BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.319 of 13.08.2019

Date of Decision: 09.03.2021

Capt. Rahul Khosla son of Shri Roshan Khosla, resident of 275, Chhoti Baradari, Part-II, Jalandhar.

..........Complainant

Versus

1. Jalandhar Improvement Trust, Jalandhar through its Chairman.

2. The Estate Officer, Jalandhar Improvement Trust, Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Kuljit Singh (President)

Smt. Jyotsna (Member)

COUNSEL FOR THE PARTIES:

For complainant : Sh.Gulshan Arora, Advocate

For OP No.1&2 : Sh.Deepak Sidana, Advocate

Order

Kuljit Singh (President)

1. The instant complaint has been filed by the complainant, wherein he alleged that OPs launched a scheme known as 21.5 Acres Development Scheme Bibi Bhani Complex for providing flats. Smt.Paramjit Khosla wife of complainant applied for the allotment LIG flat and in a Lucky Draw held on 16.08.2009 at Red Cross Bhawan, Jalandhar, Flat No.2A was allotted in the name of his wife and she was asked to deposit the installments of the flat as per schedule. Wife of complainant deposited entire consideration in installments and no amount is due and payable by his wife. After depositing of installment, his wife has been approached to OPs, for allotment but on spot verification, it was found that even the construction of the block of said flat was not started. In order to cover their wrongs, the Ops have putting off his wife on one or the other pretext. His wife submitted representation dated 22.04.2015 and 23.04.2015 for delivery of possession but no reply was sent to her. His wife deposited almost Rs.6,00,000/- with Ops as price of flat. Ops were liable to construct the flat and to hand over its possession to his wife as per terms and conditions, stipulated in the allotment letter. As ill luck would have it, his wife expired on 25.11.2016. During her life time, she executed a WILL dated 10.04.2016 in favour of complainant, bequeathing all her properties including the flat in question in favour of complainant. The complainant is entitled for delivery of possession of said flat. The action of Ops in not constructing the flat and delivery of possession to complainant is highly illegal, negligent and deficient in service. Lastly prayer has been made that the Ops be directed to refund the deposited amount by his wife alongwith interest @18% per annum from the date of deposit till final realization i.e. Rs.6,00,000/- plus Rs.2,00,000/- charges. Further, the Ops be directed to pay Rs.2,00,000/- as compensation for harassment. Claimed costs of the present complaint.

2. Notice of the complaint was given to the OPs, who appeared through its counsel and filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable. It is further averred that the flat was allotted to Paramjit Khosla wife of Capt. Rahul Khosla and unfortunately said Paramjit Khosla died on 25.11.2016 and the present complainant applied to OP for transfer of the flat through a legal notice dated 03.06.2019, but no will was attached with notice. Accordingly, as per requirement and procedure and rules of the OP, the counsel for complainant was informed to supply either registered will or legal heirs certificate from D.C. or succession certificate or order of the court or family settlement forming part of decree, but till date nothing has been complied with by the complainant. Present complaint is vague, false and frivolous. The complainant had purchased the flat for not her residence, rather she has purchased the said flat for commercial purpose to be sold to other person at higher price, even the wife of complainant was not consumer under Consumer Protection Act; complaint is premature. On merits, payment of installments admitted. The wife of complainant paid last installment on 20.01.2015 and it was stipulated in the agreement that the possession of the flat shall be handed over after 2½ of the last installment. But no one came from the side of Paramjit Kaur allottee and ultimately a notice dated 03.06.2019 was received by OPs from Sh. Gulshan Arora Advocate on behalf of complainant, which was replied by OP vide letter dated 02.07.2019. Till date no change of ownership of flat was recorded in the record. Receiving of complaint dated 22.04.2015 and 23.04.2015 is admitted as afterthought. Flat has already been constructed as per terms and conditions of allotment letter but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed

3. 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-9 and then closed the evidence.

4. Similarly, counsel for the OPs tendered into evidence affidavit of Surinder Kumari, EO - Ex.OPA alongwith some documents Ex.OP-1 to Ex.OP-6 and closed the evidence.

5. We heard the arguments made by learned counsel for the respective parties and also gone through the case file very minutely.

6. Firstly, we refer to discuss the legal point raised by the OPs that in view of the provision of Real Estate Regulation and Development Act 2016, the instant complaint does not lie with this Commission because the complainant has a right to file an application before the Adjudicating Officer in view of the above Real Estate Regulation and Development Act, 2016.

7. We have considered the aforesaid submission and find that Section of the Consumer Protection Act gives additional remedy to the consumer to file a consumer complaint and it is a liberty with the consumer is either to file consumer complaint or to file an application before the Adjudicating Officer appointed under Real Estate Regulation and Development Act, 2016. So, accordingly, we do not find any force in the submission of learned counsel for the OPs.

8. After taking into consideration the respective submission of both the counsel for the parties, we find that the dispute between the parties is only whether the possession of the flat in question is delayed for negligence of the OPs or not. The other facts in regard to allotment of the Flat No.2 A, Vikas Scheme 51.5 Acre, Bibi Bhani Complex, Jalandhar is admittedly allotted to the complainant, vide allotment letter Ex.C-1 dated 28.01.2010. The complainant alleged that as per allotment letter, the OPs 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 within stipulated period is enumerated in Clause-7 of the allotment letter Ex.C-1, but in this case, the OPs have not delivered the possession of the same to the complainant, in complete amenities till today. Rather the plea of the OPs is only that a letter bearing No.5243 dated 02.07.2019 sent to the complainant for transfer the flat in the name of complainant, but the complainant himself did not turn up to take the possession and as such, the complainant himself defaulted by not coming forward to take the possession of the flat as per terms and conditions of the allotment letter. No doubt, the OPs have exhibited the said letter dated 02.07.2019 in its evidence but failed to delivery of said letter to complainant. In this case, the complainant has established on the file that since a day of allotment of letter i.e. 28.01.2010, the OPs 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 OPs for long time. Even during the pendency of this complaint, the OPs has not brought on the file any cogent and convincing evidence, whereby the OPs 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 this type of evidence from the side of the OPs, itself shows that the flat in question is still not ready and inhabitable for human being and due to that reason, the actually and physical possession has not been given by the OPs to the complainant, which is clear cut deficiency and negligence on the part of the OPs 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.

9. We find there are much substances in the argument of learned counsel for the complainant, therefore, the complaint of the complainant is partly accepted and OPs is directed to give possession of flat after transferring the same in the name of complainant on receipt of required documents as per Ex.OP-6. In alternative, the complainant is not in position to submit the said documents, OPs be refund the price of the flat deposited by wife of complainant i.e. Rs.6,00,000/- along with interest @ 6% per annum from the date of deposit of last installment i.e. 20.01.2015, till realization and further OPs are directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.20,000/- and further directed to pay litigation expenses of Rs.5000/-. The OP-1 has no right to keep and misappropriate the public money. It must go back to the public. We, therefore, order that the OP-1 will deposit a sum of Rs.5000/, the estimate rough amount, with the legal aid account of this Commission. The entire compliance be made within 45 days from the date of receipt of the copy of order. 

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after its due compliance.

ANNOUNCED IN THE OPEN COMMISSION:

9^th Day of March 2021

(Kuljit Singh)

President

(Jyotsna)

Member