BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.226 of 2020
Date of Instt. 07.08.2020
Date of Decision: 07.03.2022
Jagmohan Singh S/o Sh. Darshan Singh, R/o 1062 Urban Estate, Phase-2, Jalandhar.
..........Complainant
Versus
Jalandhar Improvement Trust,Hotel Skylark Chowk, 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. P. M. S. Narang, Adv. Counsel for the Complainant.
Sh. Brijesh Bakshi, Adv. Counsel for the OP.
Order
Dr. Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant through his attorney Sh. Aman Verma, wherein it is alleged that the OP in the year 2011, carved out a development scheme of 94.97 Acre known as Surya Enclave Extension, Jalandhar and allotted plot No.375-D, measuring 200 Sq. Yards, situated at Surya Enclave Extension, Jalandhar to Sh. Gurcharan Singh, vide allotment letter No.JIT/2839 dated 26.12.2011. that thereafter Sh. Gurcharan Singh appointed Smt. Surinder Kaur and Sukhwant Kaur as his general attorney vide GPA No.6973 dated 02.02.2012 registered in the office of Sub-Registrar, Jalandhar and the intimation to this effect was given to the OP vide letter dated 01.08.2014. That thereafter, the above said plot was transferred in the name of the complainant by the OP vide transfer letter no.JIT/4500 dated 02.02.2015 and complainant became the owner of the above said plot. The complainant paid a transfer fee of Rs.65,500/- to the OP. That Sh. Gurcharan Singh and complainant paid all the installments along with interest to the OP. The complainant has paid the entire sale consideration along with interest upto 23.06.2014. As per terms and conditions of the allotment letter No.JIT/2839 dated 26.12.2011, the OP despite of making of the entire payment has miserably failed to handover the physical possession of the said plot to the complainant. The complainant visited the office of OP many a time, but the officials of OP kept on lingering the matter on one pretext or the other. The officials of OP always told the complainant to wait for some more time. The complainant wrote request letter to the OP requesting the OP to handover the possession of the plot in question vide letter which has been received by the OP vide dairy no.5035 dated 26.06.2020. The OP did not give any reply to the letter of the complainant nor gave possession of the plot to the complainant till date. Also the OP till date has not carved out any roads nor laid the sewerage and water supply pipes nor has erected electric poles or electric wires and has not done any development work at the site, for giving possession of plots, as per the terms of allotment letter. The OP has never written any letter/notice to the complainant for taking the possession of the plot or for execution of any documents. That till date, the complainant is running from pillar to post, but act and conduct of the OP is adamant, unlawful, arbitrary and the act of the OP has caused great mental tension to the complainant and complainant has suffered mental agony at the hands of the OP and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to give possession of plot in question or in alternative direct the OP to refund the amount of Rs.76,53,344/- (i.e. Rs.39,33,170/- amount paid by the complainant, Rs.65,500/- transfer fee and Rs.36,54,374/- interest @ 15% per annum from 23.06.2014 to 27.07.2020, along with further interest @ 15% per annum till the date of payment by the OP to the complainant. Further OP be directed to pay Rs.5,00,000/- to complainant as compensation for causing mental tension, harassment, pain and agony to the complainant and Rs.20,000/- as litigation expenses.
2. Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable against the answering OP. That the complainant is not a consumer qua the OP/JIT as such there is no question of any deficiency in service towards him. The complainant is neither the allottee nor the transferee of the plot in question. The plot was allotted to Sh. Gurcharan Singh S/o Sh. Sarwan Singh and he never raised any finger upon the services of the JIT nor applied for possession or any objection throughout till date. The plot stands in his name and he has not filed the present complaint as such, the present complaint is not maintainable. The present complaint is not filed in the capacity of representative or legal heir or transferee for price rather individually and not even signed or filed by original allottee and thus, the facts stated herein by the complainant are neither legal nor valid nor convey any cause of action in favour of the complainant. The present complaint deserves to be dismissed on this score alone. It is further averred that the present complaint is an abuse of the process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. As per terms and conditions of the allotment letter, the allottee was to enter into sale agreement within 30 days and deposit 1/4th sale price and it was clearly offered that the allottee can take possession of the plot after entering into sale agreement, but the allottee failed to enter into the sale agreement within 30 days Even till date the sale agreement of the plot in question has not been executed. It is further averred that the present complaint is false and frivolous even to the knowledge of the complainant and is not maintainable against the OP. There is no provision in the terms and conditions of the allotment letter or sale agreement that in case of the successful applicants/allottees and transferees the surrender of the allotted plot can be made or the refund of sale money deposited or payment/part payment of the sale price can be refunded to allottee/transferee. That the present complaint is an abuse of the process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. It is further averred that the complainant is barred by her own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed in the complaint. On merits, the factum in regard to allotment of plot in question to Sh. Gurcharan Singh is 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.
