BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.006 of 2022

      Date of Instt. 11.01.2022

      Date of Decision: 16.06.2023

Narinder Pal Singh S/o Sh. Amir Singh, H. No.69, Durga Colony, Jalandhar.

..........Complainant

Versus

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

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. Naveen Chhabra, Adv. Counsel for the Complainant.

                   Sh. Brijesh Bakshi, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the OP allotted a plot No.368-D (Corner) Develop Scheme 94.97 Acre (Surya Enclave Extension) measurement 200 sq. ft., vide allotment letter No.817 dated 06.06.2016, against application 091263. The said plot was allotted by the OP against the various application received in the office. Thereafter, the allotment of above said plot, the complainant made the full and final payment as per the terms and conditions mentioned in the allotment letter. The last full and final payment made by the complainant is on vide receipt No.0070424 dated 04.06.2018 for Rs.11,78,100/-. The receipts issued by the OPs against the payment /installment received as on record. The complainant has made a total amount of Rs.43,99,100/- to the OP as per terms and conditions of the allotment letter which is total consideration values of the plot allotted to the complainant. The complainant is visiting the office of the OP since the payment of last installment i.e. 04.06.2018, for getting the possession of the plot No.368-D allotted to him, but all time official of the OP given no proper respond regarding the delivery of possession of the plot and even the complainant requested the OP to refund the total amount received with interest, in the event OP cannot give the possession of the plot. The OP has neither given the possession of the above said plot allotted to the complainant as per terms and conditions of the allotment nor refunded the amount received against the allotment from the complainant 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 refund the amount of Rs.43,99,100/- being the consideration values of plot with interest @ 12% per annum and further OP be directed to pay Rs.1,00,000/- as compensation for causing mental tension and harassment to the complainant and Rs.25,000/- 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 above noted complaint is not maintainable against the answering respondent, in the present form under the law. It is further averred that the present complaint is time barred. The allotment was made 06.06.2016 and the possession could be taken after entering into sale agreement within 30 days from allotment. But the complainant failed to do so. The complainant failed to take possession and till date before filing of the present complaint had no objections/ correspondence with JIT/OP and now the present complaint is time barred. It is further averred that the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. The plot in question i.e. Plot No. 368-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no. JIT/817 dated 06.06.2016 and the complainant received and acknowledged the same. The terms and conditions of the allotment letter are binding upon the allottee. As per the terms and conditions of the allotment letter the allottee could enter into sale agreement within 30 days from the date of allotment letter and thereafter the allottee could take possession from the OP. The complainant entered into sale agreement with the opposite party after a period of almost 3 years on 24.06.2019. As per the terms and conditions of the allotment the allottee could take possession after entering in to sale agreement. But despite entering into sale agreement on 24.06.2019 the complainant failed to take possession or even file any application for possession even till date. Whereas as per clause 5, the allottee has to enter into sale agreement within 30 days from the date of allotment and then seek possession after entering into sale agreement. In the present case the allottee clearly defaulted and he was entitled to seek possession after entering into sale agreement within 30 days but he miserably failed to either approach or write even a single letter to the OP to take possession whereas the Jalandhar Improvement Trust never refused possession rather had been performing its due part throughout. But he failed to take demarcation/possession. Thus, clearly it does not lie in the mouth of the complainant to say that Trust defaulted in any manner whatsoever when he had defaulted and flouted the terms and conditions of allotment and failed to seek possession as per terms and conditions of allotment. It was clearly mentioned in Clause 5 that the allotee has to enter into sale agreement of the plot within 30 days and it was further clearly mentioned that the possession of the Plot can be taken after entering into sale agreement with the Trust. As per clause 12 the plot was offered as it is as per site on as is where is basis and the allottee has to accept the dimensions/area as per site. As per the terms and conditions of the agreement the allottee was to raise construction on the aforesaid plot within 36 months. Whereas all these almost 5 years he had never given any letter or objection regarding possession. As such it was to be considered that he had the possession of the plot especially after entering into sale agreement of the said plot. However, suddenly the complainant has now filed the present complaint and demanded refund of amount and interest against the allotment terms and conditions and rather further raised wrong contentions about the lack of facilities etc and made other ill-founded baseless excuses and sought basic facilities along with possession at site. It may be seen that later on as the complainant felt that he failed to raise construction in time and that delay in taking possession by him was on no legal and valid grounds and the complainant may became liable for payment of non-construction charges and so as to avoid the liability of payment of extension fee/non construction charges, on account of not raising construction at site, now suddenly the complainant has took wrong pleas against Improvement Trust simply to avoid the payment of due non-construction charges. It is noteworthy that it is for the allottee or transferee to approach the Improvement Trust and seek possession and it is not the liability or responsibility of Improvement Trust to trace out the people and give possession to them. When any allottee does not approach the Improvement Trust to take possession the said person cannot blame the Jalandhar Improvement Trust for his own defaults. As per the allotment terms and conditions itself allotee/complainant never approached the OP for taking possession and now leveled wrong allegations regarding facilitates etc. Whereas all basic facilities to the complainant are complete at site. However OP has throughout been in a position to deliver the possession of the plot in question and has never refused to give possession to the complainant and even now Commission may fix any time or date and without any delay or ado the OP is ready to deliver the possession of the plot in dispute to the complainant. 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. It is further pertinent to mention that there is no provision in the terms and conditions of allotment letter or sale agreement that in case of the successful applicants/allotees 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 refund to allottee/ transferee. Even otherwise the complainant is not entitled to any relief from this Commission. There is no provision in Act, Rules or Government instructions for refund of sale money. It is further averred that the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. The Improvement Trust has never defaulted in performing any of its obligations under the allotment terms and conditions. It is further averred that the complainant is barred by his own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. The Complainant is guilty of concealment of material facts and misstatement and has not approached this Forum with clean hands and deserves no relief from this Forum. On merits, the factum with regard to allotment of the plot No.368-D 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 have produced on the file their respective evidence.

