BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.338 of 2019

      Date of Instt. 22.08.2019

      Date of Decision: 15.12.2022

Saroj Kumari wife of Rajinder Kumar son of Sh. Gurdass, R/o Nafri Colony, Kulam Road, Nawanshahr.

..........Complainant

Versus

Jalandhar Improvement Trust, Jalandhar through its Chairman/Administrator.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Sh. R. K. Arora, Adv. Counsel for Complainant.

                   Sh. Deepak Sidana, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that a LIG flat No.52-A Ground Floor of the JIT under its 51.5 acre scheme known as Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar, which was originally allotted in the name of Varinder Kaur wife of Balwinder Singh for a total sum of Rs.6,26,422/, vide allotment letter No.JIT/7854 dated 28.01.2020 as per terms and conditions enumerated in the said allotment letter. The said flat was later sold out by the original allottee in favour of complainant and the complainant got it transferred in her name in the record OP. The very first payment towards the earnest money of Rs.60,000/- was paid by the complainant before the allotment of plot, which was also acknowledged by the opposite party in the above said allotment letter. As per the clause no.15 of the allotment letter, the allottee was required to deposit subsequent installments from time to time, as such, the installments were paid by the allottee i.e. the complainant, towards the sale price of the aforesaid flat. Thereafter, payment of all the installments towards the sale price of the flat allotted by the OP, the complainant approached the concerned officials of the OP for completion of the paper formalities as described in the terms and conditions of the allotment letter and the OP was required to handover possession of the flat within scheduled time frame, but the possession of the flat was not delivered within scheduled time period of 2 ½ inspite of repeated requests and demands in this regard. Upto the month of July, 2012 all the payments, fees, costs of documentation and interest on the delayed payments towards the sale price of the flat, were made as per the demands raised by the officials of the OP, but the possession of the flat was not given to the complainant even after repeated and continuous requests since July, 2012. On not getting the flat in question within due time, the allottee Varinder Kaur sold out the flat to the complainant and resultantly, it was allottee who got it transferred in the present complainant vide letter bearing memo no.4005 dated 18.10.2016. It was only in the month of May, 2017, the OP had commenced to write offer letters for delivery of possession of the flats to the flat owners. Accordingly, some of the allottees were called by the officials of the OP in its office situated at Skylark Chowk, Jalandhar and got signed the memo of delivery of possession of the flat, meaning thereby, only symbolic possession was given in papers and thereafter couples of days, the complainant was called at the spot for delivery of physical possession of the flat and on visiting at the spot, the allottees found that the works of wooden door, window windowpane, paint and white wash were being carried out and there was no explanation from the concerned officials of the OP for the sub-standard material used in construction and from the various other defects, it was clear that construction material and fittings were not according to the ISI/PWD standards. Furthermore, the said flats are not fit for human habitation as there was no supply of water in the flats and sewerage pipelines were not connected. There was no explanation from concerned officials of the OP. The complainant could not shift there as the said flat was not fit for living. The complainant came across many other allottees for the flats in the said complex who were also complaining about the similar problems. The problems of all most all the allottees were common as the essential infrastructural works as well as basic amenities such as water supply and sewerage connection were not provided when the possession of the flats was commenced to be given from May, 2017. Since these grievances of all the allottees are common, as such, all most all the allottees of this complex of the OP jointly and severally met the concerned officials of the OP many a times to get these basic amenities, but these have not been provided so far. In order to agitate the matter in issue before the concerned higher authorities, the allottees also got highlighted their grievances in the electronic media and in the print media for redressal of their grievances. In this way, the complainant is suffering great financial loss as his hard earned money lying blocked with the OP and the complainant is not getting interest on the entire payment made to the OP whereas the OP used to charge interest @ of more than 18% per annum in case of any delayed payment 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 provide all the promised and proposed amenities in the complex as well as in the said flat in question, which were proposed to be provided as per the Allotment Letter and Brochure of the present scheme especially to ensure the proper and adequate supply of the water and also to ensure proper working of sewerage system and further OP be directed to award penal interest @ 18% on the entire amount deposited for the flat for the period from July, 2012 i.e. proposed date of delivery of flat, till the date all the basic amenities of water supply and sewerage system are provided in the said flat as the complainant could not make use of the said flat even for a single day in view of the fact that the same is not fit for human habitation due to lack of facilities of water supply and sewerage connection and to complete the legal formalities of documentation in favour of complainant, if any, like conveyance deed, agreement of sale etc. Further, OP be directed to pay a compensation of Rs.2,00,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses and to return the entire deposited amount of Rs.6,26,422/- alongwith interest @ 18% from the dates of making deposits till realization of this amount.

