BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.192 of 2017

Date of Instt. 19.06.2017

Date of Decision: 01.05.2019

Chander Kanta aged 58 years wife of Ashok Kumar, presently resident of House No.543, Bhagwan Dass Pura (Bagh Bahrain), Jalandhar City.

..........Complainant

Versus

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

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna (Member)

Present: Smt. Harleen Kaur, Adv Counsel for the Complainant.

Sh. Sachin Sharda, Adv Counsel for the OP.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainant, wherein alleged that the OP gave an advertisement to provide shelter to needy public with ulterior-modern facilities with quality and standard of construction and accordingly, attracted and allured the general public for apply LIG Flat in the scheme of Bibi Bhani Complex. The complainant submitted application No.69202 on prescribed form to OP along with all the requisite documents and completed and complied with all the formalities. The complainant was allotted LIG Flat No.86, First Floor, Vikas Scheme 51.5 Acre, Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar on 16.08.2009, in Lucky Draw dated 16.08.2009 at Red Cross Bhawan, Jalandhar. The information regarding the allotment of LIG Flat was given by OP, vide its letter No.JIT/8016 dated 28.01.2010, to the complainant. The complainant has 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. The complainant paid the whole purchase price of flat in the sum of Rs.5,27,942/- to OP as per the allotment letter dated 28.01.2010. The OP had not given the possession of the flat to the complainant even after protracted follow up and lapse of more than seven years from the date of allotment. OP was unable to give any valid reason and justification for unpardonable delay and non-delivery of possession agreed and assured to the complainant, till date. The delay in delivery of possession per se attract Odium of deficiency, negligence and unfair trade practice envisaged under the provision of Consumer Protection Act, 1986. That delay is tainted with malafide and arbitrariness and purpose behind the curtain is to be prolonged the delivery of the Flat in question to complainant, who needs the shelter to live in comfortably. The delay on the part of the OP cannot be condoned because there exist no adequate and sufficient reason for non-delivery of possession promised within scheduled period of time.

2. The complainant has been running from pillar to post for the possession of the flat or in the alternative return of the money paid by him to the OP, but to no avail. The complainant has been robbed of his hard earned money by OP, which is State within meaning and definition under Article 12 of the Constitution of India. The act and conduct of the OP is absolutely a deficiency in service and unfair 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 the price of the Flat i.e. Rs.5,27,942/- along with interest @ 18% PA from the date of deposit up to the date of actual payment 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 cost of proceeding of Rs.10,000/- and be also directed to pay postal expenses of Rs.1000/-.

3. Notice of the complaint was given to the OP, who appeared through its counsel and filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form and the same is liable to be dismissed. It is further averred that the complainant has not approached this Forum with clean hands as such the complainant is liable to be dismissed on this score alone. It is pertinent to mention over here that construction work of the flat in dispute was given to SK builders vide letter No.JIT/4756 dated 17.11.2009. The construction work was to be completed on 16.05.2011, but the contractor did not complete the construction work and leave the job. The OP many a times intimated the contractor to restart the work but the contractor never restarted the work due to which the OP vide its resolution No.124 dated 03.03.2014 blacklisted the said contractor and forfeited the bank and security and for this purpose government vide letter No.FSS TSS 2014/4482 dated 04.11.2014 gave approval. After the approval of the Government new tenders has been issued and the remaining construction work will be completed soon. It is further alleged that this Forum has got no jurisdiction to entertain the present complaint and as such, the same is liable to be dismissed. 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 submitted 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 two affidavits of the complainant Ex.CA and Ex.CB along with some documents Ex.C-1 to Ex.C-27 and then closed the evidence.

5. Similarly, counsel for the OP tendered into evidence affidavit Ex.OPA and one document Ex.OP-1 and closed the evidence.

6. We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the case file very minutely.

7. 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 OP or not. The other facts in regard to allotment of the LIG Flat 86, First Floor, Vikas Scheme 51.5 Acre, Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar is admittedly allotted to the complainant, vide allotment letter Ex.C-2 dated 28.01.2010. 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 within stipulated period is enumerated in Clause-7 of the allotment letter Ex.C-2, but in this case, the OP has not delivered the possession of the same to the complainant till today. Rather the plea of the OP is only that a letter bearing No.JIT/6818 dated 15.05.2017 sent to the complainant for taking possession of the flat, 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. The OP has exhibited the said letter dated 15.05.2017 in its evidence as Ex.OP-1. If we go through the said letter dated 15.05.2017, then we can adjudge without any hesitation that the OP has not mentioned in the letter that the construction work of the flat is totally complete with all amenities and necessity of the life, simply giving offer to take the possession, is not sufficient because as per allotment letter, the other facilities are also to be provided to the allottee, but in this case, the complainant has established on the file that since a day of allotment of letter i.e. 28.01.2010, 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 brought on the file any cogent and convincing evidence, 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 this 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, therefore, the complaint of the complainant is partly accepted and OP is directed to refund the price of the flat i.e. Rs.5,27,942/- along with interest @ 12% per annum from the date of deposit i.e. 28.01.2010, till further 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.30,000/- 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

01.05.2019 Member President