BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.498 of 2019

      Date of Instt. 14.10.2019

      Date of Decision: 03.07.2023

Rajiner Kumar Aggarwal, 70 Years S/o Sh. Manga Ram Aggarwal, 155-Aman Nagar, Tanda Road, Jalandhar.

..........Complainant

Versus

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

….….. 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.LIG No.109, Block-A, Ground Floor, Development Scheme, Indira Puram (Master Gurbanta Singh Nagar), Jalandhar to the complainant vide allotment No.JIT/4190 dated 04.09.2006 against her application no.31731. The said plot was allotted by the OP under the draw against various applications received in the office. After the allotment of the said LIG flat, the complainant complied all the terms and conditions mentioned in the allotment letter, whereas the OP was to provide various facilities viz gas services and other facilities in the flat which was given in possession to the complainant. As per the terms and conditions, the complainant deposited total amount of Rs.5,69,875/- which includes basic value of flat announced gas facilities charges, enhancement charges and interest of delayed payment of installment, but the OP failed to deliver the possession of the said flat to the complainant upto 14.10.2009 i.e. the date fixed for the delivery of the possession inspite of receiving the full and final payment from complainant. The complainant is visiting the office of the OP for last 9 years and contacted the officials of the OP in their office to know the real/factual position of the flat but all the time official of the OP given no proper response and even complainant requested the OP to refund the amount received. The complainant served a legal notice upon the OP through her counsel, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of Rs.5,69,875/- with interest and further OPs be directed to pay a compensation of Rs.1,00,000/- 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 complaint of the complainant is not maintainable under the law against the respondent in the present form under the law. It is further averred that the complainant is a defaulter and he has flouted the terms and conditions of allotment letter and failed to enter into any sale agreement with the opposite party regarding the flat in question and rather he miserably failed to deposit the due price (enhancement) of the flat in question and thus the present complaint is not maintainable. It is further averred that the present complaint is barred by limitation. The complainant took the flat in question on allotment vide allotment letter no. JIT/4190 dated 04.09.2006. The construction of flat in question was completed by the OP as per the allotment letter conditions and thereafter the complainant was informed by Letter No.JIT/3512 dated 11.09.2009 that the work of construction of the flats is complete and the possession of the Flat No.109-A FF can be taken within 30 days from the date of the letter on account of failure to take possession the allottee complainant shall have to pay fee of Rs.1000/- per month. It was further informed therein that the allotment of the flat in question was made vide Letter No.JIT/4190 dated 04.09.2006 however vide Resolution No.107 dated 29.06.2009 the Trust has increased the price of the Flat by Rs.66,066/- and the increased amount must be deposited within 9 months from the date of the letter as per schedule of installment conveyed in the same. It was further made clear that if he fails to pay the amount of enhancement then as per Government instructions and terms and conditions of the allotment letter no. JIT/ 4190 dated 04.09.2006 the Trust shall be within its rights to recover the aforesaid enhancement price along with interest, penal interest and penalty etc. and along with cess charges. Thereafter the complainant has disappeared for last more than 10 years and never approached the opposite party with regard to any grouse or grievance with regard to any facility or non delivery of possession etc and thus the present complaint is barred by limitation. It is further averred that the complainant has recklessly with total false pleadings and based on untruth filed the present complaint with an allurement of seeking the refund of the sale money whereas there is no such occasion at all. The complainant has not approached the Forum with clean hands and has concealed the facts from the Forum. In fact the complainant has misrepresented the facts with a view to unlawfully gain by misguiding not only the OP, but the Forum too by the misstatements. The complainant failed to enter into sale agreement as per allotment conditions and failed to deposit the enhancement. It may be seen that the complainant was asked in written to take the possession of flat No.109 FF Indira Puram Scheme from the OP and to pay the enhancement amount as per terms and conditions of the allotment letter vide Letter No.JIT/3512 dated 11.09.2009, but he failed to comply with the same and rendered the allotment itself redundant and liable to be cancelled and the deposited amount forfeited. However, now to avoid the forfeiture of deposited amount and cancellation of allotment he has filed the present vague complaint with false grievances of alleged non-delivery of possession and non-providing of facilities. The complainant fully being aware of the condition of the Flat and the status of works at site and after being fully satisfied with the same did not lodge any protest. If throughout the period he was not delivered possession with the condition of the flat or facilities at site being satisfactory then he should not have sat silent for 10 years and rather he never complained nor sought any clarifications throughout which clearly shows his unwillingness to take possession and rather to seek refund on flimsy false and impermissible grounds. However, it is worthwhile to mention here that the alleged deficiency in providing facilities as claimed in the complaint is not maintainable because all the facilities as far as the part of Trust is concerned have been duly provided however the maintenance thereof as per the conditions of allotment is upon the Registered Body to be formed by the allottees/vendees of the Flats before taking possession from