BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.469 of 2015

Date of Instt. 03.11.2015

Date of Decision :22.07.2016

Nidhi Batra wife of Aakash Batra, 116-A, Nakodar Road, near Lovely Sweets, Jalandhar City.

..........Complainant

Versus

The Jalandhar Improvement Trust, Jalandhar through its Chairman.

.........Opposite party

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Bhupinder Singh (President)

Sh.Parminder Sharma (Member)

Present: Sh.Arvind Sharda Adv., counsel for the complainant.

Sh.Sachin Sharda 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 (hereinafter called as OP), on the averments that complainant applied for LIG flat in Vikas Scheme 51.5 Acre (Bibi Bhani Complex), Guru Amar Dass Nagar, Jalandhar. OP vide letter No.7853 dated 28.1.2010 informed the complainant that she was successful allotee of LIG flat bearing No.29-A, second floor in the aforesaid Bibi Bhani Complex. OP issued allotment letter dated 28.1.2010 to the complainant. The complainant paid the entire amount i.e. price of the aforesaid flat in installments to the OP as under:-

2. The last installment was paid by the complainant on 10.2.2015 as per terms and conditions mentioned in the allotment letter. In all the complainant paid a sum of Rs.6,52,598/- to the OP but the OP could not deliver the possession of the flat to the complainant. As per terms and conditions of the allotment letter, the OP was bound to hand over the possession of the flat in question to the complainant on payment of last installment and the OP was also to execute the agreement of sale in favour of the complainant but up till now the OP neither executed agreement of sale in favour of the complainant nor handed over the possession of the flat in question to the complainant. The complainant came to know that the OP did not raise any construction of flats in question. So, they are not in a position to hand over the possession of the said flat to the complainant. On such averments, the complainant has prayed for directing the OP to refund the amount of Rs.6,52,598/- paid by the complainant to the OP alongwith interest @ Rs.18% per annum. She has also claimed compensation and litigation expenses.

3. Upon notice, OP appeared through counsel and filed written reply pleading that the construction work of the aforesaid scheme/flats was given to SK Builders. Construction work was to be completed on 16.5.2011 but the contractor did not complete the work and left the job and did not restart the work and the OP vide its resolution No.124 dated 3.3.2014 blacklisted the said contractor and forfeited his bond and security vide letter dated 4.11.2014. New tenderes have been issued and the remaining construction work will be completed soon.

4. In support of her complaint, complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C16 and closed his evidence.

5. On the other hand, learned counsel for opposite party has tendered into evidence affidavit Ex.OP1/A and closed evidence.

6. 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.

7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant applied for LIG flat in Vikas Scheme 51.5 Acre (Bibi Bhani Complex), developed by OP in the area of Guru Amar Dass Nagar, Jalandhar. OP vide letter No.7853 dated 28.1.2010 informed the complainant that she was successful allotee of LIG flat bearing No.29-A, second floor in the aforesaid Bibi Bhani Complex. OP issued allotment letter dated 28.1.2010 Ex.C1 to the complainant. The complainant paid the entire amount i.e. price of the aforesaid flat in installments to the OP. The last installment was paid by the complainant on 10.2.2015 as per terms and conditions mentioned in the allotment letter Ex.C1. In all the complainant paid a sum of Rs.6,52,598/- to the OP but the OP could not deliver the possession of the flat to the complainant. As per terms and conditions of the allotment letter Ex.C1, the OP was to hand over the possession of the flat in question to the complainant on payment of the last installment and the OP was also to execute the agreement of sale in favour of the complainant but up till now the OP neither executed agreement of sale in favour of the complainant nor handed over the possession of the flat in question to the complainant. The complainant came to know that the OP did not raise any construction of flats in question. So, they are not in a position to hand over the possession of the said flat to the complainant. The learned counsel for the complainant submitted that all this amounts to deficiency in service on the part of the OP qua the complainant.

8. Whereas the case of the OP is that the construction work of the aforesaid scheme/flats was given to SK Builders. Construction work was to be completed on 16.5.2011 but the contractor did not complete the work and left the job and did not restart the work and the OP vide its resolution No.124 dated 3.3.2014 blacklisted the said contractor and forfeited his bond and security vide letter dated 4.11.2014. New tenders have been issued and the remaining construction work will be completed soon. Learned counsel for the OP submitted that now the construction of the aforesaid flat in Bibi Bhani Complex Scheme is almost complete and the OP shall be in a position to hand over the possession of the flat in question to the complainant within one month. In this regard, the OP produced noting of the file of the OP with regard flat No.29-A, second floor allotted to the complainant and the concerned J.E in his noting dated 18.7.2016 stated that the possession of this flat would be given to the complainant within one month. However, no affidavit of the concerned J.E. has been filed by the OP. The learned counsel for the OP submitted that there is no deficiency in service on the part of the OP qua the complainant.

9. From the entire above discussion, we have come to the conclusion that complainant was allotted flat bearing No.29-A, second floor in Vikas Scheme 51.5 Acre (Bibi Bhani Complex), in the area of Guru Amar Dass Nagar, Jalandhar being developed by the OP, vide allotment letter Ex.C1 dated 28.1.2010. As per allotment letter Ex.C1, the complainant paid the entire amount/price of the flat in installments i.e. a total sum of Rs.6,52,598/- as per details mentioned in the complaint above. The last installment was paid by the complainant to the OP on 10.2.2015. As per terms and conditions of the allotment letter Ex.C1 i.e. clause No.7, the OP was bound to hand over the possession of the flat in question to the complainant on payment of last installment and on execution of agreement of sale but despite payment of last installment by the complainant on 10.2.2015, the OP neither executed agreement of sale in favour of the complainant regarding the flat in question nor handed over the possession of the flat in question to the complainant. Since then the OP has been enjoying the amount deposited by the complainant regarding the flat in question i.e. Rs.6,52,598/- paid by the complainant to the OP. All this fully proves that OP has been enjoying the fruits of this amount but nothing has been paid to the complainant in the form of interest on the aforesaid amount nor the OP has fulfilled its part of agreement/ contract i.e. handed over the possession of the flat in question to the complainant. The plea of the OP is 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 passed against the OP nor the OP could produce any stay order. So this plea of the OP is not tenable. Further more, it is the contract between the OP and the contractor for the construction/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 work 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.

10. 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 nor the OP has filed affidavit of any authority of the OP to prove that when the OP will be able to hand over the possession of the flat in question to the complainant. 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.6,14,953/- with interest.

11. Resultantly, we allow the present complaint with cost and OP is directed to refund the amount of Rs.6,14,953/- to the complainant with interest @ Rs.9/- % per annum from the date of receipt of the amount 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 Bhupinder Singh

22.07.2016 Member President