BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.007 of 2022

      Date of Instt. 11.01.2022

      Date of Decision: 26.05.2023

Paramjit Pawar s/o Sh. Piara Lal, H. No.6, Ajit Nagar, Tanda Road, 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)

                   Smt. Jyotsna                            (Member)

                   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.350-D, Develop Scheme 94.97 Acre (Surya Enclave Extension) measurement 200 yards, vide allotment letter No.852 dated 06.06.2016, against application 091223. The said plot was allotted by the OP in draw on 19.05.2016, against the various application received in the office of OP. Thereafter, the allotment of above said plot, the complainant made the full and final payment of Rs.31,37,500/- to the OP vide receipt No.63431 dated 05.07.2016. The complainant has made a total amount of Rs.34,77,500/- 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 full and final payment of the plot is made on 05.07.2016 for getting the possession of the plot No.350-D, allotted to him, but all the time official of the OP given no proper response regarding the delivery of possession of plot to the complainant and even the complainant requested the OP to refund the total amount received with interest, in the event OP is unable to 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.34,77,500/- 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. 350-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no. JIT/852 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. Rather of their own accord the demarcation plan had been prepared soon after execution of sale agreement. Rather thereafter the complainant vide letter dated 18.12.2019 instead of seeking possession sought NOC only. All the more so during the NOC proceedings due to audit objection of Non-Construction charges as per report forming part of the sale file the possession was complete in all respects and could be delivered at site but the complainant had failed to take the same. 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.350-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.                It is not disputed that the complainant was allotted Plot No.350-D by the OP in Development Scheme 94.97 (Surya Enclave Extension) as per the allotment letter Ex.C-1/OP-1. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.31,37,500/- vide receipt Ex.C-2. The grievance of the complainant is that despite taking the entire amount, the possession of plot was not delivered within scheduled time period. The OP has violated the terms and conditions of the allotment letter. As per the Clause-7 of the allotment letter Ex.C-1, the amenities and facilities were to be completed within 2½ years of the allotment and possession was to be delivered thereafter, but the OP failed to deliver the possession. This clearly shows the deficiency in service and unfair trade practice.

7.                The counsel for the OP submitted that as per the terms and conditions of the allotment, the allottee could take possession after entering into 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, but this contention is not tenable as no notice has been issued to the complainant to take the possession despite application written by the complainant Ex.OP-4 dated 18.12.2019. The notings on Ex.OP-5 shows that there was an audit objection regarding the facilities and amenities on the spot. This clearly shows that possession was never offered to the complainant nor there is any fault of the complainant. Agreement to sell was executed on 24.06.2019. The entire payment has been made. Site plan has also been prepared by the OPs, which is dated 04.11.2019. This shows that there is continuous cause of action as the possession was never offered nor any notice to the complainant was issued to get the possession, thus it is the fault of the OP and the amenities as per notings till 24.02.2020 were not complete as there was an audit objection.

8.                As per allotment letter, the OP has to complete the construction work within 2½ years and thereafter, handover the possession to the allottee complete in all respect i.e. alongwith amenities and ultra-modern facilities with quality of standard construction. The construction work of the flat was agreed to be completed within stipulated period as enumerated in Clause-7 of the allotment letter Ex.C-1, but in this case, the OP has not delivered the possession of the plot to the complainant till today. In this case, the complainant has established on the file that since the day of allotment of letter, the OP has miserably failed to complete the amenities. It is pertinent to make clear here that the complainant has already deposited the entire price money of the said plot, if so, then the complainant is legally entitled to get the possession of the plot. 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 he is ready to give the possession of the plot to the complainant. So, there is clear cut deficiency in service and negligence on the part of the OPs and the complainant is entitled for the relief.

9.                In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to give the possession of the plot to the complainant within six months from the date of receipt of the copy of order, failing which the OP will be liable to refund the price of the plot to the complainant alongwith interest @ 9% per annum from the date of making deposits till its realization. Further, OP is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.30,000/- and 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.

10.              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     

26.05.2023         Member                          Member           President