Jalandhar Improvement Trust as per the Sale Agreement. Thus the complainant has no locus standi to file the present complaint as despite being one of the original allottee he and other allottees had failed to form the registered body for the maintenance as per conditions of allotment. However, it is worthwhile to mention here that the alleged deficiency in providing facilities as claimed in the complaint is not maintainable because all the facilities as far as the part of Jalandhar Improvement Trust is concerned were duly provided though the maintenance thereof as per the conditions of allotment is upon the 'Registered Body' to be formed by the allottees of the Flats before taking possession from Jalandhar Improvement Trust. Moreover as per the conditions of the allotment possession was to be delivered by the Trust in Semi Finished Condition to the allottee on "As is Where is Basis". Thus, it may be seen that the complainant in order to avoid his liability to maintain the flat intentionally did not take possession at site despite being offered also did not pay the enhancement amount and rather got filed the present frivolous complaint after so many years of allotment. Now, as regards the facilities promised to the allottees, it may be seen that all the civil works were duly completed and provided as per allotment Terms and Conditions. As regards the LPG System, the said system is not available in the vicinity or the City as yet thus the same not provided. Furthermore, as per the conditions of the agreement possession of semi-finished flat was to be delivered by the Trust to the allottee on "As is Where is Basis". It is also part of the agreement that the Trust shall not entertain any complaint whatsoever regarding the cost of flat, its design and quality of material used, workmanship or any other defect. It was further agreed that the allottee/ vendee agrees and undertakes not to make such complaint/ request aforesaid and shall accept the possession of the flat on "As is Where is Basis". The allottee/allottees being bound to maintain the flat individually and the premises by forming a 'Registered Body. But till date despite the fact that most of the allottees took possession of their respective flats in the year 2009-10 they have failed to form the 'Registered Body or to maintain the Flats which results in deterioration of the Flats allotted and delivered way back in 2009-10 and now after lapse of so much time false accusations are being levied to get undue and unlawful advantage. Thus, it may be seen that there has been no delay in the construction or deficiency in services or maintenance as far as the OP is concerned. Now, if the complainant or for that matter any other allottee do not take possession or takes the possession and does not maintain it or the flat lies closed for so many years at site then Jalandhar Improvement Trust cannot be held responsible for that as it is not to maintain the allotted flats of which either the possession has been taken or is not being taken by the allottee with any malafide intention of ultimately accusing the Trust or the officials of Trust for deficient service. Thus the present complaint deserves to be dismissed on this short score alone. It is further averred that the present complaint does not lie with the learned Forum. In view of the provisions of Real Estate Regulation and Development Act 2016, whereby, the Legislature has framed a Special Statute for adjudication of matters of real estate wherein the buyers of house/flat may approach the Real Estate Regulatory Authorities established under the Act ibid regarding their grievances, the present complaint is not maintainable and is against the letter and spirit of the Act promulgated by the State. The Act states that any person whose complaint in respect of the matters covered under Sections 12, 14, 18, 19 is pending before Consumer Disputes Redressal Forum, State Commission or National Commission established under Section-9 of Consumer Protection Act 1986 on or before the commencement of the Act, may with permission of such Forum Commission as the case may be withdraw the complaint pending before it and file an application before the adjudicating officer. Thus keeping in view the letter and spirit of the Legislature in framing the special Act the complainant may be directed to withdraw the instant complaint with liberty to approach the Authority under the Act ibid. It is further averred that the present complaint is not maintainable and is barred under the Law. It may be seen that the complainant is guilty of concealment of material facts and is trying to jump into the bandwagon of other complainants in order to gain from the losses of Jalandhar Improvement Trust, although she is not entitled to any kind of relief. Thus the present complaint is 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 respondent. The present compliant is a clever design of the complainant to gain and earn profits from the misery and losses of the OP/Jalandhar Improvement Trust. It may be seen that the complainant defaulted and did not turn up to take possession of the Flat rather complainant has filed the present false and frivolous complaint concealment of facts to seek refund of the sale money and other facilities. It is further averred that there is no provision in the Agreement between the parties or in the Punjab Town Improvement Act and Rules for refund of the sale money to the successful allottee. Law and justice are based on facts of every case measured on the anvil of pleadings and proof and not imaginations or things heard by the complainant or person bringing up a case which in fact never happened to that person herself. The complainant is not entitled to any relief and the present complaint filed by misrepresentation and concealment of facts from the Forum is liable to be dismissed with exemplary costs. It is further averred that the complainant is barred by his own act, conduct, laches, delay and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. On merits, the factum with regard to allotment of the flat to the complainant is admitted and the facts regarding payment to the above said flat to the OP is also 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 not filed by the complainant. 

