BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

                                                                   Complaint No.304 of 2019

                                                               New CC No.228 of 2024

                                                               (Remanded Back) 15.05.2024

                                                                   Date of Inst. 02.07.2024

                                                                   Date of Decision: 24.07.2024

Gaurav Gupta aged about 35 years, son of Sh. Ashwani Kumar, resident of 75, New Jawahar Nagar, Jalandhar.

..........Complainant

Versus

Jalandhar Improvement Trust, Opp. Skylark Hotel, Jalandhar through its Chairman.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:         Dr. Harveen Bhardwaj            (President)

 Smt. Jyotsna                           (Member)                                  Sh. Jaswant Singh Dhillon       (Member)

Present:        Sh. S. K. Gupta, Adv. Counsel for the Complainant.

                    Sh. Brijesh Bakshi, Adv Counsel for the OP.

Order

Dr.Harveen Bhardwaj (President)

1.                    The instant complaint has been remanded back by the Hon’ble State Commission, vide order dated 15.05.2024, whereby the order of this Commission dated 29.11.2023 had been set-aside and further, a direction was given to this Commission to decide the complaint afresh on merits after taking into consideration the contents of the complaint and the written reply filed by the OP as well as the evidence produced by them in support of their contentions and after affording adequate opportunity to both the parties to raise arguments in support of their contentions.

2.                Brief facts of the complaint are that the OP issued an advertisement in the year 2009 via various media in the shape of brochures, newspaper advertisement etc. for advertising development and construction of 276 Triple Storey L.I.G. flats Bibi Bhani Complex in 28 Kanals 9 Marlas of land situated at Guru Amar Dass Nagar, Jalandhar and invited applications from general public qua booking of said flats. O.P. also advertised the price of said flats, which is given hereunder:-

                   In the brochures, rosy picture was shown qua the flats and in this way, O.P. allured general public to invest money in the said scheme. Complainant also got allured in scheme floated by O.P. and booked a flat and consequent to booking of a flat, O.P. issued an allotment letter bearing No.JIT/7808 dated 28.01.2010 allotting Flat No.36-A, 2^nd Floor to O.P. in above said scheme. As per clause 7 of said allotment letter, it was clearly stipulated that O.P. shall be responsible to construct and develop the aforesaid area within a period of 2.5 years and shall provide all amenities within the stipulated period. The OP received a sum of Rs.60,000/- towards earnest money and thereafter, payment scheme was given in clause 15 of the said allotment letter, according to which 10 annual payments and interest has to be paid. The OP made payment of all 10 annual installments along with interest, costs, expenses etc. and in totality, sum of Rs.6,52,098/- was received by O.P. towards the full and final payment of the sale consideration of the said flat. The complainant inspected the site and on inspection, he was shocked to see that O.P. cheated complainant as not only O.P. failed to develop the land as per scheme, but only structural construction was raised at the spot. Further LPG Gas line has not been laid and O.P. failed to provide basic amenities in said locality viz. electricity, sewerage connection etc. as promised and advertised. Aforesaid action of O.P. amounts to deficiency in services apart from adopting unfair trade practice on its part. The complainant ran from pillar to post and requested officials of Jalandhar Improvement Trust, Jalandhar either to construct, develop and provide the amenities as agreed or to refund the amount of sale consideration along with interest thereon but O.P. failed to do so. The complainant also got served a legal notice requesting the O.P. through its Chairman to refund the amount of sale consideration of Rs.6,52,098/- paid by complainant along with interest, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to  pay a sum of Rs.6,52,098/- to complainant with interest @ 24% per annum from the date of respective amounts were paid by the complainant to OP till its realization and further OP be directed to pay a compensation of Rs.50,000/- for causing mental tension and harassment to the complainant and other relief as the Court may deem fit in the facts and circumstances of the case.

3.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the complaint of the complainant is not maintainable in the present form, as such, the present complaint is liable to be dismissed. It is further averred that the present complaint is a time barred. It is further averred that the present complaint is vague, false and frivolous to the knowledge of the complainant, the complainant given the false affidavit on 26.2.2009 that he is not having any plot residential or flat Improvement Trust Scheme, whereas, he is residing in 75, New Jawahar Nagar, being owned by complainant as the New Jawahar Nagar Scheme is the scheme of the Jalandhar Improvement Trust, Jalandhar as such, the present complaint is liable to be dismissed. It is further averred that the complainant is guilty concealment of facts. Till date no complaint whatsoever has been filed by the complainant to the answering respondent i.e. OP, which clearly shows that the complainant was satisfied with the conditions at the spot that is why, he has agreed to purchase the flat, as such, the present complaint is liable to be dismissed. It is further averred that the complainant is estopped from filing the present complaint by his own act and conduct. The complainant written was a letter vide letter No.2667 dated 9.9.2016 to come present in the office for execution of agreement to sell, but he never turned up to execute the same. Even a letter was written to the complainant to take the physical possession of the flat on 30.05.2017, in case he did not turn up, then it is presumed that the complainant has received the possession of the flat. As such, the present complaint is liable to be dismissed. On merits, the factum with regard to allotment of the flat to the complainant and the facts regarding payment to the above said flat to the OP is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.

