BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.162 of 2019
Date of Instt. 14.05.2019
Date of Decision: 24.11.2021
Sandeep Bhagat aged 34 years, S/O Sh. Mohinder Paul, R/O 80-81, FM, Model House, Jalandhar.
..........Complainant
Versus
Jalandhar Improvement Trust, Model Town Road, Jalandhar City Through its Executive Officer.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Smt. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Smt. Harleen Kaur, Adv. Counsel for the Complainant.
Sh. M. S. Sood, Adv. Counsel for the OP.
Order
Harveen Bhardwaj (President)
1. This complaint has been filed by the complainant, wherein alleged that the OP gave an advertisement to provide shelter to needy public with ulterior-modern facilities with quality and standard of construction and accordingly, attracted and allured the general public to apply LIG Flat in the scheme of Bibi Bhani Complex. The complainant submitted application No.69105 on prescribed form to OP along with all the requisite documents and completed and complied with all the requirements. The complainant was allotted LIG Flat No.55-A, First Floor, Vikas Scheme 51.5 Acre, Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar on 16.08.2009, in Lucky Draw dated 16.08.2009 at Red Cross Bhawan, Jalandhar. The information regarding the allotment of LIG Flat was given by OP, vide its letter No.JIT/7851 dated 28.01.2010, to the complainant. The complainant has deposited all the requisite papers for the registration of the application with the necessary fee and other formalities were completed within the stipulated period. The only formality which was to be completed was to give the possession of allotted flat duly completed with all the amenities and ultra-modern facilities with quality of standard construction within 2 ½ years. The complainant paid the whole purchase price of flat in the sum of Rs.5,87,942/- to OP as per the allotment letter dated 28.01.2010. The OP had not given the possession of the flat to the complainant even after protracted follow up and lapse of more than eight years from the date of allotment. OP was unable to give any valid reason and justification for unpardonable delay and non-delivery of possession agreed and assured to the complainant, till date. The delay in delivery of possession per se attract Odium of deficiency, negligence and unfair trade practice envisaged under the provision of Consumer Protection Act, 1986. That delay is tainted with malafide and arbitrariness and purpose behind the curtain is a deceitful, modus operandi on the part of the OP.
2. The complainant has been running from pillar to post for return of the money paid by him to OP, but of no avail. The complainant has been robbed of his hard earned money by OP, which is State within meaning and definition under Article 12 of the Constitution of India. The act and conduct of the OP is absolutely a deficiency in service and unfair trade practice and as such, the instant complaint filed by the complainant with the prayer that the complaint of the complainant may be accepted and OP be directed to refund the price of the Flat i.e. Rs.5,87,942/- along with interest @ 18% p.a. from the date of deposit up to the date of actual payment and further OP be directed to pay compensation to the complainant for causing mental harassment and agony, to the tune of Rs.3,00,000/- and OP be also directed to pay cost of proceeding of Rs.10,000/- and be also directed to pay postal expenses of Rs.1000/-.
3. Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the present complaint is hopelessly time barred under the provision of Limitation Act and hence, liable to be dismissed on this score only. It is further averred that the complainant is guilty of laches and delay, hence the same is liable to be dismissed and further alleged that the present complaint is not maintainable as there is no deficiency in housing service by the answering OP. It is further alleged that the complainant is not a consumer and the OP challenges the very admission of the complaint by this Forum and further alleged that the complainant has not come to the Forum with clean hands and has concealed true facts from this Forum. On merits, it is admitted that the flat in question has been allotted to the complainant and complainant has also deposited the entire price of the flat, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied those of the written statement.
5. In order to prove their respective versions, both the parties produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and also gone through the written arguments submitted by learned counsel for the complainant as well as case file very minutely.
7. It is admitted and proved on record that the complainant was allotted LIG Flat No.55-A, First Floor, Vikas Scheme 51.5 Acre, Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar, vide allotment letter Ex.C-1 dated 28.01.2010. As per the allotment letter Ex.C-1, the OP has to complete the construction work alongwith amenities and ultra-modern facilities within 2½ years of the allotment and the installments of the price of the flat is to be deposited within 2½ years from the date of allotment and thereafter the possession of the LIG Flat is to be handed over by the OP to the allottees and this condition is mentioned in the document Ex.C-1 i.e. Allotment Letter as Condition No.7. It is further mentioned in Ex.C-1 as a note that if the allottee deposited the installments within 2½ years which is the 75% of the allotment money, no interest will be charged. As per Ex.C-2 to Ex.C-7, the complainant has deposited the 1/4th amount of the total amount on 22.02.2010 alongwith agreement fee, cess fee and photography fee. The complainant has deposited the remaining 75% of the amount within 2½ years from the date of allotment as per stipulation and note given by the OP/JIT in Ex.C-1. Despite depositing of the entire amount, the OP has not delivered the possession of the flat to the complainant till today.
