BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.281 of 2015

Date of Instt. 26.06.2015

Date of Decision: 08.03.2017

Dilroj Singh age about 38 years son of Sh. Parmod Singh R/o 262, Golden Avenue, Phase-II, Jalandhar. ..........Complainant

Versus

Jalandhar Improvement Trust, Jalandhar through its Chairman.

.........Opposite party

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh, (President),

Sh. Parminder Sharma (Member)

Present: Sh. RK Bhalla, Adv. Counsel for the complainant.

Sh. Brijesh Bakshi, Adv. Counsel for OP.

Order

Karnail Singh (President)

1. This complaint filed by complainant Dilroj Singh wherein alleged that the opposite party has presented a housing scheme of HIG (6 Storyed) Super Deluxe Flats named Shree Ram Vatika Apartments, situated at Guru Teg Bahadur Nagar, Jalandhar in the year 2006. The opposite party also published an advertisement in the newspaper in which the opposite party claimed that the flats are HIG Super Deluxe Luxurious Apartments and the said scheme was based on self financing scheme. The opposite party also issued a brochure of the said scheme and also promised to provide the following features:-

a. Round the clock security.

b. Provisions for 24 hours power backup for all the flats

c. Biometric Access System for each flat

d. Telephone Line Provisions in all bedroom

e. Door eye facility at main door

f. All bedrooms with attached toilets

g. Modular kitchen

h. Video Door Phone in each flat

i. Lift overlooking Central Centrum

j. Sliding Main Gate automission

k. Servant room with toilet in each flat

l. Well designed landscape

m. Centralized fire hydrant system with yard hydrant and wet riser and sprinkler system for car parking.

n. Centralized Monitoring Type- Back Convention Fire Detection System for every flat

o. CC TV System- Covering boundary with night vision and outdoor housing and centralized monitoring at security room.

p. Single Gate entry to Campus

q. Intrusion Detection System

r. Earthquake Resistance Structure

s. Swimming Pool, Billiard Room.

t. Health Club

u. Covered parking space

v. Automatic bareer with proximity assess to every resident having vehicle.

w. Cable TV Provisions in all bedrooms

x. Articulated LPG System

2. That the date for booking open on 12.03.2006 and closed on 25.03.2006. The total cost of the each flat was fixed as Rs.27,51,600/- and number of applications were received by the opposite party and flat No.102-A GF was allotted to one Ajit Singh son of Teja Singh R/o Village Hardo Wala, Tehsil Dasuya, Distt. Hoshiarpur by way of lucky draw vide allotment letter No.3388 dated 02.08.2006. Thereafter the complainant has applied for the transfer of above said flat in his name and ultimately the above said flat was transferred to the complainant by the opposite parties. The entire sale consideration as per the terms and conditions of allotment letter has already been paid and as per the terms and conditions of allotment letter as well as brochure, the construction of the flats was to be completed within a period of 2 ½ years from the date of allotment by opposite party, which means that the opposite party was bound to handover the possession up till June, 2009 after completing and providing all the facilities as prescribed in the brochure of the scheme which was issued by the opposite party at the time of receiving the application. That as agreed, all the installments to the opposite party have been paid but even after the payment of total cost of the flat, the opposite party failed to handover the possession as agreed by the opposite party. The opposite party even failed to complete the construction within prescribed time. The complainant was approaching the opposite party from time to time and requested it to complete the construction and to handover the possession to the opposite party but the opposite party failed to complete the construction and to handover the same.

3. That the opposite party handed over the possession by issuing a possession letter to the complainant whereas at the site the construction was still going on and rather the facilities which have been mentioned in the brochure was not even completed. The possession was given to the complainant on the assurance that all the facilities will be provided within few months as mentioned in the brochure. It is worth while to mention here that till today the work in the above said scheme is still going on and the said work has not been completed so far. So, there was a delay of about six years in handing over the possession by the opposite party to the complainant, which is a total unfair trade practice and deficiency in service on the part of opposite party as the opposite party is supposed to complete the flats in all respects and to handover the possession within a period of 2 ½ years from the date of allotment. That not only the fact that the opposite party had not handed over the possession of the flat to the complainant within prescribed time, the opposite party had not provided the features and also not completed the necessary facilities as required as per the brochure and allotment letter. At present on the site there is a lack of following features which the opposite party undertook to provide to the complainant as well as all the allottees in the scheme.

a. The generator has been installed by the opposite party but these generators are not in working condition to provide 24 hours power backup for all the flats.

b. The biometric access system is not working condition.

c. No door eye facility is installed in the main door of the flat.

d. No video door phone is installed in the flat.

e. The lift is not in working condition.

f. No sliding gate automation is provided. The main gate is manual.

g. The centralized fire hydrant system is in damaged condition and no centralized monitoring type system is installed.

h. No CCTV system is installed.

