BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.383 of 2016
Date of Instt. 07.09.2016
Date of Decision: 18.04.2018
Seema Mahajan w/o Akshay Mahajan, R/o 309, Sector-4, Panchkula, Haryana at present 122 NAC, Shivalic Enclave, Mani Majra, Chandigarh.
..........Complainant
Versus
Jalandhar Improvement Trust, Jalandhar through its Chairman.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. Rajiv Suri, Adv Counsel for the Complainant.
Sh. Brijesh Bakshi, Adv Counsel for Opposite Party.
Order
Karnail Singh (President)
1. This complaint is filed by the complainant, wherein alleged that the OP had invited applications for allotment of 119 HIG Super Deluxe JIT Apartments at Surya Enclave, Jalandhar from the general public. The said scheme was opened on 03 March, 2014 to 16, March, 2014. The OP had to construct ten storey six apartment comprises 119, three bedroom, storyed super deluxe flats situated at Surya Enclave as per the project of the OP. The said scheme was published in the daily newspaper. The cutting of the said newspaper is also enclosed herewith. The complainant was being allured by the representation/advertisement/specification regarding the flat/scheme given by the JIT in the newspaper. The complainant believing upon the advertisement/specification in the scheme of the OP had applied the said flat with the hope that the said scheme floated by the OP have a unique feature and living in the said flat would be great status for the family of the complainant and the OP shall handover the possession of the said flat within two and half year as per the terms and conditions mentioned in the brochure. The OP issued the intimation letter dated 11.07.2014, to the complainant for the draw of the above said flat, would be held on 30.07.2014 at 11:00 AM at the office of the OP. The complainant submitted the application along with the draft to the tune of Rs.6,50,000/- as per the condition of the scheme, in favour of the OP, which was duly credited in the account of the OP. On 30.07.2014, the draw was opened and only 18 applicants including complainant took the part in the said draw/scheme and submitted their application out of 119 applicants. The complainant was allotted a Flat No.1021 as per the list of the Improvement Trust, which was pasted at the office of the OP. The copy of the list of the allottees is attached herewith. Thereafter, the OP has not given any information to the complainant regarding the construction work of the said flat or had not issued any allotment letter to the complainant. The complainant thereafter visited several times and make a request and approached to the OP as to know the status of his apartment/flat, allotted to him, but the OP has not given any suitable or reasonable reply to the complainant. The OP has failed to start construction of the flats as per the time framed in the brochure till day. The OP till today has not called the remaining applications for the allotment of the said apartment from the public in general no progress has been done in the said scheme by the OP. The complainant also inquired the matter and visited the spot, where the complainant found that there is no sign of the construction over the site of the OP. The complainant has also came to know from reliable resources that JIT has abandoned the scheme, which was mentioned in the brochure and have no plan to proceed with the original scheme, floated by the OP for which the complainant had paid the initial amount. The complainant has written two letters to the OP to refund the earnest money through registered post. The copies of the said letters are also enclosed and was duly received by the OP. The OP has not given any reply to the letter of the complainant till today nor has refund the amount to the tune of Rs.6,50,000/-. The complainant has visited so many times to the office of the OP and requested to return the money, but the OP kept on adjourned the matter on one pretext or the other. The complainant also told the OP that the improvement trust has not raised any kind of construction over the site, so, therefore, the OP has no right to retain the money of the complainant. The OP has not refunded the amount to the tune of Rs.6,50,000/-.
2. The Improvement Trust has now issued allotment letter dated 27.06.2016 after elapse of two years to the complainant. The copy of the said allotment is also enclosed herewith. The OP was to construct the above said flat after the draw and had to deliver the possession of the same to the complainant within two and half year as per the terms and conditions of the OP, but however the Improvement Trust has not even started the construction over the site and is seeking another two and half year from the complainant from the date of the allotment letter. Improvement Trust was bound to raise the construction after the draw i.e. 30.07.2014 and to complete the same within two and half year. The complainant cannot wait for another two and half year to take the possession of the flat from the OP, hence, the complainant wants to get his money back. The OP willfully and intentionally not refunding the above said amount to the complainant in order to swallow the money of the complainant without any reason. The complainant has several time visited the office of the OP and met the various officers sitting at the office and make a request to refund the above said amount, but the OP has not accede the request of the complainant and thus has rendered the deficient and negligent service, which give rise to the complainant to file the present complaint and accordingly, this complaint filed with the prayer that the complaint of the complainant may be accepted and OP be directed to refund the amount of Rs.6,50,000/- deposited by the complainant, with interest, till realization and further OP be directed to pay compensation/damages, to the tune of Rs.2,00,000/- and further OP be directed to pay litigation expenses of Rs.20,000/-.