3. 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.
4. In order to prove their respective versions, both the parties produced on the file their respective evidence.
5. We have heard the arguments from the learned counsel for the respective parties and have also gone through the case filevery minutely.
6. It is admitted and proved fact that Gurcharan Singh S/o Sh. Sarwan Singh applied for the allotment of the plot in Surya Enclave Extension Jalandhar. It is also admitted and proved fact that he was allotted the Plot No.375-D measuring 200 Sq. Yd. under the 94.97 acre scheme as per Ex.C-2. The contention of the complainant is that said Gurcharan Singh appointed Smt. Surinder Kaur W/o Sh. Surinder Singh and Smt. Sukhwant Kaur W/o Sh Jagmohan Singh as his General Attorney as per Ex.C-3 and intimation to this effect was given to the OP. After that the plot was transferred in the name of the complainant, vide transfer letter dated 02.05.2015 Ex.C-5, transfer fee was paid and has been proved as Ex.C-6. The complainant has also proved on record the documents Ex.C-7 to Ex.C-13 to show that the entire amount of the plot was deposited by both the original allottee and the complainant.
7. The contention of the Ld. Counsel for the OP is that the complainant is not the consumer and therefore, this complaint is not maintainable. He is not the original allottee nor the plot has ever been transferred in his name. The letter ExC-5 was never issued by the OPs. The complainant himself has applied for transfer of the plot in the year 2020. The letter has been proved as Ex.OP-9. His contention is that the complainant has no locus-standi to file the present complaint. The letters were issued to the allottee to take the possession, but the allottee or the complainant has never come to take the possession.
8. So far as the contention of the OPs that the present complaint is not maintainable is concerned, the same is not tenable. The complainant has proved on record the power of attorney in favour of Sukhwant Kaur and Surinder Kaur. As per the documents filed on record by the OPs, in the year 2014 the attorney moved application for supplying her copy of agreement, site plan and no due certificate and also sought the possession of the plot vide Ex.OP-2. In the written statement, it has been admitted that the attorney of the complainant moved an application for transfer of the plot in October 2015, which has been proved as Ex.OP-3 and declaration has also been given by Smt. Sukhwant Kaur, vide Ex.OP-4 even Jagmohan Singh, the purchaser filed declaration Ex.OP-5. These documents have been admitted and proved by OPs, which show that the application for transfer was moved in the year 2015. Once the application for transfer of the plot was already moved in the year 2015, then the question of moving application again in the year 2020 does not arise. Perusal of Ex.OP-9 shows that no date has been mentioned by the complainant when the alleged application was moved, however it bears the stamp of OP on which the date has been mentioned as 12.02.2020. The report of the office was called, but there is no reference in the reports of the application admittedly moved by the complainant for transfer of the plot in the year 2015 supported by declarations. As per Ex.C-5, the plot has already been transferred in the name of the complainant and Rs.65,000/- as transfer fee was deposited by the complainant. No evidence has been led by the OP to rebut the document Ex.C-5 to prove that this document was never issued by the OP. No copy of record has been proved to show that no such letter vide No.4500 dated 02.02.2015 regarding the plot No.375-D was ever issued by the OPs. Thus, the plot was transferred in the name of the complainant and hence, he is the consumer. As such, the present complaint is maintainable.