I. No intrusion detection system is installed. The swimming pool is also not working and there is a leakage in the swimming pool resulting into dampness in the roof as well as wall of the building.

j. There is a hall for health club but not even a single equipment is provided in the health club.

k. There is not any automatic bareer.

l. Articulated LPG System is not provided in spite of the fact that the opposite party has charged Rs.20,000/- for installation of the said system.

m. The electricity equipment installed for the supply of the electricity is of too much inferior quality that in spite of the fact that there is not regular supply of the electricity, the blast has occurred in the said equipment before its installation.

n. The water storage tanks which have been provided on the top floor is leaking resulting into dampness.

o. The paint in the flat is of inferior quality.

p. The pipes installed in the flat for water supply are of inferior quality resulting into bursting of the same and leakage also occurred in the joint of those pipes.

q. The quota stone which is affixed is having no finish as well as polish resulting into dullness. There is not any tile in the balcony as agreed.

r. That there is not any tile on the exterior walls as agreed.

s. There are no modular electrical switches as agreed.

4. That above said facilities which the opposite party undertake to provide to each flat owner, has not been provided by the opposite party which resulted into deficiency in service on the part of the opposite party and as such necessity arose to file the complaint with the prayer that OP may kingly be directed to provide all the facilities as mentioned in the brochure of the opposite party and to pay interest @ 18% per annum from June, 2009 “which was fixed by the opposite party for handing over the possession to the complainant” till its final realization and to pay a sum of Rs.2 lacs as compensation for the mental tension, harassment and agony suffered by the complainant and Rs.22,000/- as litigation expenses.

5. Notice of the complaint was given to the opposite party and accordingly the opposite party appeared through counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the instant complaint is not maintainable in the present form under the law against the respondent and further submitted that the present complaint is barred by limitation. The complainant took the flat in question on transfer and did not take possession. Moreover, till date before the filing of the complaint, there is no grievance or grouse or protest for not providing services since the date of allotment and thus the present complaint is barred by limitation and further submitted that the present complaint is not maintainable and barred on account of the pecuniary jurisdiction. The value of the flat which is the subject matter of the present complaint is Rs.29,00,000/- approximately as on the date of the allotment and thus the jurisdiction of the learned District Forum is barred and further submitted that the present complaint is false and frivolous even to the knowledge of the complainant himself and is not maintainable against the opposite party and further submitted that the complainant is not the original allottee of the flat in question rather he took the constructed flat in the year 2011 and entered in to sale agreement in the year 2011 after fully being aware of the condition of the flat and the status of works at site and after being fully satisfied with the same in subsequent purchase after paying due price as may be prevalent at that time to the seller and no amount has been paid by him on account of any services or development expenses to the Trust except for the statutory transfer fee for which the flat was transferred in his name and further submitted that the complainant is guilty of concealment of materiel facts and misstatement and has not approached this Forum with clean hands and deserves no relief from this Forum. On merits, the allotment of the flats is admitted but the remaining allegations made in the complaint are categorically denied and lastly prayed the complaint of the complainant may be dismissed.

6. In order to prove the claim of the complainant, the learned counsel for the complainant tendered into evidence affidavit of complainant Ex.CA alongwith documents Ex. C1 to Ex.C9 and thereafter evidence of the complainant is closed by order vide order dated 18.12.2015.

7. In order to rebut the evidence of the complainant, counsel for opposite party tendered into evidence affidavit Ex.OA alongwith documents Ex. O1 to Ex.O16 and closed the evidence.

8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

9. The learned counsel for the complainant submitted that the OP has advertised through publication in the newspaper and gave an offer to purchase Super Deluxe Luxurious Apartments of HIG for an amount of Rs.27,51,600/- and accordingly the complainant applied for one flat of HIG and also paid the entire amount and accordingly the flat was given to the complainant in a lucky draw. In the advertisement given in the Brochure Ex.C1 a unique features facilities agreed to be given to the inhabitants of said Super Deluxe Flats named Shree Ram Vatika Apartments, situated at Guru Teg Bahadur Nagar, Jalandhar but the said unique feature facility was not provided to the complainant, not so the possession of the flat was also given after a long time, as per Brochure possession is required to be given within 2 ½ years on the completion of the flat and as per brochure flat is required to be handed over to the complainant in the month of June 2009 because the advertisement form the housing scheme was published in the year 2006 and as such the complainant are entitled for compensation of Rs.2 lacs and litigation expenses of Rs.22,000/-. 10. On the other hand the learned counsel for the OP submitted that all the facilities promised to the allottee has been already given except the LPG pipe line because the said facility is not provided in the Jalandhar City and no charges has been taken from the allottee for that facility.