3. Notice of the complaint was given to the OP and accordingly, OP appeared and filed written reply, whereby contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the OP in the present form and further averred that the present complaint is an abuse of process of law, because the complainant himself is a defaulter, who had failed to pay even the 1/4th amount of the sale price in time with the OP. The true facts of the matter is that the complainant was allotted Flat No.1021 Super HIGH Flat in the 170 Acre Development Scheme (Known as Surya Enclave) of Jalandhar Improvement Trust and the Allotment Letter No.JIT/1233 dated 27.06.2016 was issued to the complainant. As per the conditions of the allotment the allottee/complainant was to deposit the remaining ¼ sale money and to enter into sale agreement within 30 days from the date of issuance of the allotment letter, but the complainant failed to deposit the said amount along with 6% surcharge and accordingly, when the complainant failed to deposit the said amount the Earnest Money, deposited by the complainant was stand to be forfeited without any further notice and accordingly, the OP was constrained to take due action and the earnest money stood forfeited and the allotment cancelled and the information was duly conveyed to the complainant, vide Letters dated 25.10.2016 and 09.11.2016 and thus, the complainant is guilty of violation of the allotment conditions, Government instructions and Rules and now through the present complaint, he cannot be allowed to take the advantage of his own wrongs. It is further alleged that the complaint is barred by his own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed in the present complaint and further alleged that the present complaint for the refund of earnest money is barred by limitation. The amount was deposited along with application on 17.05.2014 and upto date of alleged legal notice dated 01.08.2016, the complainant never sought refund thereon. Thereafter, the complaint has been filed on 07.09.2016 and the same is time barred. It is further alleged that the complainant is guilty of concealment of material facts and misstatement and has not approached the Forum with clean hands. On merits, the publication in the newspaper in regard to Surya Enclave Scheme is admitted and it is also admitted that the complainant deposited a sum of Rs.6,50,000/- as earnest money and it is also admitted that a Flat No.1021 was allotted to the complainant, but subject to the provision of the brochure as well as allotment letter and in view of that term and condition, the complainant has to deposit 1/4th amount of the price within 30 days from the date of allotment, but the complainant failed to deposit the said amount and ultimately, the earnest money deposited by the complainant was already forfeited. The other contents of the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.
4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA along with some documents Ex.C-1 to Ex.C-4 and closed the evidence.
5. Similarly, counsel for OP tendered into evidence affidavit Ex.OP/A alongwith some documents Ex.O-1 to Ex.O-4 and closed the evidence.
6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
7. Precisely, the case set up by the complainant is that the OP invited applications for allotment of 119 HIG Super Deluxe JIT Apartments at Surya Enclave, Jalandhar from the General Public. The said scheme was opened from 03.03.2014 to 16.03.2014. As per the scheme of the OP, the OP had to construct ten storey six apartment comprises 119, three bedrooms, storyed super deluxe flats situated at Surya Enclave as per the project. The said scheme was published in the daily newspaper and accordingly, the complainant was being allured by the said advertisement and considered that the said flat will have a unique feature and living in the said flat would be a great status for the family of the complainant and it was also mentioned in the said advertisement that the OP will handover the possession of the flat within two and half year as per the terms and conditions mentioned in the brochure and accordingly, the complainant submitted the application along with the draft, to the tune of Rs.6,50,000/- as per the condition of the scheme in favour of the OP and accordingly, OP issued a letter dated 11.07.2014 for intimating the complainant that the draw of the said flat would be held on 30.07.2014 at 11:00 AM in the office of the OP and accordingly, the draw was opened on 30.07.2014 and only 18 applicants including complainant took part in the said draw/scheme, the said 18 applications were received by the OP against 119 applicants. A Flat No.1021 was allotted to the complainant, but after that no action was taken by the OP for construction work of the said flat nor had issued any allotment letter to the complainant. Even no suitable reply was given by the OP to the complainant in regard to construction of the flat as per the time frame in the brochure. Even till today, the OP has not started any construction work upon the said land rather the complainant became know from the reliable sources that the OP has abandoned the scheme, which was described in the brochure and thereafter, the complainant has visited many times to the office of the OP and requested to return the money, but the OP lingering the matter on one pretext or the other. When the OP has not raised any type of construction over the site, then the OP has no right to retain the money of the complainant despite oral request for return of the said earnest money, but the OP did not bother and ultimately, the instant complaint filed with the prayer to return the earnest money of Rs.6,50,000/- and compensation of Rs.2,00,000/- and litigation expenses of Rs.20,000/-.
