BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.364 of 2015

Date of Instt. 26.08.2015

Date of Decision :06.05.2016

Naresh Kumar Bali aged about 65 years son of Narinder Nath Bali R/o House No.554-A, Cheema Nagar, Mithapur Road, Jalandhar City.

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar through its Chairman.

.........Opposite party

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Bhupinder Singh (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.KC Malhotra Adv., counsel for the complainant.

Sh.DK Sharma Adv., counsel for the OP.

Order

Bhupinder Singh (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite party on the averments that complainant submitted application No.70933 on prescribed performa to the OP on 19.2.2009 for allotment of LIG Flat. OP allotted LIG flat No.27A, Second Floor, Vikas Scheme 51.5 Acre (Bibi Bhani Complex), Guru Amar Dass Nagar, Jalandhar on 16.8.2009 in lucky draw held on 16.8.2009 and the OP issued allotment letter bearing No.JIT/8043 dated 28.1.2010. Complainant completed all the requisite formalities within the stipulated period. The complainant paid whole purchase price of the flat to the tune of Rs.5,54,974/- to the OP as per allotment letter dated 28.1.2010, in installments as per the terms and conditions of the allotment letter, within 2 ½ years and the complainant paid the last installment on 12.7.2012. The OP as per the terms and conditions of the allotment letter was to give the possession of the flat in question to the complainant on payment of last installment i.e. within 2 ½ years from the date of allotment. OP was bound to hand over the possession of the flat in question to the complainant by 12.7.2012 when the complainant paid the last installment to the OP but the OP did not deliver the possession of the flat in question to the complainant despite so many request made by the complainant. OP has not yet constructed the flats in question. OP failed to deliver the possession of the flat to the complainant or in the alternative to return the money paid by the complainant alongwith interest. On such averments, the complainant has prayed for directing the OP to refund the amount of Rs.5,57,974/- deposited by the complainant alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, OP appeared through counsel and filed written reply pleading that as per clause 7 of the allotment letter, cost price of the flat allotted to the complainant vide allotment letter dated 28.1.2010 is to be recovered within period of 2 ½ years and during this period, the OP has to construct the flat and hand over the possession of the same to the complainant. The flat was expected to be ready and the possession was to be given to the allottee afterwords after execution of agreement. The structure of the flats is complete and finishing remains to be done which is held up as contractor has run away and the matter is pending before the court. The surety amount of the contractor has been forfeited and the finishing is being arranged at the expense of the contractor. The tenders are being floated. The forfeiture of the surety of the earlier contractor by the OP Trust is under challenge before the Hon'ble High Court in Civil Writ Petition No. CWP 12384 of 2014 and the stay was granted by the court. However, lateron it was dismissed and now finishing job is being taken in hand. Thereafter contractor again filed COCP No.546 of 2015 against OP/JIT and the same was also dismissed in July 2015. The contractor again filed another CWP No.20385 of 2015 which is pending for 21.1.2016. Under these circumstances, OP could not construct/complete the flats allotted to the complainant and other allottees due to aforesaid factors which were beyond the control of the OP. As such, the possession of the flat allotted to the complainant could not be handed over to the complainant in time. OP denied other material averments of the complainant.

3. In support of his complaint, complainant has tendered into evidence affidavits Ex.CA and Ex.CB alongwith copies of documents Ex.C1 to Ex.C12 and closed his evidence.

4. On the other hand, learned counsel for opposite party has tendered affidavit Ex.OW1/A alongwith copy of document Ex.O1 and closed evidence.

5. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.

6. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant submitted application No.70933 on prescribed performa to the OP on 19.2.2009 for allotment of LIG Flat. Resultantly, OP allotted LIG flat No.27A, Second Floor, Vikas Scheme 51.5 Acre (Bibi Bhani Complex), Guru Amar Dass Nagar, Jalandhar on 16.8.2009 in lucky draw held on 16.8.2009 and the OP issued allotment letter bearing No.JIT/8043 dated 28.1.2010 ExC1 to the complainant. Consequently, complainant completed all the requisite formalities within the stipulated period. The complainant paid whole purchase price of the flat to the tune of Rs.5,54,974/- to the OP as per allotment letter dated 28.1.2010 in installments as per the terms and conditions of the allotment letter within 2 ½ years and the complainant paid the last installment on 12.7.2012 vide receipt Ex.C9. The OP as per the terms and conditions of the allotment letter Ex.C1, was to give the possession of the flat in question to the complainant on payment of installment i.e. within 2 ½ years from the date of allotment. Learned counsel for the complainant submitted that OP was bound to hand over the possession of the flat in question to the complainant by 12.7.2012 when the complainant paid the last installment to the OP but the OP did not deliver the possession of the flat in question to the complainant despite so many requests made by the complainant. Rather, OP has not yet constructed the flats in question. The OP failed to deliver the possession of the flat to the complainant or in the alternative to return the money paid by the complainant alongwith interest. The learned counsel for the complainant submitted that all this amounts to deficiency in service on the part of the OP qua the complainant.

