The applicant filed an application for the delay of condonation due to the technical error by the bank. Facts of the case revolves with the possession. After listening to the both sides of the court held that the contention of the opposite party is not applicable and the complainant is entitled to the refund policy.
FACTS OF THE CASE:
This application has been filed by the appellants/opposite parties seeking condonation of delay of 32 days in filing the appeal, on the grounds that the certified copy of the impugned order was received by them on 18.09.2018. The opposite parties opened a scheme on 21.10.2011 for allotment of residential plots of different sizes in BDA Enclave. The complainant, after purchasing the Brochure for 500/- from the opposite parties, applied for allotment of a residential plot measuring 400 sq.yds. in the said scheme, after taking loan of 5,20,000/- from Oriental Bank of Commerce, Bathinda.
Also Read- Reliant Infrastructure Private Ltd Consumer Complaint
The opposite parties failed to hold draw of lots on the date fixed, which was held after a delay of more than one year i.e. on 22.03.2013; as a result of which the complainant was forced to pay additional interest approximately to the tune of 1,25,000/- to the said Bank from 30.11.2011 to 24.05.2013. Later on, the complainant deposited full and final loan amount with the Bank, in order to avoid penalty. He was declared successful in the draw of lots for allotment of a plot of 400 sq.yds. However, the opposite parties failed to issue any Letter of Intent (LoI) in his favour despite lapse of more than 4 and half years. They also did not demand any further amount from the complainant, whereas he was always ready and willing to pay the balance 15% of the allotment price, as 10% of the allotment price was already lying deposited with the opposite parties.
The First Appeal of 2018 complainant approached the opposite parties several times with a request either to issue the LoI/allotment letter or to deliver physical possession of the plot or in the alternative to refund the amount deposited by him, along with interest at the rate of 18% per annum, but without any result. However, they offered to refund the amount of 5,20,000/- with interest only at the rate of 5.5% per annum, although the complainant had been paying interest to the Bank approximately at the rate of 14% per annum.
Also Read- Bhatinda Development Authority vs Gursimran Singh
ARGUMENTS ADVANCED
COMPLAINANT’S ARGUMENTS
Learned counsel for the appellants has vehemently contended that the District Forum passed the order, without properly appreciating the real controversy involved in the matter as well as without going through the evidence led by the opposite parties. The opposite parties were directed not to create third party rights in the said land, as a result of which the draw of lots could not be held on the date fixed in the Brochure and allotment could not be made to various applicants, including the complainant.
It has been further contended that as per Clause 3 under head Pricing and Earnest Money to be paid with the Application of the Brochure, interest at the rate of 5.5% for the period the earnest money retained by BDA beyond 180 days after the last date for application, was payable to the applicants, including to those who opt to retain in the waiting list. However, the District Forum, by wrongly relying upon Clause 2 under head Ownership and Possession, erred in awarding interest at the rate of 8%, in contravention of above said Clause.
Also Read- STATE COMMISSION PUNJAB CONSUMER APPEAL- GULMOHAR VALLEY
OPPOSITE PARTIE’S ARGUMENTS
According to the learned counsel for the opposite party, there was no deficiency in service on the part of the opposite parties, as they were handicapped in conducting the draw of lots and issuing LoI or allotment letter to the complainant, due to pending litigation before the Hon’ble Supreme Court and High Court. It was further contended that the complainant did not fall within the definition of consumer, as defined in the Act, as there is no deficiency in service on the part of the opposite parties, because the project remained halted on account of litigation pending in the Hon’ble Supreme Court and Hon’ble High Court. The opposite parties also moved an application for revocation of status quo order passed by the Hon’ble Supreme Court, wherein following order was passed: Looking to the facts and features of the case, we grant permission to respondents No.2 and 3 to complete all other formalities and development activities on the area, which is subject matter of challenge in this petition and the connected petitions but no third party right would be created unless permission is sought in this regard from this court.
Also Read- Bathinda Development Authority vs Gurdas Singh
FINDINGS OF THE COURT
As per Clause-2 under head Ownership and Possession of Brochure, possession of the plot was to be delivered after completion of development works at site in a period of 30 months from the date of issuance of LoI. Since the opposite parties are not in a position to issue the LoI and allotment letter to the complainant, so he is well within his right to withdraw from the Scheme, as per above said Clause-2 and, as such, he is entitled to refund of the amount deposited by him, along with interest, as per above said Clause-2. The opposite parties are not entitled to take shelter under Clause-3 under head Pricing and Earnest Money to be paid with the Application, on account of their inability to deliver possession of the plot to the complainant. The authority relied upon by the learned counsel for the opposite parties is not applicable, as the complainant has sought alternative relief and on account of failure of the opposite parties to issue LoI and allotment letter of specific plot, the opposite parties are liable to refund the amount deposited by him, along with interest at the rate of 8%, as per Clause-2, as discussed above.
CONCLUSION
The complainant is entitled to the refund of the amount deposited by him, along with interest, on account of failure of the opposite parties to issue LoI or allotment letter as well as to deliver possession of the plot. The District Forum has passed the impugned order, after carefully going through the controversy involved in this case and there is no ground to interfere with the same. We have also dismissed the application filed by the appellants for condonation of delay in filing the appeal. There is also no good ground on merits also. Accordingly, the appeal is dismissed being barred by limitation as well as on merits in limine and the impugned order stands upheld.
Also Read- Sanjeev Garg v. Bathinda Development Authority
SIMILAR JUDGEMENT
Similar issue, pertaining to the identical scheme of the opposite parties, also arose before this Commission in Punjab Urban Planning and Development Authority v. Darshana Devi , which was dismissed, vide order dated 21.11.2016, whereby the order of the District Forum, allowing refund of entire amount deposited by the complainant, along with interest, was upheld. Against that order, the opposite party filed Revision Petition before the Honble National Commission; which was also dismissed, vide order dated 28.03.2017. The matter did not end there and the opposite party approached the Honble Supreme Court against the said order passed by the Honble National Commission, by way of Special Leave to Appeal.
The said Special Leave to Appeal filed by the opposite party was tagged with Special Leave to Appeal, which was filed against the above said order dated 28.03.2017 passed by the Honble National Commission and both those Special Leave to Appeals were dismissed as withdrawn, with liberty to file review petition, as per order dated 10.07.2017. Thereafter, the Review Petition No.148 of 2017 was filed by the opposite party, which was also dismissed by the Honble National Commission, vide order dated 17.08.2017.
Also Read- GOVIND RAM Vs. BHATINDA DEVELOPMENT AUTHORITY
For case specific advice, please connect with Top Best Expert Legal Consultants Attorneys in Real Estate/Property Estate/Consumer Court and Consumer Protection Dispute/ Consumer Grievances and Complaints/RERA Lawyers Advocates in Chandigarh Panchkula Mohali Kharar Derabassi Zirakpur etc.
More on 99888-17966.