2.                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 not maintainable in the present form, as such, the present complaint is liable to be dismissed. It is further averred that the present complaint is time barred, as the same has been filed after lapse of two years from the date of possession. The statue provide that the complaint can be filed within two years, as such, the present complaint is liable to be dismissed. The present complaint is vague, false and frivolous to the knowledge of the complainant as such, the present complaint is liable to be dismissed. It is further averred that the complainant is guilty of concealment of facts. Till date no complaint whatsoever has been filed by the complainant to the answering respondent i.e. OP, which clearly shows that the complainant was satisfied with the conditions at the spot that is why, Rajinder Kumar, general lawful attorney of original allottee namely Varinder Kaur, agreed to sell the above said flat to the present complainant. The said original general power of attorney, clearly states that general attorney is authorized to sell the flat to anybody and accordingly, the said general power of attorney sold the flat to the present complainant on 18.10.2016. Accordingly, a letter was issued to this effect that the name of the complainant has been recorded in the record of the OP as owner of the flat in question and the report was sought for from the Trust Engineer, who made the report dated 05.04.2017 that the flat is OK in all respects and the possession can be delivered to the allottee, but in the instant case, the complainant who purchased the flat, was informed by letter No.JIT/6892 dated 16.05.2017 informing to present the complainant and the complainant was communicated that on 25.05.2017, she come present to take the possession and in case she does not come to take the possession of the flat and then it is presumed that physical possession has been received by the complainant. Meaning thereby the physical possession of the flat in question has been received on 25.05.2017 by the complainant and now the complainant filed the false and frivolous complaint to the knowledge of the complainant, as such, the same is liable to be dismissed. It is further averred that the original allottee purchased the flat from the OP for commercial purpose, which is crystal clear from the preliminary objections No.4 of this reply. As such, this Commission has no jurisdiction to try and decide the present complaint, as the plot has been purchased from the original allottee by the present complainant. It is further averred that the complainant is stopped from filing the present complaint by her own act and conduct. As such, the present complaint is liable to be dismissed. On merits, the factum with regard to allotment of the flat to the original allottee and then its transferred in the name of the complainant is admitted and the complainant has also deposited the entire price of the flat 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 and 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 as well as written arguments submitted by counsel for the complainant very minutely.

6.                It is not disputed that the original allottee namely Varinder Kaur allotted LIG Flat No.52-A, Ground Floor by the OP as per the allotment letter Ex.C2 and after that the original allottee got transferred the aforesaid flat in the name of complainant  Saroj Kumari, which is evident from Ex.C-3. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.6,26,422/- in installments and earnest money of Rs.60,000/- was deposited before the allotment. The complainant has proved on record the copies of the receipts of payment of installments Ex.C-4 to Ex.C-9. The grievance of the complainant is that despite taking the installments and the entire amount, the possession of flat 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-2, the amenities and facilities were to be completed within 2½ years of the allotment and possession will be delivered thereafter, but the facilities and amenities have not been provided by the OP. As per the contention of the complainant, the symbolic possession was given by the OP to the complainant, but no physical possession on the spot was given to the complainant. This clearly shows the deficiency in service and unfair trade practice.

7.                As discussed above the facts of allotment of LIG Flat No.52-A and payment of installments has been admitted and proved by the parties. As per Clause No.7 of the allotment letter Ex.C-2, the OP was supposed to construct the flats and provide the development facilities and all other amenities within 2 ½ years of the allotment and after that the possession was to be delivered. The news publications have been proved on record by the complainant, which are from different newspapers, which have been proved as Ex.CB-1 to Ex.CB-9. Even separate statement of Raj Kumar Janotra (XEN) has been proved which is Ex.CB-10 vide which he admitted that the water has not yet reached the water tank of the flats. The OP has not produced on record any document from where it can be ascertained that the work of water supply and sewerage system etc. has been completed.

8.                The OP has raised a contention that the original allottee purchased the flat from the OP for commercial purpose, as such, this Forum has no jurisdiction to try and decide the present complaint, but this contention is not tenable as the OP has not filed on record any document nor has proved this fact nor has examined any witness to prove that the complainant has got allotted the flat for the commercial purposes. It has been held by the Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U. T., in a case titled as “Usha Rani Vs. Puma Realtors Pvt. Ltd. & Ors.” 2017 (3) CLT 566 that “Purchase of resident flat-whether complainant a consumer held, yes- unless it is proved that he or she had booked the same for commercial purpose, purchaser is a consumer No evidence to show that plot in question was purchased by complainant, by way of investment, with a view to earn profit in future complainant falls within definition of ‘consumer’.”

9.                It has been held by the Hon’ble State Commission, in “Manoj Bagroy Vs. M/s N. H. Matcon” in consumer complaint no.429 of 2019, decided on 07.01.2020 that even if the possession is taken by the consumer, it would be a incomplete and invalid delivery of possession for the want of the amenities. It was observed by the Hon'ble State Commission in the above said case that the OP had not obtained the occupation certificate and completion certificate from the competent authorities to enable them to deliver the complete and effective possession to the allottess. Until and unless they obtain such certificate, it cannot be held that complete possession has been delivered and there is continuous cause of action in favour of the complainant till the obtaining of such certificates by the OP and the complaint filed by the complainant was held to be within limitation. In the present case also only symbolic possession has been given without amenities and without obtaining completion/occupation certificate. Though, the OP has filed on record the documents Ex.OP-3 to Ex.OP-6 which are application for transfer of plot, declarations of seller and buyer, power of attorney. Complainant was asked to take possession vide Ex.OP-6 dated 16.05.2017 but it is not proved that the amenities were provided till that time. So, from all the angles, it is clear that there is deficiency and negligence on the part of the OP and as such, we are of the opinion that after waiting a long time, the complainant became frustrated and demanded the return of the money along with interest, compensation and litigation expenses.                  

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed. From the documents produced on record by both the parties, it is evident that partial possession was handed over to the complainant without the development work and amenities as per the conditions laid down in allotment letter. Therefore, the OP is directed to complete the development work and provide all the amenities and facilities in the flat of the complainant as per the allotment letter and brochure of the present scheme within three months. The OP is further directed to complete the procedure of completion of all the legal documents, failing which OP is directed to return the entire deposited amount of Rs.6,26,422/- 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.

11.              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     

15.12.2022                    Member                                President