9. The OP has relied upon the document Ex.OP-7 and Ex. OP-8. Perusal of Ex.OP-8 shows that this is the Form-D and is agreement to sell. In the written statement, it has been admitted by the OP that Sm. Sukhwant Kaur filed paper for executing sale agreement of plot in her favour, vide papers dated 04.11.2015. Ex.OP-8 shows that this is the standard performa of the OP and the columns of the same are blank. Nothing has been filled in the Form-D, which is consisting of three pages and the list of the documents is also blank. All these pages bears the signatures of Sukhwant Kaur and on the page no.3 of agreement Ex.OP-8, it bears the signatures of witness. This document was allegedly filed by the attorney of Gurcharan Singh namely Sukhwant Kaur and as per Ex.OP-7 the report was called on this document as per written statement and as per the report dated 02.11.2015 and 03.11.2015, no Court case was pending. As per the letter Ex.C-5, the plot was already transferred in the name of Jagmohan Singh. Thereafter, as per Ex.OP-9, the application was moved by Jagmohan Singh for transfer, whereas the agreement to sell was allegedly executed by Sukhwant Kaur. This is contradictory and cannot be accepted from the institution like the OPs They are accepting the blank documents duly signed by the allottees without making them understand the contents of the documents. This is unfair trade practice on the part of the OPs. If we compare the signatures of the complainant Jagmohan Singh on Ex.OP-9 and the complaint, power of attorney in favour of counsel, document Ex.OP-5 duly signed by the complainant, then from the naked eye one can conclude that the signatures on the application Ex.OP-9 are different from the above other documents. The Commission can take judicial notice as per Indian Evidence Act. This shows that there is no rebuttal to the document Ex.C-5. Ex.C-15 are the guidelines for the delivery of possession and for fixation of interest and as per these guidelines a notice for delivery must be issued to the purchaser within a period of 30 days and if the allottee fails to turn up for taking possession, it would be presumed that the possession has been delivered. Even otherwise as per allotment letter Ex.C-2 and Ex.OP1, there is condition no.7 that all the amenities and development shall be completed within 2½ years of the allotment and after giving the agreement, the possession of the plot shall be handed over to the allottee. There is no document on the record to prove that any such notice was issued by the OPs to take over the possession of the plot. It has also not been proved by the OP that the all amenities to be provided to the allottees are complete and the development of the area is also complete. No completion certificate has also been produced on the file by the OP. Even the OP has not disclosed this fact that the Status Quo order was passed by the Hon’ble High Court and despite that they have allotted the plot. Thus, they have committed unfair trade practice. The case titled as “Jalandhar Improvement Trust Vs. Munish Dev Sharma Sanjay Gupta” was decided by the Hon’ble National Consumer Disputes Redressal Commission. This case also relates to the Surya Enclave Extension Jalandhar, consisting of a development scheme over an area of 94.97 acre of land, in which the Hon'ble National Commission has held that “Non-delivery of possession –Deficiency in service – Unfair trade practice – Costs – Appellants despite having full knowledge of the status quo order of the High Court, issued allotment letters – In spite thereof, Appellant- Trust had gone ahead and allotted plots in question to the respondents, which it could not have done so – Appellants have played fraud with the general public and thus collected huge amount of money”.
It has further been observed by the Hon'ble National Commission that the appellants having full knowledge that the scheme in question could not see the light of the day still promoted the scheme to befool the public. Thus, the appellants have adopted unfair method as well as deceptive practice in promoting the sale of the plot in question and this act was held to be covered under the meaning of unfair trade practice. This law is fully applicable to the facts of the present case as the present case also is covered under the Surya Enclave Extension Scheme, Jalandhar covering an area of 94.97 acre. There is a deficiency in service as well as unfair trade practice on the part of the OP. It has been held by the Hon’ble Chandigarh State Commission, cited in 2016 (4) CLT 526, in a case titled as “Ms. Rubel Goyal Vs. M/s Puma Realtors Private Limited”, which is as under:-
“Housing construction – Offer of possession – Lack of basic amenities – Alleged deficiency in service and unfair trade practice – complaint filed – Fact that certain amenities and approvals were complete/obtained after offer of possession, clearly proves deficiency of the OPs – There is nothing, on record that, complete development, in respect of plot, in question, and amenities at the site as promised, as per the Agreement, were available at site – Moreover, OPs were not only deficient, in rendering service but also indulged into unfair trade practice, by offering a paper possession to the complainant, before completing the development as also without obtaining the necessary approvals – OPs were thus, duty bound to provide all basic facilities like roads, sewerage, drinking water, street lights, drainage etc.”
It has been further held by the Hon’ble Chandigarh State Commission, cited in 2017 (3) CLT 566, in a case titled as “Usha Rani Vs. Puma Realtors Pvt. Ltd.”, which is as under:-
“Housing Construction Paper possession offered without completing development work at site Deficiency in service Complaint There was promise to make development OPs were duty bound to provide all basic facilities Obtaining of certain amenities and approvals after offer of possession clearly proves deficiency of service and unfair trade practice.”
“Housing Paper possession Non-completion of development work Deficiency in service Consumer complaint Refund of deposited amount Entitlement of On violation of material condition in handing over possession of unit in time, it is not obligatory for a purchaser to accept possession after that date Complaint entitled to refund of consideration amount Obligation to refund money received and retained without right carries with it right to interest Amount to be refunded with interest @ 12% p.a.”
10. Thus, in view of the above detailed discussion, we are of the considered opinion that the complainant is entitled for the relief claimed and accordingly, the complaint of the complainants is partly allowed and OP is directed to refund the price of the plot along with interest @ 9% per annum from the date of payment, till realization and further, OP is directed to pay a compensation to the complainants for mental agony and harassment caused to the complainants, to the tune of Rs.30,000/- and further directed to pay litigation expenses of Rs.5000/-. The entire compliance be made within 45 days 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.
11. 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
07.03.2022 Member Member President
