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Madan Mohan Kapoor v/s Punjab Urban Development Authority Chandigarh through its Chief Administrator & Another

Company & Directors' Information:- MADAN DEVELOPMENT PVT LTD [Strike Off] CIN = U45203WB1979PTC032311

    First Appeal No. 747 of 2008

    Decided On, 16 January 2013

    At, Punjab State Consumer Disputes Redressal Commission Chandigarh

    By, MEMBER

    For the Appellant: B.S. Walia, Advocate. For the Respondents: Balwinder Singh, Advocate.

Judgment Text

Inderjit Kaushik, Presiding Member

1. Sh. Madan Mohan Kapoor, appellant/complainant (In short 'the appellant') has filed this appeal against the order dated 05.06.2008 passed by the learned District Consumer Disputes Redressal Forum, Ludhiana (in short 'the District Forum').

2. Facts in brief are that the appellant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, 'the Act') against the respondents, asserting that he applied for allotment of a plot and deposited the amount of Rs.4,000/-, but neither the plot was allotted nor the amount was returned and the same amounts to deficiency in service. He applied for allotment of plot measuring 200 sq.yds. situated in Jamalpur Colony, vide application no.2503 dated 08.07.1981 according to the advertisement on ‘first come and first basis’ and deposited Rs.1700/- as earnest money vide bank draft no.067343 dated 08.07.1981 and Rs.2300/- vide bank draft no.223534/35 dated 09.02.1984.

3. After depositing the earnest money and submitting all the documents, the appellant approached the respondents for allotment of the plot as he was ready and willing to perform his part of the contract, but the same was not allotted and no information was given, despite the appellant having written a number of letters through registered post. The appellant demanded the refund of the amount along with interest @ 18% p.a., but the respondents flatly refused. The appellant is visiting the office of the respondents since 08.07.1981 and he was harassed physically and mentally. The loss suffered by the appellant is unaccountable, but in the present complaint the appellant is demanding Rs.90,000/- as damages on account of no allotment of the plot and refund of amount of Rs.4,000/- along with interest @ 18% p.a. from 08.07.1981 till date.

4. It was prayed that the respondents may be directed to refund the amount of Rs.4,000/- along with interest @ 18% p.a. from 08.07.1981 till date and Rs.90,000/- as compensation on account of deficiency in service with interest @ 18% p.a.

5. In the written reply filed on behalf of the respondents, it was submitted that the name of the appellant was put in the draw of lots, but he was not declared successful. The deposit of Rs.4,000/- was admitted. Merely filing the application for allotment does not give any right to the appellant to get the plot allotted. There was no contract between the parties for allotment of plot and it could be allotted only if he was declared successful in the draw. The amount of Rs.4,000/- was sent to the appellant by way of cheque no.1679288 dated 18.08.1997, but it was received back on 18.11.1997 undelivered with the report of the postman ‘left without address’. The appellant is not entitled to claim any interest. In fact, the amount of Rs.2300/- was deposited by him on 09.02.1984 and he cannot ask for the refund of the same from the year 1981 itself. There is no deficiency in service on the part of the respondents. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.

6. Parties led evidence in support of their respective contentions by way of affidavits and documents.

7. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the cheque dated 18.09.1997 sent under letter Ex.R-3 dated 05.11.1997 was received back undelivered, thereafter the appellant issued notices, but no attempt was made to redress the grievance of the appellant to refund the earnest money which amounts to deficiency in service. The complaint was allowed and the respondents were directed to refund Rs.4,000/- as earnest money along with interest @ 9% p.a. from 06.11.1997 till making of the payment.

8. Dissatisfied with the impugned order dated 05.06.2008, the appellant has come up in appeal.

9. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.

10. The only grouse of the appellant is that the amount was deposited in the year 1981 and if the plot was not allotted, then the refund of the amount should have been made within a reasonable time and the District Forum has awarded the interest only w.e.f. 06.11.1997, whereas the amount was utilized by the respondents from the year 1981 onwards and the impugned order is liable to be modified. It was further contended that the appellant vide letter Ex.C-5 dated 19.05.1986 intimated the respondents regarding the change of address and mentioned the new address, but still the cheque was sent on the old address due to the negligence of the officials of the respondents.

11. On the other hand, learned counsel for the respondents argued that the amount of Rs.4,000/- was not paid in the year 1981, but it was paid in two installments and the entire amount cannot be demanded. A sum of Rs.1700/- was deposited on 08.07.1981 and Rs.2300/- was paid on 09.02.1984. The allotment of the plot was subject to the draw, but the appellant was not successful and the earnest money was refunded but the cheque was received back undelivered, as the appellant was not residing at the given address.

12. We have considered the respective submissions of the parties and have carefully examined the entire record placed on the file.

13. We are of the opinion that the controversy is very small in this case. The appellant deposited a sum of Rs.1700/- on 08.07.1981 and then a sum of Rs.2300/- on 09.02.1984 and in all, he deposited Rs.4,000/- as earnest money before the draw of lots. Both the parties have failed to bring on record the date of draw of the plots and after the date of draw of the plots, the respondents were supposed to refund the earnest money of Rs.4,000/- to the appellant within a reasonable time of three months, but that has not been done. The officials of the respondents were also negligent for sending the cheque on the previous address of the appellant, whereas the appellant way back in the year 1986 had intimated the respondents about the change of address and has clearly mentioned his new address in letter Ex.C-5 dated 19.05.1986. The officials of the respondents were absolutely careless and sent the cheque in the year 1997 on the previous address of the appellant. This reflects the working of the respondents and its officials. The respondents have utilized the amount of the appellant and have not made any effort to refund the same within three months of the date of the draw and, as such, the respondents are liable to pay interest @ 9% per annum from after three months of the date of draw (which shall be disclosed by the respondents) on the amount of Rs.4,000/- till realization.

14. Accordingly, the app

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eal is partly allowed and the respondents are directed to pay interest @ 9% per annum from after three months of the date of draw (to be disclosed by the respondents) on the amount of Rs.4,000/- till realization. With this modification in the impugned order under appeal dated 05.06.2008 passed by the District Forum, the remaining part of the impugned order is affirmed and upheld. No order as to costs. 15. The respondents shall comply with the order within 30 days of the receipt of copy of the order. 16. The arguments in this appeal were heard on 10.01.2013 and the order was reserved. Now the order be communicated to the parties. 17. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.