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 Flat No.109, Block-A, vide allotment letter Ex.C-1. The complainant has proved on record that he has made the payment of Rs.5,69,875/- for the allotment vide receipts Ex.C-3 to Ex.C-8. The complainant has alleged that the OP failed to give/deliver the possession of the said flat upto 14.10.2009 i.e. the date fixed for the delivery of possession inspite of receiving the full and final payment from complainant.

7.                The contention of the OP is that complaint is barred by limitation. The complainant took the flat in question on allotment vide allotment letter No.JIT/4190 dated 04.09.2006. The complainant was informed vide letter No.JIT/3512 dated 11.09.2009 that the work of construction of the flats is complete and the possession of the flat can be taken within 30 days from the date of letter. The OP has further contended that the complainant failed to enter into sale agreement as per allotment conditions and failed to deposit the enhanced amount.

8.                The allotment of the Flat No.109 is not disputed. The OP has raised the objection of barred by limitation The OP has written a letter bearing No.JIT/3512 dated 11.09.2009 Ex.OP2/C2/1, but the complainant failed to comply with the same and has not deposited the enhanced amount. Then again, the OP wrote a letter dated 05.02.2016 Ex.OP-3, vide which the enhanced amount of Rs.38,622/- was claimed, but the complainant has not deposited the same. 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. 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 accrued to the complainant on 04.09.2006 when the above said flat was allotted and on 14.10.2009 when the OP failed to deliver the possession and on different dates when the complainant visited the office of OP and lastly on 06.06.2019 when the legal notice was served on the OP’. 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.

9.                Perusal of the record and the documents produced by both the parties further show that the allotment was made on 04.09.2006. The last payment was made on 03.10.2006. There is no document or explanation on the record to show that the complainant ever approached the OP after 03.10.2006 for the possession or refund of money as alleged. Even after receipt of letter Ex.OP-2 and Ex.OP-3, efforts were not made by the complainant. The last letter Ex.OP-3 is dated 05.02.2016 and the legal notice was issued on 06.06.2019 after more than three years. The complaint as per Consumer Protection Act can be filed within two years from the date on which the cause of action has arisen, but the complainant has filed the complaint without any request of condonation of delay on 14.10.2019, 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.

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     

03.07.2023         Member                          Member           President