11. The next point raised by the learned counsel for the OP is that the complaint is time barred because in some of the cases the original allottee sold the flat in question through general power of attorney and thereafter neither sale agreement was made nor possession was taken and the person who purchased the flat through general power of attorney from the original allottee get the possession of the same after satisfying himself, so it means there is no deficiency in the flat and in some cases the flat in question transferred in the year 2011 and possession has been taken in the year 2012, 2013, 2014 for

that purpose. The OP has produce some letters in connected case which is also fixed for order today i.e. Hardyal Singh Versus Jalandhar Improvement Trust wherein letter Ex.OP6 dated 16.01.2013, letter Ex.OP7 dated 26.04.2013 these letters has been written by OP to the complainant for getting a possession and even in the case of Sheely Sood Versus Jalandhar Improvement Trust the letters are Ex.O2 dated 16.01.2013, Ex.O3 dated 26.04.2013 and Ex.O5 letter for request to the allottee to get sale agreement and also prove the same letter by OP in this case i.e. Ex.O14 dated 16.01.2013, Ex.O15 dated 26.04.2013 and Ex.O16 dated 14.11.2013 as such the getting of delay possession is not on the part of the OP rather it is on the part of the each allottee/complainant and also further submitted that the instant complaint filed after lapse of period therefore the same is time barred and therefore the complaint of the complainant may be dismissed.

12. We have considered the submissions of respective counsel for the parties and find that the complaint of the complainant is not time barred because getting of agreed facilities is recurring cause and therefore the submissions made by learned counsel for the OP is not sustainable. Further more in this case the complainant alleged that the unique feature facility as described in the Brochure Ex.C1 has not been provided to the complainant, which are also elaborated in detail in the complaint but out of these facilities the complainant is not able to differentiate which one is given and which one is not given but to the contrary the learned counsel for the OP vehemently alleged that all the unique feature facility has been provided to the complainant but the version of the learned counsel for the OP is not acceptable if virtually and actually these facilities has been provided to the complainant then the OP can produce the record and can prove it very easily for example if 24 hours power backup for all the flats is provided that they can produce the attendance register of the said staff who are providing this facilities and further if video phone in each flat has been provided then its photographs can be taken and produce on the file. Similarly if health club has been provided then its photographs can be taken and produce on the file and further CC TV Camera has been installed and its photographs can be taken and produce on the file and moreover where from material has been purchased for installation of these features the same can be produced on the file but the OP has not been able to bring any documentary evidence to establish that the facilities so agreed/promised through Brochure has been given to the complainant if so then the complainant has rightly come to the court with the submission that there is deficiency in service on the part of the OP who failed to provide the agreed facility and as such OP are required to provide all the facilities whatsoever mentioned in the Brochure under the heading unique feature facility.

13. I have also considered the submission of learned counsel for the complainant that there is much delay for delivery of possession but as per the evidence brought on the file by OP that they asked the complainant through letters for taking a possession and these letters are available on the file Manjit Kaur, Hardyal Singh and Sheely Sood and as per letters it is established that the flats were ready for handing over possession but the allottee who did not come present for getting the possession despite repeated reminder of the OP and moreover the original allottee has given a power of attorney to some other person whereby he wants to sell the same and due to that reason the possession is taken by the owner not in time and therefore the delay is not attributed to the OP and moreover as per Brochure Ex.C1 under the heading handing over possession it is not agreed by the OP that the possession will be delivered exactly after 2 ½ years rather that time is given tentative but from the date of completion of the flat so when ever flat is complete thereafter the possession was given to the allottee so accordingly we do not agree with the submission of the learned counsel for the complainant.

14. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OP is directed to provide all unique features facilities as described in the Brochure Ex.C1 to the complainant and further the OP is directed to pay compensation for harassment to the complainant to the tune of Rs.15,000/- and litigation expenses of Rs.5000/-. The entire compliance be made within two months from the date of receipt of order. Complaint could not be decided within stipulated time frame due to rush of work.

15. 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 Parminder Sharma Karnail Singh

08.03.2017 Member President