SATEESH KUMAR vs PUNJAB SMALL INDUSTRIES AND EXPORT CORPORATION

THIS is an appeal filed against judgment and order dated 22.3.2004 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh in Complaint Case No. 901 of 2002 filed by the appellant Er. Sateesh Kumar against the Managing Director, P.S.I.E.C., Chandigarh, vide which the complaint was dismissed on the finding that the complainant had failed to prove any deficiency in service or unfair trade practice on the part of the O.Ps.

THE appellant/complainant filed the complaint in which it was mentioned at the top of the complaint after description of the parties "subject: deficiency in service-refund of earnest money etc." A perusal of the complaint will go to show that the appellant proposed to set up a service industry i.e., repair and servicing of motor vehicles in the town of Pathankot. He submitted the application on 19.3.1999 for 2500 sq. yards Industrial Plot at Focal Point, Pathankot with project report, rough layout plan with equipment and machinery to be installed, certificates of educational qualification and draft of Rs. 31,250/-. A letter of intent (L.O.I) dated 30.5.2000 was issued wherein plot bearing No. D005 measuring 2500 sq. yards at Industrial Focal Point was proposed for allotment after payment of further 30% of the cost of the land and completion of some formalities mentioned in the letter of intent. It is alleged that the complainant with a view to examine the techno-economic feasibility of the service industry aforesaid, a plot allotted to him, personally visited the Focal Point and felt that the setting up of the proposed service industry at Growth Centre, Pathankot on plot allotted i.e., D005 was not feasible. Even the alternate plot that was offered to him was not feasible to him. He also represented the case to the Principal secretary, Industry and Commerce but got no response from him. He pursued the matter for two years and made protracted correspondence with P.S.I.E.C., which responded vide letter dated 10.7.2002 and informed the appellant that his earnest money had been forfeited. It is the forfeiture of the earnest money, which is described to be deficiency in service on the part of the respondent P.S.I.E.C. and the complainant has prayed for refund of the earnest money, which is of a sum of Rs. 31,250/- with interest w.e.f. 30.3.1999 i.e., from the last date for submission of application up to the date of payment; a sum of Rs. 50,000/- as loss/damages suffered by him due to negligence of the Managing Director of P.S.I.E.C. and sought compensation for harassment, mental agony and inconvenience, which was valued at Rs. 5,000/-. The complainant also claimed Rs. 2,000/- as costs of the case.

The written statement was filed by the respondent who put in appearance after service of notice of the complaint wherein the allegations of the complainant regarding deficiency in service on the part of the respondent was categorically denied. It was contended that the allotment committee considered the application of the complainant and recommended allotment of industrial plot measuring 2500 sq. yards in Growth Centre at Pathankot and plot No. D005 was offered for allotment to the complainant on 30.5.2000. The complainant was asked to deposit a sum of Rs. 97,750/- towards 30% of the tentative price within 40 days from the date of issue of letter of intent but the complainant failed to remit the said amount. The complainant was issued a show cause notice on 3.12.2001 and was to explain as to why the proposed offer of allotment be not withdrawn and cancelled and the earnest money equivalent to 10% of the costs of the plot be forfeited.

THE respondent referred to condition mentioned at Serial No. (v) of the application form, which has been extracted in the impugned judgment and order and which shows that the applicant was required to sign an undertaking that in case he failed to fulfil the conditions contained in the letter of intent within the stipulated period, the letter of intent would stand automatically lapsed and the earnest money and extension fee, as the case may be, stand forfeited. In reply on merit, the respondent referred to the request of the complainant dated 3.7.2000 and contended that the Corporation sent reply vide letter dated 17.7.2000 inviting the attention of the complainant that as per the terms and conditions of the letter of intent and undertaking given by the complainant, the earnest money deposited by him could not be refunded. Reference was made to the complainant''s letter dated 23.2.2001, which was replied on 21.8.2001 vide which the complainant was informed that the request for earnest money could not be acceded to. The Corporation, however, informed the complainant that it can consider the request of the complainant for alternate plot in lieu of the above said plot on the original terms of letter of intent subject to availability of the plot of the same size but even this offer of the Corporation was not acceptable to the complainant. The complainant instead of depositing the amount approached the National Consumer Awareness Group who sent a reply on behalf of the complainant, which was considered by the respondent and rejected as it was not found satisfactory. Still the complainant failed to pay the balance amount, which led the respondent PSIEC to forfeit the earnest money and to withdraw the letter of intent vide order dated 10.7.2002. The allegations made by the complainant that he had been cheated and harassed by the respondent were categorically denied.

