Complainant Lakhbir Singh has filed the present complaint against the opposite party U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite party to deliver the possession of the said flat alongwith all the facilities which was assured by the opposite party at the time of notification alongwith interest @ 18% P.A. on amount deposited with the opposite party from the due date of the delivery of the said flat till the actual delivery of the said flat and the opposite party be also directed to pay Rs.2,00,000/- as compensation for harassment and mental agony suffered by him alongwith Rs.20,000/- as litigation expenses, in the interest of the justice.
2. The case of the complainant in brief is that he is allottee of M.I.G. Flat No.307-A Block A, 3rd Floor under development Scheme T.M.T.S. vide allotment letter dated 13.01.2011 of the opposite party and he deposited Rs.2,08,000/- while applying for the said flat and Rs.3,96,250/- on 29.3.2011 as earnest money i.e. ¼ of the total cost of the Flat Rs.20,75,000/-, in the office of the office of the opposite party and as per allotment letter dated 13.1.2011 the allottee of the flat has to deposit the cost of the flat within period of 2 ½ year and after receiving cost of the flat the opposite party has to deliver the possession to allottee of the flat till June 2012 and as such he is consumer of the opposite party. He has deposited approx. ½ of the cost of the Flat with the opposite party within stipulated period, after earnest money he deposited the first and second installment together by depositing Rs.8,30,758/- on 21.2.2012 and as such he is entitled for the possession of the said Flat, but the opposite party is not handing over the possession of the Flat to him one pretext or the other. A period of 5 years and 6 months has been elapsed since the allotment of the flat but the opposite party had failed to deliver the possession of the said Flat inspite of the fact that stipulated period for delivering the possession has been elapsed. Thus, he is suffering by the act and conduct of the opposite party which amounts to deficiency in service on the part of the opposite party. Hence this complaint.
3. Notice of the complaint was issued to the opposite party who appeared through its counsel and filed its written reply by taking the preliminary objections that the complaint is premature. As per the allotment letter issued to the complainant, the last installment of the allotment price was to be paid on 12.7.2013 and the possession of the flat was to be delivered after 2.1/2 years from that date only. In the present case, the complainant has not deposited all the installments till date. The pre condition is deposit of all the installments in time and thereafter the possession of the concerned flat has to be delivered. In the instant case, the condition on the part of the complainant is not fulfilled and as such the complainant cannot lodge such claim. The scheme is self finance scheme, if the payment is not made, how the possession can be deliver prematurely, but the complainant without waiting for the expiry of 2.1/2 years from the date 12.7.2013 after making payment has hurriedly filed the present complaint is prematurely. Moreover, the complainant has deposited only two installments with the office of the opposite party whereas, as per the terms and conditions of the agreement, the payment should have been cleared upto 12.7.2013 and thereafter the possession was to be delivered after 2.1/2 years but in this case, the complainant has filed to make the entire payment upto 12.7.2013 and has filed a false suit just to harass the opposite party and as such the complaint is premature and is liable to be dismissed; the complaint is bad for mis joinder of parties; the complainant has not approached the Ld.Forum with clean hands and has concealed the material facts from the Ld.Forum, as such the complaint is liable to be dismissed with costs and complaint is vague, false and misconceived, as such the same is liable to be dismissed with costs. On merits, all averments made in the complaint have been denied and lastly prayed that the complaint has been prayed to be dismissed with costs.
4. Counsel for the complainant tendered into evidence affidavit of complainant Ex.CW1/A, alongwith other documents Ex.C1 to Ex.C6 and closed the evidence.
5. Sh.Rajesh Kumar, Record Clerk of opposite party tendered into evidence his own affidavit Ex.OPW-1/A alongwith other documents Ex.OP-1 and Ex.OP-2 and closed the evidence.
6. We have duly heard the learned counsels for both the sides in the back drop of the legally applicable and statutorily acceptable merit as evidenced by the supporting document(s) duly produced on record by the litigating parties in order to statutorily resolve the inter-se dispute (under the C P Act’ 1986) prompting the present complaint. We find that the complainant being an allottee of the MIG Flat # 307-A, TMTS Development Scheme of the OP Improvement Trust and having admittedly deposited its partial amount of Rs.8,30,758/- out of the full cost consideration amount of Rs.20,75,000/- payable within the stipulated period of 2½ Years of allotment (on 13.01.2011) has not become entitled to its possession in June’2016 i.e., after another period of 2½ years from the date of final payment in terms of clause 5) of the allotment letter dated 13.01.2011. Further, the slow pace of progress & incomplete construction-status of allotted Flats (in question) necessitated the filing of the present complaint. We observe that the present dispute pertains to ‘infringement’ of complainant’s consumer rights by way of ‘non-handing over’ of timely possession of the partially paid-for allotted ‘flat’ to him on account of its incomplete construction-status followed by indifferent attitude towards its ‘redressal’ by the OP Trust amounting to ‘unfair trade practice’ under the applicable statute. However, the complainant has not completed his part of contract by making the payment within the stipulated time.
7. We find that the OP Trust through its written reply supported by its lone affidavit Ex.OP1 (of its clerk) dated 19.08.2016 have admitted the ‘incomplete’ & under-construction status (in progress/almost near completion) in August’ 2016 and that speaks volumes of its ‘deficiency in service’ coupled with ‘unfair trade practice’ in its routine professional dealings with ‘consumers’. We also observe that the OP Trust has filed only the lone affidavit (Ex.OP1) of its clerk Rajesh Kumar to prosecute its defense with however no cogent evidence to prove the legal validity and genuineness of the arbitrarily caused ‘delay’ in handing over the possession of the housing-flat besides partial payment in contravention of the terms of allotment; though causing harassment & monetary loss by own contributory act of the complainant. We also determine that the OP Trust authorities are not liable to pay for the arbitrary ‘delay’ since the complainant has also failed to complete his part of the contract by not depositing the full amount of the allotted flat.
8. In the light of the all above, we prefer to dispose off the present complaint by directing the complainant to expedite payment of the full consideration amount of the allotted flat by seeking additional time from the opposite party (Improvement Trust authorities) who are in turn directed to expedite handing over of the possession of the ‘flat’ (in question) complete in all respects with all the promised infrastructure facilities upon receipt of its full consideration amount from the complainant. The parties shall however bear their own costs here.
9. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
ANNOUNCED: (Jagdeep Kaur)
October 25,2016. Member
*MK*