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

6.                The complainant was admittedly allotted the plot, vide allotment letter Ex.C-1. The complainant has proved on record that he has made the payment of Rs.11,78,100/- for the allotment vide receipts Ex.C-2 to Ex.C-6. The complainant has alleged that last installment was paid on 04.06.2018 for getting the possession of the plot No.368-D, but the possession was never given to the complainant till date.

7.                The OP has proved on record the agreement to sell between the complainant and the OP Ex.OP-2. This fact has also not been denied by the complainant that agreement was executed between the parties. Perusal of the agreement Ex.OP-2 shows that the same was executed on 06.06.2019. The complainant has nowhere alleged that the amenities or the facilities were not complete on the spot nor they are complete as on today or as on the filing of the complaint by him, nothing has been alleged by the complainant. He has simply stated that the possession was not given to the complainant despite the allotment on 06.06.2016. As per Ex.OP-2, the complainant could take the possession after entering into the sale agreement. As per allegations of the complainant, the OP has not handed over the possession to the complainant till now, but the complainant has nowhere alleged as to when he has approached the OPs to handover the possession. In his complaint in para No.8, he has alleged that ‘the cause of action arose on different dates when the complainant visited the office of the OP and finally on the first week of December, 2021, when the complainant visited the office of the OP and the OP failed to refund the money or failed to give the possession’. The complainant has not mentioned the dates when he ever visited the office of the OP to take the possession nor has proved on record any representation made by him for getting the possession or refund or any complaint made by the complainant to the OP for not handing over the possession to him. The complainant has also not proved on record any document to show that the OPs ever refused to give him the possession. The complainant has simply stated that the possession has not been delivered to him.

8.                Perusal of the record and the documents produced by both the parties show that the allotment was made on 06.06.2016. The last payment was made on 04.06.2018. The agreement to sell was executed on 24.06.2019. There is no document or explanation on the record to show that the complainant ever approached the OP after 24.06.2019 for the possession or refund of money as alleged. The complaint as per Consumer Protection Act can be filed within two years from the date on which the cause of action has arisen. The complaint could have been filed on 23.06.2021, but the complainant has filed the complaint without any request of condonation of delay on 11.01.2022, which is clearly time barred and as such, the same is not maintainable and therefore, the complaint of the complainant is dismissed with no order of costs. Parties will bear their own costs. 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                    Jaswant Singh Dhillon                    Dr. Harveen Bhardwaj     

16.06.2023                    Member                             President