THE parties led evidence in the shape of affidavit and documents. THE complainant filed his affidavit while the respondent filed affidavit of Shri M.K. Bector, Senior Assistant in the office of the respondent. A rejoinder was filed by the appellant/complainant. The District Forum upheld the case of the respondent and held that the complainant failed to prove any deficiency in service on the part of the respondent. Upon issuance of notice of appeal, appearance was put in by Mr. Manish Bansal, Advocate. The appellant appeared in person. The record of the complaint was summoned. We have heard the appellant in person and the learned Counsel for the respondent. We have carefully perused the impugned judgment and order and the record of the case.

THE facts are not much in dispute. THE appellant/complainant responded to the scheme floated by the respondent P.S.I.E.C. for allotment of 2500 sq. yards plot at Focal Point, Pathankot. THE complainant applied for the allotment of the plot at the Focal Point, Pathankot and he, in our considered view, took the decision of applying for allotment of the plot after satisfying himself about viability of setting up of his service industry of motor vehicles. THE appellant admittedly submitted a draft of a sum of Rs. 31,250/- as earnest money. It is also not disputed that the respondent allotted plot No. D005 measuring 2500 sq. yard in the Industrial Focal Point at Pathankot and issued the letter of intent to the appellant. THE appellant had second thoughts about the setting up of the service industry as aforesaid at the plot allotted to him and he took up the matter with the respondent and prayed for refund of the earnest money as the setting up of the service industry was not beneficial and viable at the plot allotted to him. THE respondent continuously wrote to the complainant to make a deposit of the sum of Rs. 97,750/- towards 30% of the tentative price within stipulated time but the complainant failed to do so and instead he insisted upon having his earnest money refunded to him as he was not interested in setting up the industry. THE appellant himself signed the undertaking, which has been extracted in the judgment and order of the District Forum, which read as under: "I/we hereby undertake not to claim refund of the earnest money deposited by me/us within four months from the date of receipt of application. In case I/we am/are offered a plot within four months or at any time, subsequently, before I/we have claimed the refund of the earnest money deposited by me/us, shall be bound to accept the same and in case I/we fail to do so, the earnest money deposited by me/us may be forfeited."

THE appellant/complainant was in the know of the fact that in case he failed to comply with the requirements of the respondent and to deposit the amounts asked for by the respondent within the stipulated time, the earnest money could be forfeited and the allotment of the plot could be withdrawn and cancelled. THE respondent considered the applications sent by the appellant and even thought of making an offer of allotment of alternate plot but even the same was not accepted. Even in para 1 of the complaint, the complainant himself has alleged, inter alia, as under: "My proposed Service Industry i.e., Repair and Service of Motor Vehicles is not feasible at Growth Centre Pathankot on Plot D005 (or even alternative plot offered)......." The respondent considered each and every application, which was sent and also sent replies to the correspondence and went to the extent of even making an offer of the alternate plot at the Focal Point but the appellant was not agreeable for the same. The appellant in Para 7 of his affidavit deposed, inter alia, as under: "....The conditions of LOI 1, 11, 22, 35, 36(i) mentioned therein are not relevant and hence show cause notice dated 3.12.2001 (ref encl. 13) and the said default amount of Rs. 3,24,205/- are not applicable, as I had on the first instance clearly spelt out the reasons for not accepting the LOI and do not wish to proceed with my project, because of its non-feasibility in that area. I find my self cheated and harassed."

