BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.405 of 2018

      Date of Instt. 01.10.2018

      Date of Decision: 13.09.2022

1.       Somansh Aggarwal, aged 29 years, S/O Shiv Rattan Aggarwal,          R/O Vidya Sadan, H. No.2, Windsor Park, Kapurthala.

2.       Kawal Kharbanda, W/O Sh. Vijay Kumar Kharbanda Through         Hitesh Aggarwal S/O Shiv Rattan Aggarwal, R/O Vidya Sadan,    H. No.2, Windsor Park, Kapurthala., General Attorney.

..........Complainants

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City through its Chairman/Executive Officer.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       None for the Complainants.

                   Sh. M. S. Sood, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainants, wherein it is alleged that the complainant No.1 came in contact with complainant No.2 who was allotted flat No.58-A, Second Floor in Development Scheme of Bibi Bhani Complex, LIG Flats, published and advertised by OP to provide shelter to needy home buyers public with ultra modern facilities with quality and standard construction. The complainant No.2 submitted application No.69772 alongwith requisite amount of Demand Draft of Rs.60,000/- dated 28.02.2009 and was successfully in Lucky Draw for allotment of LIG Flats applied. The Lucky draw was organized on 16.02.2009 and the complainant No.2 was allotted Flat No.58-A, Second Floor. The draw was confirmed vide Resolution No.111 dated 07.10.2009 and the same was approved by State Government Punjab vide Memo dated 19.11.2009. The complainant No.1 had entered into an agreement with complainant No.2 for transfer of above said allotted plot to complainant No.1 vide agreement dated 27.04.2010 and also gave general power of attorney dated 27.04.2010 to Hitesh Aggarwal. Consequent upon transfer of Flat in question by OP all the rights interest of allottee legally has been vested in favour of the complainant No.1. Accordingly, the complainant No.1 became allottee of flat in question under OP. The OP had not disputed the payment which was made in respect of the said flat. The complainant No.1 paid the whole purchase price of Flat in the sum of Rs.5,54,974/- to OP as per the allotment letter dated 28.01.2010. The OP had not given the physical possession of the flat to the complainant No.1 after transfer in his name from original allottee complainant No.2 even after protracted follow up and lapse of two years from the date of transfer. 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. Delay in delivery of possession as per se attract Odium of deficiency, negligence and unfair and deceptive trade practice envisaged under the provision of Consumer Protection Act 1986 as amended upto date on the part of the OP. The complainant had been running from pillar to post for return/refund of the money paid by him to OP, but of no avail. All efforts to convince and persuade OP to return amount paid went in vain and OP maintained deafening silence in respect thereto. The OP cannot held back or withhold the hard earned money with itself for its own beneficial advantage and is bond to pay interest and compensation/punitive damages for the loss suffered on account of non-availability and holding back the money of 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 return/refund Rs.5,54,974/- paid/deposited by the complainant with interest @ 18% per annum from the date of deposit upto the date of actual payment to the complainant and further OP be directed to pay Rs.50,000/- as compensation for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses and Rs.1000/- expenses on account of fee of Rs.500/- for making complaint and postal expenses.

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 as the OP has offered the complainant to obtain the possession of the flat in dispute but the complainant had failed to do the needful as required under the law and rules framed therein which govern the working of the OP. It is further averred that the present complaint is not maintainable as the OP is no responsible for any deficiency in service. The OP as per law and rules framed under the law is acting bonafide to provide housing service to the complainant. On merits, all the 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 OP as none has appeared on behalf of the complainant and have also gone through the case file very minutely.

6.                Two complainants namely Somansh Aggarwal and Kawal Kharbanda have filed the present complaint. The complainant No.2 has proved on record the Power of Attorney in favour of Hitesh Aggarwal Ex.C-4. It has been proved on record that the complainant No.2 applied for LIG Flat in Bibi Bhani Complex, vide Ex.C-1 and earnest money of Rs.60,000/- was paid, vide Ex.C-2. Thereafter, the LIG Flat No.58-A, Second Floor was allotted to the complainant No.2/Kawal Kharbanda, vide Ex.C-3. The complainant No.1/Sh. Somansh Aggarwal has alleged that the complainant No.2 had entered into an agreement with the complainant No.1 for transfer of the plot and agreement to this effect was executed between them on 27.04.2010 and pursuant to that agreement, the OP transferred the flat in the name of the complainant No.1, vide transfer letter dated 15.12.2016. The complainant has referred the transfer letter Ex.C-5. Perusal of the Ex.C-5 shows this is the agreement to sell and not any transfer letter allegedly issued by OP. Perusal of Ex.C-5 shows that the complainant No.2/Kawal Kharbanda executed agreement to sell in favour of Somansh Aggarwal regarding the LIG Flat No.58-A, Second Floor, Bibi Bhani Complex and alongwith this, the Will executed by Kawal Kharbanda has also been proved on the record. The complainant No.1 has alleged that he has made all the payments of Rs.5,54,974/- to the OP, which has not been disputed and the receipts have been proved. Perusal of the written statement filed by the OP shows that with regard to the Para No.5, in which the complainant has given the detail of the payment made to the OP, only allegations have been stated to be incorrect, wrong and denied vehemently. This fact has not been admitted by the OP. However, the complainant No.1 has produced on record the account statement Ex.C-6 showing that the amount of Rs.5,54,974/- has been made by him. He has produced on record the receipts Ex.C-7 to Ex.C-17, these receipts include cheques also. Perusal of these receipts shows that all the receipts of payment were issued in favour of Kawal Kharbanda. None of the receipt is in the name of complainant No.1 i.e. Somansh Aggarwal. None of the complainant has appeared in the Commission. No affidavit of the complainant was ever filed in the Commission. Vide separate application, the complainant had sought permission to prove on record the affidavit to prove the documents, which have been exhibited in the complaint itself, but since none is appearing on behalf of the complainant nor the complainants themselves are appearing in the Commission, therefore this application for additional evidence cannot be allowed as it seems that the complainants are not interested to tender their affidavit, accordingly, the application is dismissed. However, since the documents have been produced on record by the complainants and it is well settled law that the documents though not proved by formal proof can be considered by the Court while deciding the case on merits, the documents being the part of judicial file.

7.                The complainants have demanded refund of money on the ground that despite the entire payment received by the OP, the OP is not giving possession to them and the possession has been delayed by them as no amenities and facilities are there as per the allotment letter. The OPs on the other hand found fault in the complainant that they have not obtained the possession of the flat in dispute, despite the offer given by the OP to the complainant, but the OP has not produced on record any letter or any document to show that any letter was issued to the complainant to obtain the possession. There is deficiency in service on the part of the OP.

8.                Thus, it has been proved that the flat was allotted in favour of Kawal Kharbanda/complainant No.2. The complainant No.1 has failed to prove that the flat was ever transferred in his name by the OP. As per record produced by the complainant, the flat is still in the name of the complainant No.2. Therefore, the complainant No.1 is not allottee nor has stepped into the shoes of complainant No.2.

9.                In view of the above detailed discussion, the complaint of the complainant is partly allowed qua complainant No.2 being the owner of flat No.58-A. The OP is directed to refund the amount of Rs.5,54,974 with interest @ 6% per annum to the complainant No.2 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.10,000/-. 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     

13.09.2022         Member                          Member           President