Complainant Rajinder Kumar 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.104-B Block B, Ist Floor under development Scheme T.M.T.S. vide allotment letter dated 13.01.2011 of the opposite party and he deposited Rs.5,44,688/- as earnest money i.e. ¼ of the total cost of the Flat Rs.21,78,750/- i.e. Rs.20,75,000/- cost of the Flats Plus 5% extra i.e. Rs.1,03,750/- charge for ground and first floor, in 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 and as such he is consumer of the opposite party. He has already deposited the cost of the Flat with the opposite party within stipulated period, after earnest money he deposited the second installment of Rs.4,24,862/- on 12.7.2011, the third installment of Rs.4,05,252/- on 12.1.2012, the third installment of Rs.3,85,642/- on 12.7.2012, the fourth installment of Rs.3,66,032/- on 12.01.2013 and the last and fifth installment of Rs.3,46,422/- on 12.7.2013 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. He had taken loan from Punjab National Bank, Pathankot for purchasing and depositing the installment amount. He had paid Rs.5,15,658/- as interest in the abovesaid loan taken from Punjab National Bank, Railway Road, Pathankot. 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 but the complainant without waiting for the expiry of 2.1/2 years from the dated 12.7.2013 has hurriedly filed the present complaint is premature and is liable to be dismissed; the complaint is bad for non joinder of necessary 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, it was submitted that the possession of the flat was to be delivered to the complainant within 2.1/2 years from the date of making payment of last installment which was to be made on 12.7.2013 as per the allotment letter. It was further submitted that construction work of the flats under scheme was in progress and almost near completion very soon. After completion, the same shall be allotted to the complainant. The complaint is premature and is liable to be dismissed. There is no question of handing over the possession of the flat to the complainant prior to expiry of 2.1/2 years from the date of making last installment i.e. 12.7.2013 as per the allotment letter. The terms and conditions laid down in the letter are to be strictly complied with by both the parties. All other averments made in the complaint have been denied and lastly 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.C8 and closed the evidence.
5. Sh.Rajesh Kumar, Record Clerk of opposite party tendered into evidence his own affidavit Ex.OP1 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 # 104-B, TMTS Development Scheme of the OP Improvement Trust and having admittedly deposited its full determined amount of Rs.21,78,750/- (last & final installment of Rs.3,46,422/- paid on 12.07.2013) within the stipulated period of 2½ Years of allotment (on 13.01.2011) has 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 fully 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.
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 fully paid for housing-flat; causing harassment & monetary loss to the complainant. We also determine that the OP Trust authorities are fully liable to pay for the arbitrary ‘delay’ but only a moderate cost and compensation since the Bank interest/other costs of funds etc are primarily attributable more to the complainant’s ‘repayment’ capacity than to other factors.
8. In the light of the all above, we partly allow the present complaint and thus ORDER the opposite party (Improvement Trust authorities) to expedite handing over of the possession of the ‘flat’ (in question) complete in all respects with all the promised infrastructure facilities to the complainant besides to pay him Rs.10,000/- as compensation for the delay/harassment caused and Rs.5,000/- as cost of present litigation within 30 days of the receipt of the copy of these orders.
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*