This averment made in the affidavit does not prove any deficiency on the part of the respondent. The appellant was bound by the terms and conditions of the letter of intent and he was himself deficient in not complying with the demand of the respondent for depositing a sum of Rs. 97,750/- for making the deposit 30% in respect of the plot allotted. As a matter of fact, the appellant changed his decision and he did not want to set up the proposed service industry at the Focal Point itself for which the respondent cannot be held liable as being deficient in rendering any service on its part. The allegations of the complainant being cheated by the respondent have not been substantiated.

THE District Forum has after going through the material placed on record referred to the undertaking mentioned in the application at No. (i) at Internal Page 4, which clearly shows that the complainant undertook not to claim refund of the earnest money deposited by him within four months from the date of receipt of the application and in case he was offered a plot within four months or at any time subsequently before he has claimed the refund of the earnest money deposited by him, he shall be Found to accept the same and in case he failed to do so, the earnest money deposited by him may be forfeited. Condition No. 5 laid down that in case he failed to fulfil the conditions contained in the letter of intent within the stipulated period, the letter of intent would stand automatically lapsed and the earnest money and extension fee, as the case may be, would stand forfeited. Condition No. 6 runs as under: "I/we further agree and confirm that I/we shall abide by the terms and conditions of LOI/allotment letter and lease deed as may be decided by the Corporation and such further amendments/modifications as may be made by it from time-to-time." Thereafter, reference was made to Condition No. 11, which provide, inter alia, as under: "In the event of your failure to complete all the required formalities as mentioned in Condition No. 8 above, or payment of dues/instalment(s) within stipulated period, this letter of intent shall be deemed to have been withdrawn/lapsed. In such an eventuality, the amount deposited by you towards earnest money and extension fee, if any shall stand forfeited and amount over and above thereof shall be refunded to you without any interest."

THE District Forum repelled the contention of the appellant/complainant that certification No. (i) at Page 4 of the application Form (R-1) was not applicable to his case and similarly Condition No. 11 in the letter of intent was not relevant in his case and he is entitled to refund of earnest money because according to him his industry "Repair and Servicing Centre of the Motor Vehicles" would not be profitable to instal and run in the Growth Centre at Pathankot. After referring to the material placed on record and dealing with the rival contention, the District Forum held, inter alia, as under: "....Even at the time of arguments, the complainant has not been able to site any authority or law as to why the certifications given in the application form (R-1) and particularly certification Nos. (i) and (v) are not applicable to his case. Similarly he has not been able to be successful in citing any case law or statute in support of his contention that the condition No. 11 and other relevant conditions in the letter of intent were not applicable to his case. It appears that the complainant is not even sure of his case. In paragraph (viii) of the complaint he has stated that "his being peculiar case", he was justified in declining letter of intent and requesting the refund of earnest money. But in his letter (E-4) dated 25.7.2000 he has stated that his case is "typical one" and, therefore, it needs to be considered sympathetically by the higher authorities for withdrawal of letter of intent. So at one place, he states that his case a peculiar case which suggest that his case has got materially distinguishing features from all other cases while at another place in (E-4) he states that his case a typical case which means that it is a routine case of a particular type. Be that at it may as already indicated the mere fact that belated wisdom dawned on him that the proposed industry was not profitable would not allow him to escape the rigours of the terms and conditions of his application form as well as of the letter of intent." It will thus be evident that the appellant has failed to show any act or omission on the part of the respondent, which may amount to rendering deficient service hired and availed by the appellant. The District Forum has rightly held that the complainant has failed to prove deficiency in service on the part of the O.P. and the complaint has rightly been dismissed. There is no merit in this appeal, which is dismissed leaving the parties to bear their own costs.

COPIES of this order be sent to the parties free of charge. Appeal dismissed.