BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.44 of 2022

      Date of Instt. 10.02.2022

      Date of Decision: 01.08.2023

Subhash Chander Dawer aged about 75 years son of Des Raj resident of 101 Guru Nagar, Near PPR Market, Mithapur Road, Jalandhar through his power of attorney holder Nakool Dawer S/o Subhash Chander Dawer resident of 101-Guru Nagar, Near PPR Mall, Mithapur Road, Jalandhar.

..........Complainant

Versus

Jalandhar Improvement Trust, through its Executive Officer, Model Twon 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. Puneet Sareen, Adv. Counsel for the Complainant.

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

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant through his Power of Attorney, wherein it is alleged that the OP floated a scheme known as Development Scheme Indira Puram situated at Master Gurbanta Singh Enclave Jalandhar. The complainant had applied for a flat vide application no.66284 under said Development Scheme, Lucky draw was held on 24.08.2008 at Red Cross Bhawan, Jalandhar, OP had promised to give the best design with all ultra modern facilities and complainant was allotted LIG Flat no.126-A, Second Floor, vide letter no.JIT/8423 dated 04.11.2008. The complainant was informed about the allotment by OP vide resolution no.57 dated 24.08.2008 and memo no.8/172/08(9)3MM2/7670 dated 25.09.2008. The letter also mentioned the payments terms and other conditions to be fulfilled by the allottee. The complainant deposited total amount of Rs.3,70,200/- for the above mentioned flat under the terms and conditions as mentioned in the allotment letter. The Complainant paid an amount of Rs.18,000/- as earnest money on 26.12.2007 and other installments totaling Rs.3,52,500/-, were paid thereafter as per the payment plan on the agreement. The said payments were made paid against proper receipts. But even after receipt of the entire payment, the OP did not complete the flat and accordingly possession of the flat was never delivered to the complainant i.e. in sheer violation of the agreement. The complainant has time and again approached the OP requesting them to abide by the terms and conditions of the agreement that is by completing the construction of the flat and its delivery of possession. But every time OP made false promises of completing the construction of the said flat and delivery of its possession in short time. At the time of visiting the site, to the utter surprise of the Complainant, construction was not only incomplete but was also not as per the specifications as promised originally. The complainant had made full and final payment of Rs.3,70,200/- to the OP, for the said flat. It is an established law that the promoter/developer is also bound to disclose the fixation, fittings and amenities including the other provisions that were to be provided for. As evident from the photos exhibited herein, the OP has not made any developments on the spot. More so, the material used for construction is also substandard. OP has grossly violated the terms and conditions and concealed the material facts. There is no street and proper approach road to the property as per the terms and conditions and as advertised. The doors and windows of the said flat are also not in working condition. The work and conduct of OP is unreasonable and unjustified as per the terms and conditions. The OP has failed to perform the contractual obligation and there is an apparent violation of statutory rules, also amounting to gross negligence and deficiency in service. The complainant wanted to shift with his family into LIG Flat no.126-A, Second Floor, as officially allotted to him but is still waiting till today for proper and complete possession, which the OP has absolutely failed to deliver and provide proper amenities to the complainant. The act and conduct of the OP towards the complainant was humiliating, harassing, unethical and non-professional, which tantamount to unfair trade practice. The OP is a gross violator of the terms and conditions of the agreement and has noticeably been carrying out unethical and unfair trade practices by misleading the general public at large, with one of the aggrieved being the present Complainant. Lastly, a month ago the complainant contacted the OP and requested them to refund the amount of Rs.3,70,200/- along with interest and further requested OP not to harass the complainant any more as the complainant already has undergone mental trauma, tension and agony on account of acts, conduct and omissions of the OP. To the utter surprise of the Complainant, representatives of the OP flatly refused to accede to the requests of the complainant and openly asked the complainant to take whatever action he wants to take against the OP. Such act of OP caused more mental trauma and tension to the complainant. As such OP has indulged in unfair trade practices, which has caused prejudice not only to the complainant and general public at large 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 of Rs.3,70,200/- to the complainant alongwith interest @ 10% per annum. Further, OP be directed to pay a compensation of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.33,000/- 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 complainant was allotted Flat No.126 SF development scheme Indra Puram (13.96 Acre) (Master Gurbanta Singh Enclave), Jalandhar and the complainant was handed over the possession before mention flat and possession of flat in all respect complete and the possession was duly received by the complainant. It is further averred that the complainant was handed over the possession vide possession and necessary documents were completed. The flat in dispute it was made clear that the allottee shall be bound by all the terms and conditions as applicable under the Act and rules. The complainant received the possession and issued a receipt about satisfactory condition of flat in dispute in all respects. The enhanced price of flat in dispute was also demanded. It is further averred that the present complaint is hopelessly time bared and has been filed after a lapse about 12 yrs. It is further averred that the claim for monetary compensation filed by the complainant is time barred and hence not maintainable before this Forum. The complainant has mislead this Commission and got issued a notice in the present complaint which is barred by law of limitation and operation of law of estoppel. The complaint is liable to be returned as the complainant has not come to the Court with clean hands. It is further averred that the complainant is guilty of concealing facts and hence not entitled to any relief from this Court. After receiving possession of flat in dispute there is no relation of consumer and service provider between the parties. On merits, the factum with regard to allotment of the LIF Flat No.126-A to the complainant is admitted and the facts regarding payment 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, 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 written arguments submitted by counsel for the complainant and case file very minutely.

