BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.110 of 2019

      Date of Instt. 08.04.2019

      Date of Decision: 05.12.2022

Sukhdeep Singh, aged 42 years S/o Shishpal Singh R/o House No.909, Urban Estate Phase-II, Jalandhar.

..........Complainant

Versus

Jalandhar Improvement Trust, Hotel Skylark Chowk, Jalandhar through its Chairman/CEO (Executive Officer)

….….. Opposite Party

          Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. P. M. S. Narang, Adv. Counsel for the Complainant.

Sh. Brijesh Bakshi, Adv. Counsel for the OP.

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainant, wherein alleged that the OP in the year of 2007, carved out a residential scheme known as Maharaja Ranjit Singh Avenue G.T. Road, Bye-Pass, Jalandhar and allotted plot No.416-A, situated at Maharaja Ranjit Singh Avenue, G. T. Road, Bye-Pass, Jalandhar to the complainant, vide allotment letter No.9590 dated 19.11.2007. The complainant paid all the installments alongwith interest to the OP i.e. Rs.8,69,700/-. The entire sale price of the plot was paid by the complainant alongwith interest to the OP. As per terms and conditions of the allotment letter No.9590 dated 19.11.2007, the OP was to deliver the possession of plot in question to the complainant after 30 months, but despite of making of the entire payment by the complainant to the OP, the OP has miserably failed to handover the physical possession of the said plot to the complainant. The complainant visited the office of OP many a times but the officials of OP kept on lingering the matter on one pretext or another. The complainant wrote request letters to the OP requesting the OP to handover the possession of the plot in question vide different letters dated 30.11.2010, 19.08.2011, 27.12.2011, 17.06.2013. In response, the OP vide letter dated 14.12.2011, demanded an additional amount of Rs.15,600/- on the pretext that there exists additional area of 3 sq. yrd, in the plot in question, at the spot. Thereafter, on 27.12.2011, the complainant demanded site plan of the plot so that complainant could deposit the additional amount of Rs.15,600/- as demanded by the OP. The officials of the OP told the complainant to wait for few more days. The complainant felt shocked when OP vide it letter No.525 dated 12.05.2015 informed the complainant that there exists a SAMADH over the plot in question, as such possession of the same cannot be delivered to the complainant for the time being. The complainant visited time and again the office of OP and requested the OP to handover the vacant physical possession of the plot in question to the complainant, but the officials of the OP always asked the complainant to wait for some time and never gave satisfactory response to the complainant. The complainant wrote a letter dated 19.07.2017 to the OP requesting the OP either to handover the possession of the said plot or to allot some other plot in the same colony. The said letter was duly received by the office of the OP on 19.07.2017. Again on 15.11.2018, the complainant wrote another letter to the office of the OP, whereby the complainant requested the OP to refund him the entire amount alongwith interest, in case the OP is unable to deliver the possession of the said plot. The OP has never responded to the said letter. The said letter has been duly received and acknowledged by the office of the OP but OP has not responded to the genuine request of the complainant. The OP with malafide intentions is withholding the delivery of possession of plot to the complainant and dilly delaying the matter on one pretext or the other. The officials of OPs are harassing the complainant by not handling over the possession of the said plot 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 give possession of plot in question or allot some other similar plot in the same colony to the complainant or in the alternative direct the OP to refund the amount of Rs.8,69,700/- alongwith interest @ 15% per annum from 16.11.2010, till the date of payment by the OP, to the complainant. Further, OP be directed to pay a compensation of Rs.30,000/- to the complainant for causing mental tension and harassment and Rs.10,000/- 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 above noted complaint is not maintainable against the answering respondent in the present form under the law. As per the complaint one of the relief claimed by the complainant is whereby the complainant has sought the refund of Rs.8,59,700/- along with interest @ 15 % per annum from 16.11.2010 and thus the total amount claimed in the present complaint exceeds the pecuniary jurisdiction of the Commission and as such the complaint is not maintainable and the same is liable to be rejected and returned. The present complaint is barred by limitation and the same is not maintainable. As per even the letters and admission of the complainant himself the Jalandhar Improvement Trust had conveyed to him vide letter no.JIT/525 dated 12.05.2015 that after demarcation of plots and streets etc at site it was found that there is a ‘Smadh’ in some part of 2019 the plot in question and regarding the same the possession of the plot cannot be delivered at that time. Thus, it was clear that as and when the ‘Smadh’ shall be removed only then the possession will be delivered to the complainant and impliedly he had accepted the same and now the present complaint after almost three years is not maintainable on account of the admissions and acquiescence of the complainant. The complainant does not have the locus-standi to file the present complaint and the present complaint is not maintainable and deserves to be dismissed. The present complaint is false and frivolous even to the knowledge of the complainant themselves and is not maintainable against the opposite parties. It is further pertinent to mention that as per the terms and conditions of allotment the possession was offered to be taken by the allottee after execution of sale agreement with the Jalandhar Improvement Trust. As per the allotment conditions the possession of the allotted plot no.416-A of 70.5 Acre Development Scheme of Jalandhar Improvement Trust was on ‘As is Where is Basis’ and as per the status at site. The allotment of the said plot was made subject to the aforesaid terms and conditions and on the area under the plot increased or decreased due to any reason the allottee was bound to accept the same and pay accordingly either additional amount for increased area or get refund of paid amount for decreased area as per measurements of the plot at site The allottee/complainant No.1 paid the sale money amount. In the meantime, as submitted in the preceding paras, it was found that there is a ‘Samadh’ in some part the plot and thus it was informed to the complainant that at that time the possession cannot be given. The aforesaid ‘Samadh’ has neither been adjusted in the Scheme nor Exempted from the Acquired area of the Scheme as such the opposite party is making efforts to get the same vacated/removed and as and when the Jalandhar Improvement Trust is able to remove the same then the possession of the Plot can be given to the complainant. The complainant accepted the same and now the present complaint is not maintainable on account of the allotment terms and conditions as well as being barred by limitation. The Opposite Party is a statutory body duty bound under the Act to seek the compliance of the statutory provisions and rules as per law and as per the Act and it cannot be restrained from seeking the deposit of due amounts and compliance of other statutory conditions pertaining to the allotments and charging of prices thereof regarding various plots in its development schemes. The allotments made by the Opposite Party are subject to the provisions of the brochure, allotment letter and the Act, rules and other relevant Government instructions and the allottees/Complainant are also bound by the same. On merits, the factum with regard to allotment of the plot is admitted, but the other allegations as made in the complaint by the complainant are categorically denied and lastly submitted that the complaint of the complainant is without merits and 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 bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and have also gone through the case file very minutely.