7. Whereas the case of the OP is that as per clause 7 of the allotment letter, cost price of the flat allotted to the complainant vide allotment letter Ex.C1 is to be recovered within period of 2 ½ years and during this period, the OP has to construct the flat and handed over the possession of the same to the complainant. The flat was expected to be ready and the possession was to be given to the allottee afterwords after execution of agreement. The structure of the flats is complete and finishing remains to be done which is held up as contractor has run away and the matter is pending before the court. The surety amount of the contractor has been forfeited and the finishing is being arranged at the expense of the contractor. The tenders are being floated. The forfeiture of the surety of the earlier contractor by the OP Trust was under challenge before the Hon'ble High Court in Civil Writ Petition No. CWP 12384 of 2014 and the stay was granted by the court. However, lateron it was dismissed and now finishing job is being taken in hand. Thereafter contractor again filed COCP No.546 of 2015 against OP/JIT and the same was also dismissed in July 2015. The contractor again filed another CWP No.20385 of 2015 which is pending for 21.1.2016. So, under these circumstances, OP could not construct/complete the flats allotted to the complainant due to aforesaid factors which were beyond the control of the OP. As such, the possession of the flat allotted to the complainant could not be handed over to the complainant in time. The learned counsel for the OP submitted that there is no deficiency in service on the part of the OPs qua the complainant.

8. From the entire above discussion, we have come to the conclusion that OP through advertisement/publication invited the applications from the general public for allotment of flat in Vikas Scheme 51.5 Acre (Bibi Bhani Complex), Guru Amar Dass Nagar, Jalandhar and the complainant submitted application No.70933 on 19.2.2009 on the prescribed performa (complete in all respect) to the OP and complainant was allotted LIG flat No.27A, Second Floor, Vikas Scheme 51.5 Acre (Bibi Bhani Complex), Guru Amar Dass Nagar, Jalandhar in lucky draw held on 16.8.2009. Resultantly, the complainant was given allotment letter bearing No.JIT/8043 dated 28.1.2010 Ex.C1 of the aforesaid LIG flat. There is no dispute that the complainant has completed all the formalities as per the allotment letter Ex.C1. He has paid the entire price amount of the flat in question Rs.5,54,974/- through installments within 2 ½ years from the date of allotment letter dated 28.1.2010 Ex.C1. The last payment was made by the complainant vide receipt dated 12.7.2012 Ex.C9. As per clause 7 of the allotment letter Ex.C1, the OP was to construct and hand over the possession of the flat in question to the allottee by the end of period of 2 ½ years from the date of allotment letter dated 28.1.2010 Ex.C1 i.e. the OP was to hand over the possession of the flat in question to the complainant by 12.7.2012 i.e. the date of last installment paid by the complainant to the OP vide receipt Ex.C9. It is admitted case of the OP that up till today i.e. May 2016, the OP has not completed the construction of the flats in question what to speak of handing over of the possession of the fully completed flat in question to the complainant. The OP has been enjoying the amount deposited by the complainant regarding the flat in question Rs.5,54,974/- which have been paid by the complainant in installments and the last installment was paid by the complainant on 12.7.2012 vide receipt Ex.C9. All this fully proves that the OP has been enjoying fruits of this amount i.e. Rs.5,54,974/- since 12.7.2012 and nothing has been paid to the complainant in the form of interest on the aforesaid amount. The plea of the OP that the contractor to whom the contract of construction of the aforesaid flats was given had run away leaving the construction incomplete and his security amount has been forfeited by the OP. However, the said contractor filed writ petitions before Hon'ble High Court and same were dismissed but he has again filed another civil writ petition which is still pending before the Hon'ble High Court but now there is no stay order has been passed against the OP nor the OP can produce any stay order. Further more, it is the contract between the OP and the contractor for the completion of the flats in question. There is no privity of contract between the complainant and the said contractor. The OP was liable to get the construction completed within the stipulated period from another contractor and could get the amount, if any spent more than the contract, recovered from earlier contractor but the allottees could not be made to suffer because of fault on the part of the contractor which was engaged by the OP.

9. The OP has not mentioned, in its written reply and evidence produced by the OP, the time period as to when the aforesaid flat can be completed. So, it is clear that OP is not likely to complete the construction work of the flats in question in the scheme in question, in the near future. As such, OP is liable to refund the amount i.e. price of the flat received from the complainant/allottee i.e. Rs.5,54,974/- with interest.

10. Resultantly, we allow the present complaint with cost and OP is directed to refund the amount of Rs.5,54,974/- to the complainant with interest @Rs.12% per annum from the date of receipt till the payment is made to the complainant/allottee. The OP is also directed to pay cost of litigation to the tune of Rs.2000/- to the complainant. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Bhupinder Singh

06.05.2016 Member Member President