6.                The allotment of the flat is not disputed rather it is admitted fact. Now the first point to be decided is as to whether the complaint is time barred or not. As per the contention of the OP, the present complaint is hopelessly time barred and has been filed after a lapse of about 12 years, but this contention is not tenable as the photographs have been proved on record by the complainant as Ex.C10 to Ex.C19. During arguments, the complainant has relied upon the judgments passed by this Commission, wherein this Commission has observed and held that there is no development in the area in dispute and no facilities are available. No amenities as per allotment letter have been provided by the OPs. The complainant has also produced on record his own photographs standing in the Indira Puram area, which show that there is no development as per the conditions mentioned in the allotment letter. Even the Commission has held in many cases, as relied upon by the complainant that the general condition of the area shows that there is no development. 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.

7.                The complainant has made all the payments in advance on the terms and conditions to OP. From perusal of photographs clippings Ex.C10 to Ex C-19, it is clear that OP has not provided the civic amenities and facilities to the complainant. The OP has not brought on the file any documentary evidence to prove his case. This fact is clear from case titled as ‘Jalandhar Improvement Trust Vs. Sohan Lal Kundi’ in FA No.871 of 2016, decided on 19.05.2017 that OP is deficiency in service and liable to refund the deposited amount with interest. This authority is attracted to the fact situation of this case. We are fortified by law laid down by Hon'ble National Commission in case titled as ‘Jalandhar Improvement Trust Vs. Swaran Jeet’ in Revision Petition No. 225 of 2017 decided on 16.03.2017, wherein it has been held by the Hon’ble National Commission that Improvement Trust is still fighting litigation and steps are still to be taken by it for completing the flat and providing the facilities. Non delivery of possession of flat with facilities during the agreed period amounts to deficiency in service on the part of OP. Further, the Hon’ble State Commission U.T Chandigarh, clear this fact in case titled as ‘Gurpreet Singh, Abhishek Lal versus Puma Relators Private Limited and another’ reported in 2015(4) CPJ 91 wherein it has been held that ‘development and amenities were incomplete at the time of offering possession. Possession cannot be said to be valid and legal possession Refund with compensation, litigation cost and compound interest on deposited amount granted.’ The complainant paid substantial amounts of sale consideration to OP before the scheduled date of delivery of possession in this case. It is the solemn obligation of OP to complete the project by the scheduled date with civic amenities. The OP has failed to deliver possession with complete amenities to complainant as was agreed by it as per allotment letter. The complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/flat within the stipulated time period. This fact is also clear from judgment of Hon'ble State Commission, Punjab Chandigarh in First Appeal No.87 of 2020 titled as Jalandhar Improvement Trust versus Mahabir Prasad decided on 10.08.2020, wherein it has been held that "complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/fiat within the stipulated time period Even no completion certificate or occupancy certificate has been produced on record by OP to complete the project/flat within the stipulated time period’. Even no completion certificate or occupancy certificate has been produced on record by the OP, without which the possession cannot be handed over to the buyer.

8.                In view of above discussion and after going through the plethora of judgments, it is clear that OP is not only deficient in service but has also indulged in unfair trade practice. If full and final payment has been received by the OP from complainant, then it is duty of the OP/developer to handover the possession with basic amenities. As such, the complainant is entitled for the relief and thus, the complaint of the complainant is partly allowed and OP is directed to refund the sale consideration amount of the flat i.e. Rs.3,70,200/- to the complainant with interest @ 9% 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.

9.                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     

01.08.2023         Member                          Member             President