6.                It is admitted fact that the complainant was allotted the plot No.416-A, vide allotment letter Ex.C-1 dated 19.11.2007. The payment of Rs.8,69,700/- was made by the complainant in installments on different dates, vide receipts Ex.C-2 to Ex.C-6. As per the allotment letter Ex.C-1, the possession of the plot was to be delivered after 30 months on the payment of the entire amount of the plot, but the OP has not handed over the plot. The complainant wrote letters on 30.11.2010 Ex.C-7, 19.08.2011 Ex.C-8 for the delivery of possession, but the possession was not handed over to the complainant. The complainant again made representation to the OP, vide Ex.C-9 to provide him the site plan, so that he may be able to deposit the enhanced amount and again he moved an application Ex.C-10 to OP on 17.06.2013 requesting to handover the possession, but the OP neither provided him the site plan nor handed over the possession to the complainant.

7.                The contention of the OP that in the year 2015, the complainant was conveyed that there is a ‘SAMADH’ in some part of the plot in question, therefore the possession of plot No.416-A could not be delivered to the complainant and as and when the ‘SAMADH’ shall be removed only then the possession will be delivered to the complainant and the complainant agreed for the same. Therefore, now no relief can be granted to the complainant, but this contention is not tenable as the complainant has deposited the entire amount of the plot including the enhanced amount. On one fine morning, vide letter dated 12.05.2015, vide Ex.C-13 the complainant was informed that there is a ‘SAMADH’ in the plot in question, therefore the possession cannot be delivered. This intimation was given to the complainant after eight years of the allotment of the plot. This is deficiency in service on the part of the OP as they had intentionally got deposited the entire amount of the plot from the complainant and when the entire amount including the enhanced amount was paid, he was informed that there is a ‘SAMADH’. The complainant, vide letter dated 19.07.2017 Ex.C-14 has categorically sought the reasons from the OP that he demanded site plan from the OP, but no information regarding SAMADH was given to him. Similarly, the OP is asking him to deposit the amount of 3 feet of place and now on 12.05.2015 how the SAMADH came into existence on the spot, but no reasons were given by the OP. Even on 25.11.2018, the complainant made a representation mentioning therein about all the representations and letters written to the OP for delivery of the possession of the plot, but till date, the complainant has not been given stie pland and possession nor the alleged SAMADH has been removed. The OP has used the amount of the complainant for eight years knowing about the existence of Samadh on the plot in question. The OP has not even given the alternative plot to the complainant and is harassing the complainant without any reason. If there was a SAMADH, then the plot should not have been allotted to the complainant nor the complainant should have been asked to deposit the amount. This is unfair trade practice on the part of the OP.

8.                We are supported by a pronouncement of Hon’ble State Consumer Disputes Redressal Commission, U. T. Chandigarh, titled as “Sandeep Baweja Vs. Chandigarh Overseas Pvt. Ltd. and Others” 2017 (3) CLT 445 (CHD), wherein his Lordship has held that ‘Delay in possession-refund claimed-Held-it is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer even if the same is made at a belated stage. 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.

9.                Thus, in view of the above detailed discussion, we are of the considered opinion that the complainant is entitled for the relief claimed and accordingly, the complaint of the complainants is partly allowed and OP is directed either to give the possession of the plot in question after removing the ‘SAMADH’ to the complainant or to give him the alternative plot as per the choice of the complainant to his satisfaction within three months from the date of receipt the copy of order, failing which the OP will liable to refund the amount of the plot i.e. Rs.8,69,700/- alongwith interest @ 9% per annum from 16.11.2010 till its realization and further, OP is directed to pay a compensation to the complainants for causing mental agony and harassment, 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.

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     

05.12.2022         Member                          Member           President