8. On the other hand, the case of the OP is only that an allotment letter dated 27.06.2016, which is proved on the file Ex.O-1 issued to the complainant, despite that the complainant himself failed to deposit the amount within the stipulated period i.e. 30 days from the receipt of the allotment letter and ultimately, a reminder was also given to the OP for deposit of the said amount and then lastly, the earnest money of the complainant was forfeited and allotment of the flat made to the complainant has been set-aside, vide letter Ex.O-3 and Ex.O-4 and as such, no cause of action accrued to the complainant to file the present complaint, therefore, the same is liable to be dismissed with heavy cost.
9. We have sympathetically taken into consideration the above story narrated by each of the party and find that the factum in regard to floating a scheme of construction apartments at Surya Enclave, Jalandhar and for allotment of the plot in that scheme and advertisement was given and accordingly, the application of the complainant was received and an earnest money of Rs.6,50,000/- was deposited by the complainant, is not in dispute rather to this extent, the facts are admitted. The issue in dispute remains only whether the complainant himself failed to deposit the amount within a stipulated period i.e. 30 days from the receipt of the allotment letter or the OP has not fulfill the terms and conditions as mentioned in the brochure, for that purpose, we have to go through the pleading of both the parties as well as documents produced on the file and after going through the documents, we find that the factum in regard to constructed flat is to be handover to the complainant within two and half years from the date of allotment as per terms and conditions and said fact is not denied by the OP, in its reply or in affidavit, if so then, duty casted upon the OP to disprove this allegation of the complainant by leading cogent and convincing evidence, but in order to discharge the onus, OP has miserably failed to bring on the file any documentary or oral evidence to establish that the construction of flat work is started at the spot, if started, then the situation may be different, but if the construction work is not started till today i.e. after four years from the date of allotment of the flat, to the complainant, then it is clear that the OP has abandoned the scheme, which was advertised in the newspaper on the ground that the OP has advertised for allotment of 119 apartments, but admittedly received only 18 applications and it is practically not possible to construct only 18 flats and even thereafter no further advertisement has been given by the OP for allotment of the remaining flats. So, these factor itself established that the OP has withdraw the said scheme, despite that the OP itself failed to return the amount of the 18 applicants and as such, from this angle, there is a deficiency in service and unfair trade practice on the part of the OP.
10. Further, we have considered the plea taken by the OP that the complainant himself failed to deposit the 1/4th amount of the total price within stipulated period from the date of allotment and ultimately, the earnest money deposited by the complainant has been forfeited and allotment made to the complainant is cancelled, vide letter Ex.O-3 and Ex.O-4. The said letters are dated 25.10.2016 and 09.11.2016, means after the filing of the instant complaint, which is filed on 07.09.2016, so, it is manipulatively issued these letters by the OP just to save its skin from the liability, whatsoever affixed in this case and furthermore, the OP has categorically failed to explain the reason why remained silent from 30.07.2014 i.e. the date of allotment, till the date of filing of the compliant, why OP did not issue an allotment letter immediately after the date of allotment i.e. 30.07.2014. No doubt, the date of allotment letter is prior to filing this complaint, the date of allotment letter Ex.C-4 is 27.06.2016, whereas the instant complaint filed on 07.09.2016, but the OP has become aware that the allottee of the said scheme are going to file complaint in the Consumer Forum and out of that two allottees namely Dr. Minakshi Chander and Nagesh Mahajan has already filed a compliant No.CC/233/2016 dated 27.05.2016 and complaint No.CC/234/2016 dated 27.05.2016, these two complaints have been filed by the complainant prior to date of issuing of the allotment letter. So, the allotment letter was manipulated in response to aforesaid two complaints filed by the applicants. So, the intention of the OP is itself clear that they started issuing allotment letter after filing of the aforesaid two complaints and as such, the conduct of the OP towards the complainant is not fair rather it is for humiliation and harassment to the complainant.
11. Apart from above, the OP has also took a plea that the complaint of the complainant is time barred because the complainant has deposited an earnest money along with application on 17.05.2014, but the complaint filed on 07.09.2016, after elapse of two years, therefore, complaint is time barred, but we do not agree with this contention of the OP because the cause of action accrued to the complainant is recurring cause till the possession is not handover, the complainant has cause of action day to day and therefore, the complaint of the complainant is well within limitation.
12. From the over all circumstances as elaborated above, itself established that there are much substances in the argument of the learned counsel for the complainant, therefore, the complaint of the complainant is partly accepted and OP is directed to return the earnest money of Rs.6,50,000/-, to the complainant with interest @ 12% per annum from the date of deposit i.e. 17.05.2014, till realization and further OP is directed to pay compensation to the complainant for harassment and mental agony, to the tune of Rs.50,000/- and further OP is directed to pay litigation expenses of Rs.10,000/-, to the complainant. 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.
13. 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 Harvimal Dogra Karnail Singh
18.04.2018 Member President
