State Consumer Disputes Redressal Commission
Union Bank Of India vs Smt.Anita Gupta on 28 September, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA PANCHKULA First Appeal No.783/2003 & 1310/2003 Date of Institution: 01.05.2003/25.06.2003 Date of Decision: 28.09.2010 APPEAL NO.783 of 2003 Union Bank of India Subhash Mandi Branch, Kurukshetra through its Branch Manager. .Appellant-Opp. Party No.3 Versus 1. Smt.Anita Gupta w/o Sh.Kapil Raj Gupta R/o House No.74/8, Partap Colony, Railway Road, Kurukshetra. (Complainant) 2. The Haryana Urban Development Authority through its Chief Administrator, C-3, Sector-6, Panchkula. (OP-1) 3. The Assistant Estate Officer, HUDA, Sector-13, Urban Estate, Kurukshetra. (OP-2) ..Respondents-Opp. Parties APPEAL NO.1310 of 2003 1. The Haryana Urban Development Authority, through Estate Officer, Kurukshetra. 2. The Chief Administrator, Haryana Urban Development Authority, Sector-6, Panchkula. Appellants-Opp. Parties No.1 & 2 Versus Smt.Anita Gupta w/o Sh.Kapil Raj Gupta R/o House No.74/8, Partap Colony, Railway Road, Kurukshetra. .Respondent-Complainant BEFORE: Honble Mr.Justice R.S.Madan, President. Dr.Rekha Sharma, Member. Sh.Diwan Singh Chauhan, Member. For the Parties: Mr.Varun Chawla Advocate for Union Bank (Opposite party No.3). Ms.Raminder Gadhoke Advocate for HUDA(opposite party No.1&2). Mr.V.B.Aggarwal Advocate for the Complainant Anita Gupta. ORDER
JUSTICE R.S.MADAN PRESIDENT:
Vide this order we shall dispose of above mentioned two appeals bearing No.783 of 2003 and No.1310 of 2003 as both have arisen out of the order dated 24.03.2003 passed in complaint No.388 of 2000 by District Consumer Disputes Redressal Forum, Kurukshetra whereby complaint filed by Smt.Anita Gupta was accepted by granting following relief:-
.We therefore, direct the OP-1& 2 to pay a sum of Rs.5,000/- to the complainant towards litigation expenses. We further direct the OP-3 to submit the application of complainant along with amount of Rs.24,150/- with OP-1&2 and pay the interest on the said amount @ 15% per annum from the date of deposit till payment to the complainant. The whole dispute arise due to the deficiency in service on the part of OP-3, accordingly the OP-3 is also directed to pay a sum of Rs.10,000/- to complainant towards compensation for harassment and increase in cost of construction.
The brief facts of the present case not disputed between the parties are that respondent No.1(complainant) had applied for allotment of an industrial plot in Sector-2, HUDA, Kurukshetra vide her application No.0190 dated 30.3.2000 along with draft of Rs.24,150/- which was deposited by respondent No.1(complainant) with the appellant-opposite party No.3 and the said application was to be forwarded to the opposite parties No.1 & 2. But due to the mistake & negligence of the officials of the Bank (opposite party No.3) the application of the complainant was not sent to the office of opposite parties No.1 & 2 and for that reason she was not considered for allotment of an industrial plot by the opposite parties No.1 & 2. The grievance of the complainant before the District Forum was that due to the deficiency of service of the opposite parties, she suffered huge financial loss as she could not set-up her industrial unit. Thus, the complainant sought compensation from the opposite parties.
Upon notice the claim of the complainant was resisted by the opposite parties No.1 & 2 by taking the plea that no application was received by them from the opposite party No.3. The opposite party No.3 though denied any kind of deficiency but did not disclose the dispatch number of the application submitted by the complainant.
On appraisal of the pleadings of the parties and evidence adduced on record, the District Forum accepted the complaint of the complainant and granted relief as noticed above.
Aggrieved against the order of the District Forum appellant-opposite party No.3 has filed Appeal No.783 of 2003 whereas HUDA-opposite parties No.1 & 2 have filed Appeal No.1310 of 2003 for setting aside the impugned order.
We have heard learned counsel for the parties and perused the case file.
