BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

 Complaint No.114 of 2016

      Date of Instt. 14.03.2016

      Date of Decision: 03.12.2019

Mahabir Prasad aged, 38 years S/O Shri Kadar Nath, resident of 84, Bharat Nagar Guru Nanakpura (West), Jalandhar.

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar, Through its Chairman.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh           (President)

Smt. Jyotsna                   (Member)

Present:       Sh. K. C. Malhotra, Adv. Counsel for the Complainant.

None for the OP.

Order

Karnail Singh (President)

1.                This complaint has been filed by the complainant, wherein alleged that complainant was allotted LIG Flat No.115-A Second Floor, in Visas Scheme 3.56 Acres Indirapuram Jalandhar, Master Gurbanata Singh Enclave, Jalandhar on 16.08.2009, in lucky draw dated 24.08.2008 at Guru Gobind Singh Stadium Jalandhar. The information regarding the allotment of LIG Flat was given by the OP, vide its letter No.JIT/8443 dated 04.11.2008 to the complainant. That the complainant deposited all the requisite papers for the registration of the application with the necessary fee and other formalities were completed within the stipulated period. The only formality, which was to be completed, was to give the possession of allotted flat duly completed with all the amenities and ultra-modern facilities with quality of standard construction. That the complainant deposited Rs.3,91,000/- against the purchase price Rs.3,52,200/- of allotted flat to the OP as per the allotment letter dated 04.11.2008 in installments and last installment on 08.08.2011 as per schedule of installment in allotment letter dated 04.11.2008.

2.                The OP had not given the possession of the flat to the complainant even after protracted follow up and lapse of about 8 years from the date of allotment though possession was to be delivered after two and half years by May, 2011 as per allotment letter. OP was unable to give any valid reason and justification for unpardonable delay and non-delivery of possession agreed and categorically committed to the complainant, till date. The delay in delivery of possession per se attract Odium of deficiency, negligence and unfair and deceptive trade practice and as such, the instant complaint filed by the complainant with the prayer that the complaint of the complainant may be accepted and OP be directed to refund Rs.3,91,000/- along with interest @ 12% p.a. from the date of deposit upto the date of actual payment to the complainant and further, OP be directed to pay compensation to the complainant for causing mental harassment and agony, to the tune of Rs.50,000/- and OP be also directed to pay litigation expenses of Rs.10,000/- and Rs.1000/- as postal expenses etc.

3.                Notice of the complaint was given to the OP, who appeared and filed written reply, whereby contested the complaint by taking preliminary objections that the complainant does not disclose cause of action and further alleged that the complainant is horribly time barred. The complainant has himself admitted that the allotment of the flat was done as far back as on 04.01.2008. The flat were ready for allotment as is where and situation basis. The complainant could not take the possession if he wanted. The complainant himself never sought possession. The complainant having approached the Forum after 8 years make the complaint time barred. It is further submitted that the OP is yet to receive any letter for possession from the complainant and further alleged that the OP made no allurement to the applicants for the allotment of flats in this behalf. The complainant applied for allotment of flat after fully deliberation and scrutiny of situation on the ground level. There is no basis of action for the complaint. The complaint is bad on principle of caveat emptor and further alleged that there is no deficiency in service and complaint is made with ulterior motive, being frivolous and vexatious, is liable to be dismissed with heavy costs. It is further averred that the complaint is liable to be dismissed because of the suppression of material facts. The complainant is stopped by his conduct and he cannot be permitted to take benefit of his own wrong. The complainant has no right to sue and further alleged that the complainant cannot get relief under the Consumer Protection Act and further averred that the complaint is bad for non-joining the necessary party. On merits, it is admitted that the flat in question has been allotted to the complainant and complainant has also deposited the entire price of the flat, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits, the same may be dismissed.

4.                In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavits of the complainant Ex.CA & Ex.CB alongwith some documents Ex.C-1 to Ex.C-8 and closed the evidence.

5.                At the stage of evidence of the OP, the OP after availing so many opportunities, failed to lead his evidence and ultimately, the evidence of the OP was closed by order on 25.02.2019.

6.                We have heard the learned counsel for the complainant and also gone through the case file very minutely.

7.                After taking into consideration, we find that the dispute between the parties is only whether the possession of the flat in question is delayed for negligence of the OP or not. The other facts in regard to allotment of the LIG Flat 115-A, Second Floor, in Visas Scheme 3.56 Acres Indirapuram Jalandhar is admittedly allotted to the complainant, vide allotment letter Ex.C-1 dated 04.11.2008. The complainant alleged that as per allotment letter, the OP has to complete the construction work within 2½ years and thereafter, handed over the possession to the allottee complete in all respect i.e. alongwith amenities and ultra-modern facilities with quality of standard construction. The construction work of the flat was agreed to be completed within stipulated period as enumerated in Clause-7 of the allotment letter Ex.C-1, but in this case, the OP has not delivered the possession of the same to the complainant till today. No doubt, the OP has not sent any letter to the complainant for taking possession of the flat. In this case, the complainant has established on the file that since a day of allotment of letter i.e. 04.11.2008, the OP has miserably failed to complete the construction within a stipulated period of 2½ years. It is pertinent to make clear here that the complainant has already deposited the entire price money of the said flat, if so, then the complainant is legally entitled to get the possession of the flat and live therein to enjoy the feeling of his own home, but from that facility, the complainant was deprived by the OP for long time. Even during the pendency of this complaint, the OP has not appeared at the time of evidence as well as arguments, whereby the OP can establish that the construction work of the flat has been already completed and the same is fit for delivery to the complainant. So, in the absence of any type of evidence from the side of the OP, itself shows that the flat in question are still not ready and inhabitable for human being and due to that reason, the actually and physical possession has not been given by the OP to the complainant, which is clear cut deficiency and negligence on the part of the OP and as such, we are of the opinion that after waiting a long time, the complainant became frustrated and demanded the return of the money along with interest, compensation and litigation expenses.

8.                We find there are much substances in the argument of learned counsel for the complainant as the OP failed to deliver the possession for a such long time, therefore, we are of the considered opinion that the complainant is entitled for the relief claimed and accordingly, the complaint of the complainant is partly accepted and OP is directed to refund the price of the flat i.e. Rs.3,91,000/- along with interest @ 9% per annum from the date of each deposits, till realization and further, OP is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.25,000/- and further directed to pay litigation expenses of Rs.7000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

9.                Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                       Jyotsna                           Karnail Singh

03.12.2019                                        Member                          President