8. So far as the contention of the OP that the complaint is not within limitation therefore the same should be dismissed, is not tenable and in support of this observation, we like to refer a pronouncement of Hon’ble National Commission, cited in First Appeal No.986 of 2016, titled as “Mrs. Saroj Kharbanda Vs. Bigjo’s Estates Limited and Anr.”, wherein his Lordship held as under:-
“Period of limitation under Section 24A of the Act starts only, after the seller flatly refuses to give possession of the property. In the present case, also there is no such refusal in writing by the OP to give possession on record.”
9. In the present case, the OP has relied upon the letter dated 11.05.2017 Ex.OP-1. This is the letter asking the complainant to take the possession, but there is no refusal in writing by the OP to give possession on record. Thus as per the law laid down by the Hon’ble National Commission, this is a continuing cause of action and even from the letter Ex.OP-1 the complaint is within limitation.
10. The contention of the OP is that the complainant was asked to take the possession of the flat vide allotment letter dated 11.05.2017 Ex.OP-1, but the complainant himself has failed to come to take the possession as mentioned in Ex.OP-1, therefore the OP is not liable for any default as after completion of the construction they have asked the complainant to take possession nor the agreement to sell was ever got entered by the complainant, is not tenable. As per Ex.C-1 the flat was allotted as per letter dated 28.01.2010, the entire amount was paid up to 24.07.2012 and during the period of these five years i.e. from 24.07.2012 till 11.05.2017, no efforts were made by the OP to handover the possession as per condition mentioned in Ex.C-1. The amount for executing the agreement to sell has already been deposited by the complainant. Till 11.05.2017, the complainant was never asked to take possession and execute the agreement to sell. The OP has also not produced on record any document to show that this letter dated 11.05.2017 was ever posted to the complainant or was ever received by him and the complainant intentionally did not come to take possession. It cannot be presumed that a person who deposits the required amount of Rs.5,87,942/- and will not opt to take the possession from the OP. It can also not be assumed that he will prefer to go into litigation with OP instead of taking possession from the OP.
11. From the record it is clear that the OP has failed to handover the possession till today i.e. after 10 years of allotment and after 8½ years of depositing the entire price money of the flat. The contention of the OP is that the OP/JIT is not deficient as the entire construction has been completed alongwith all the amenities and ultra-modern facilities. But no document has been produced on record to show that within the stipulated period of 2½ years, the OP has completed the construction, since the entire price money has already been deposited as per stipulation of the allotment letter and the OP has failed to deliver the possession within the stipulated period, therefore the complainant is entitled to get the possession of the flat and live therein to enjoy the feeling of his own home. The complainant has been deprived by the OP for long 10 years from this enjoyment, which is clear cut deficiency and negligence on the part of the OP, therefore the complainant is entitled to get the refund of the money i.e. Rs.5,87,942/-. We are supported with the law laid down by the Hon’ble Supreme Court, bench comprising of Mr.Justice D. Y. Chandrachud and Justice Hemant Gupta, has held that “the buyer cannot wait indefinitely for possession of the flat for delay in handing over the possession for over seven years.” Further, it has been held by the Hon’ble Chandigarh State Consumer Disputes Redressal Commission, cited in 2017 (2) CLT 608, wherein his Lordship held as under:-
“In instant case, material violation on the part of the builder in not handing over possession by the stipulated date, the complainant can seek refund.”
12. We find there are much substances in the argument of learned counsel for the complainant as the OP failed to deliver the possession for a such long time, therefore, we are of the considered opinion that the complainant is entitled for the relief claimed and accordingly, the complaint of the complainant is partly allowed and OP is directed to refund the price of the flat i.e. Rs.5,87,942/- along with interest @ 6% per annum from the date of deposits, till realization and 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 further directed to pay 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.
13. Copies of the order be sent to the parties, as permissible, under the rules. File be indexed and consigned to the record room after due compliance.
Dated Jaswant Singh Dhillon Jyotsna Harveen Bhardwaj
24.11.2021 Member Member President