The controversy in this appeal is that the opposite party No.3 had not sent the application of the complainant to the opposite parties No.1 & 2 due to which the name of the complainant was not considered for allotment of industrial plot. From the documents produced on record, it is established that the application of the complainant was not received by the opposite parties No.1 & 2. In other words the opposite party No.3 is deficient for not sending the application of the complainant. The opposite party No.3 has miserably failed to explain about this default on its part. No dispatch number etc. has been disclosed in its reply to the legal notice sent by the complainant through registered AD dated 11.10.2000. The opposite party No.3 sent its reply dated 19.10.2000 in a vague manner without explaining about the fate of the application submitted by the complainant. It is also established on record that the complainant had got prepared a draft of Rs.24150/- from the appellant-opposite party No.3 which was attached with her application.
In view of the facts and circumstances of the case supported with documentary evidence, it is proved on record that the appellant-opposite party No.3 is deficient in service and thus liable to pay compensation to the respondent-complainant for depriving her for allotment of an industrial plot. However, at the same time we find that the direction issued by the District Forum to appellants-opposite parties No.1 & 2 to pay a sum of Rs.5000/- as litigation expenses as well as direction issued to appellant-opposite party No.3 to submit the application of complainant along with amount of Rs.24150/- to the opposite parties No.1 & 2, is not sustainable in the eyes of law because after the date of expiry for receiving the application for allotment of the plot, the opposite parties No.1 & 2 cannot be forced to entertain the application. More so the complainant cannot be termed as a Consumer of the opposite parties No.1 & 2 merely by submitting application which is even had not been received in the office of opposite parties No.1 & 2.
Reference may be made to case law cited as Punjab Urban Planning and Development Authority and another versus Krishan Pal Chander, 2010 CTJ 415 (CP)(N.C.) wherein the Honble National Commission has held that:-
The filing of application for allotment of a flat/plot grants the proposed allottee only a right to be considered for allotment. He becomes a consumer under the Consumer Protection Act only after he is allotted a flat/plot.
The Honble State Consumer Disputes Redressal Commission Orissa in case cited as Rourkela Development Authority versus Rourkela Consumers Front, 2009 CTJ 1166 (CP) (SCDRC) has held that:-
A sum of Rs.5,000/- deposited by one Sarat Chandra Padhee with the appellant for allotment of a MIG plot to him Neither any plot allotted nor the deposited amount refunded Complaint allowed by the District Forum Refund of the deposited amount of Rs.5,000/- with 15% interest ordered Appeal Only by depositing the earnest money for allotment of a plot of land or house would not make a person consumer as no service is hired thereby as in the present case Therefore, there could be no question of any deficiency in service Complaint itself being not maintainable before the Forum below, its direction for payment of 18% interest to the complainant set aside However, he would be entitled to get back the deposited amount.
In para No.6 of the above cited judgment the Honble State Commission, Orissa, Cuttack, held that:-
6. Law is well settled that only submitting the application by depositing earnest money for allotment of plot of land or house does not make a person consumer as thereby he does not hire service and in the present case, by depositing the earnest money in pursuance of an advertisement and filing application, the complainant cannot be a consumer. Here definitely no service is involved and no service is also hired and as such there cannot be question of deficiency in service and for that, the complaint itself was not maintainable before the District Forum and for less the compensation and cost as claimed.
The facts of the present case are fully attracted to the above cited cases (supra).
Taking into consideration the facts and circumstances of the case and the case law cited (supra) we are of the view that the opposite parties No.1 & 2 cannot be held liable to pay compensation to the complainant. It is the opposite party No.3 who is negligent and deficient in service by not forwarding the application of the complainant along with draft of Rs.24150/- to the opposite parties No.1 & 2. The District Consumer Forum has not considered all these aspects and committed great error while accepting the complaint and issuing directions to the opposite parties as noticed above. In our view the interest of justice would be met suitably if the complainant is granted interest n the draft amount of Rs.24150/- @ 9% p.a. as ordered by the District Forum and we order accordingly.
As a sequel to our above discussion, the appeal No.1310 of 2003 filed by the HUDA-opposite parties No.1 & 2 is accepted and the directions issued to them by the District Forum is set aside and the complaint qua HUDA-opposite parties No.1 & 2 is dismissed. However, appeal No.783 of 2003 filed by appellant-opposite party No.3 is partly accepted with the modification in the impugned order as indicated above. Original judgment is attached with appeal No.783 of 2003 certified copy of the same be attached with appeal No.1310 of 2003.
28h Sep 2010 Justice R.S.Madan President Dr.Rekha Sharma, Member Diwan Singh Chauhan, Member.