agreement executed, the opposite party could have invoked condition No.6, vide which it was authorized to cancel the allotment and to forfeit the amount already deposited by the complainant. It never invoked that clause and continued to receive the instalments from the complainant. In these circumstances, it does not lie in the mouth of the opposite party to say that the complainant never became entitled to the possession of the plot on account of the non- execution of the Agreement.
12. It is very much clear from the terms and conditions of the allotment letter that all the development facilities were to be provided within two and a half years from the date of allotment letter by the Consumer Complaint No.796 of 2017 12 opposite party. The fact that there was status-quo order regarding the land, which was issued by the Hon'ble High Court in the writ petition filed by the land owners has also been admitted by the opposite party in its reply and in the affidavit of its Executive Officer Ex.OP-A. There was status-quo with regard to the land of the scheme area and as a consequence thereof overall development of the project area, including various amenities, could not be carried out in the time bound manner as stipulated in the allotment letter. 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.), 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 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 Consumer Complaint No.796 of 2017 13 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, amounts to adoption of unfair trade practice.
13. It was the possession of the developed plot, which was to be given to the complainant. 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 Ex.C-A 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 affidavit of Rajesh Chaudhary, Executive Officer, Ex.OP/A in which he deposed that despite the best efforts of the opposite party, the plot in question could not be given to the complainant in view of the stay granted by the Hon'ble Punjab and Haryana High Court. Now, CWP No.3559 of 2011 and other CWPs have been dismissed by the Hon'ble High Court, vide orders dated 22.12.2015 and Plot No.156-D can be considered for handing over its possession to the complainant or alternatively allotment of any other suitable plot can also be considered. In the entire affidavit the Executive Officer of the opposite party has nowhere stated about the status of the development at the site nor Consumer Complaint No.796 of 2017 14 any document has been placed on record in respect thereof. Therefore, it cannot be concluded in the absence of any evidence that the development was completed by the opposite party, as required by the letter of allotment. The omission on the part of the opposite party in developing the Scheme as per its undertaking given in the allotment letter also amounts to unfair trade practice. The complainant cannot be made to wait indefinitely for allotment of the plot. From the above discussion, it is very much clear that no development has been made at the spot and the opposite party is not in a position to deliver possession of fully developed plot to the complainant and that it adopted unfair trade practice.
14. 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:- Consumer Complaint No.796 of 2017 15
"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 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".
Consumer Complaint No.796 of 2017 16
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 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. Consumer Complaint No.796 of 2017 17
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 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."
When such is the position, we conclude that the complainant on account of the adoption of unfair trade practice by the opposite party is entitled to the refund of the amount paid by him towards the price of the plot, along with interest and for the harassment having been suffered by him at the hands of the opposite party is also entitled to compensation.
15. Accordingly this complaint is allowed and the following directions are issued to the opposite party:- Consumer Complaint No.796 of 2017 18
i) to refund the sum of ₹42,61,575/- to the complainant, along with interest at the rate of 9% per annum from the date of filing of the complaint till the date of payment;
ii) to pay ₹1,00,000/-, as compensation; and
iii) to pay ₹20,000/-, as costs, out of which ₹10,000/- shall be deposited by the opposite party in the 'Consumer Legal Aid Account' of this Commission and the remaining ₹10,000/- shall be paid to the complainant.
16. The compliance of this order shall be made by the opposite party within one month from the date of receipt of the certified copy of this order.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER March 12, 2018 Bansal