5.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

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

7.                The present complaint has been remanded back by the Hon’ble State Commission to decide the complaint afresh on merits after taking into consideration the contents of the complaint and the written reply filed by the OP as well as the evidence produced by them in support of their contentions and after affording adequate opportunity to both the parties to raise arguments in support of their contentions. Earlier the District Commission dismissed the complaint of the complainant on the ground of limitation.

8.                Appeal was filed. The Hon’ble State Commission has observed that the complaint is within limitation. The Hon’ble State Commission has further observed that as per the law laid down by the Hon'ble National Commission, in the case of Navin Sharma (Dr.) & others Vs. Unitech Reliable Projectors Pvt. Ltd. & Anr. 2016(2) CLT 457 has held that unless and until the complainants get possession of the flats, complete in all respects, they have got continuous cause of action. Meaning thereby that the order passed by the District Commission observing that complaint is beyond limitation, was set-aside.

9.                Admittedly a Flat No.36-A, Block-A was allotted to the complainant, vide allotment letter Ex.C4. The complainant has proved on record that he has made the payment of Rs.6,52,098/- for the allotment vide receipts Ex.C-5 to Ex.C-15. The complainant has alleged that the OP failed to develop the land as per scheme, LPG Gas pipeline has not been laid and the OP also failed to provide basic amenities in said locality like electricity, sewerage connection etc. The complainant also got served a legal notice but all in vain.

10.              The OP has contended that a letter was written to the complainant to take the possession of the flat on 30.05.2017, in case he did not turn up, then it is presumed that the complainant has received the possession of the flat, but this contention is not tenable, as the OP has not produced on record any photograph or document from where it can be ascertained that the portable roads, water/sewerage and street lights etc. have been completed. It has been held by the Hon’ble State Commission, in “Manoj Bagroy Vs. M/s N. H. Matcon” in consumer complaint no.429 of 2019, decided on 07.01.2020 that even if the possession is taken by the consumer, it would be a incomplete and invalid delivery of possession for the want of the amenities. It has been observed by the Hon'ble State Commission in the above said case that the OP had not obtained the occupation certificate and completion certificate from the competent authorities to enable them to deliver the complete and effective possession to the allottess. Until and unless they obtain such certificate, it cannot be held that complete possession has been delivered as such there is continuous cause of action in favour of the complainant till the obtaining of such certificates by the OP and the complaint filed by the complainant was held to be within limitation.

11.              In the present complaint also the amenities are not complete despite the entire amount was paid by the complainant. The conditions mentioned in the allotment letter have not been complied with by the OP as the Flats were not ready within prescribed period, therefore the fault is of the OPs. 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 they had handed over the possession of the flat complete in all respect including the amenities as per the condition of Ex.C-4. The OP has produced on record Ex.OP-1 regarding Possession of the Flat, but has not produced the occupation and completion certificate duly issued by the competent authority showing that the basic amenities have been duly provided at the site. Even otherwise, Completion Certificate, as envisaged under section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in Short "PAPRA") is the most essential document, which should have been produced with regard the matter in issue but the same has not been produced by the OP to prove that Flat in question as well as basic amenities in the entire complex have been completed in all respects.

12.              In such circumstances, as per law laid down by the Hon’ble State Commission in a case titled as “Manoj Bagroy Vs. M/s N. H. Matcon”, the symbolic and incomplete possession was given to the complainant. The complaint is within limitation and the complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/flat within the stipulated time period. We are supported by the judgment of Hon'ble State Commission, Punjab Chandigarh in First Appeal No.87 of 2020 titled as ‘Jalandhar Improvement Trust versus Mahabir Prasad’ decided on 10.08.2020, wherein it has been held that ‘complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/fiat within the stipulated time period Even no completion certificate or occupancy certificate has been produced on record by OP to complete the project/flat within the stipulated time period’. Thus, the complainant is entitled for the relief.

13.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount paid/deposited by the complainant for Flat with interest @ 9% per annum from the date of making deposits till its realization. Further, OP is directed to pay a compensation of Rs.30,000/- for causing mental tension and harassment to the complainant and litigation expenses of Rs.8000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order and in case, the same is not done within 45 days, the OP shall be liable to pay additional interest @ 3% per annum to the complainant, on the amount of the Flat deposited by the complainant. This complaint could not be decided within stipulated time frame due to rush of work.

14.              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          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

24.07.2024         Member                          Member             President