BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

 Complaint No.492 of 2019

      Date of Instt. 11.10.2019

      Date of Decision: 30.11.2022

Tirlok Singh S/o S. Gurdyal Singh 478 Greater Kailash Maqsudan, Distt. Jalandhar Punjab.

..........Complainant

Versus

Jalandhar Improvement Trust, Model Town Road, Jalandhar City Through its Executive Officer.

….….. Opposite Party

          Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Smt. Harleen Kaur, Adv. Counsel for the Complainant.

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

Order

Jaswant Singh Dhillon (Member)

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 for apply LIG Flat in the scheme of Bibi Bhani Complex. The complainant submitted application No.71085 on prescribed form to OP along with all the requisite documents and completed and complied with all the formalities. The complainant was allotted LIG Flat No.73-A, Second 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/7991 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. The complainant paid the whole purchase price of flat in the sum of Rs.5,54,974/- to OP. After the complainant had paid the amount Rs.5,54,974/- as it was found that OP had deceived the complainant by misleading and fraudulent advertisement since there was no explanation whatsoever from OP for non-delivery of physical possession with all amenities as per contractual obligation with the promised contractual period. Even after protracted follow up and lapse of more than nine years from the date of allotment, OP was unable to give any valid and satisfactory reason and justification for unpardonable delay and non-delivery of physical possession agreed and assured to the complainant, till date tantamount to deceptive and unfair trade practice deficiency in rendering service and deceiving the complainant. 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 as amended upto date on the part of the OP. The 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 the possession of the flat or in the alternative return of the money paid by him to the OP, but to 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.5,54,974/- 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.2,50,000/- 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 not maintainable under the law against the respondent in the present form and further alleged that the present complaint is barred by limitation. The complainant never demanded or asked the possession of the flat in question and failed to honour the terms and conditions of the sale agreement. However, the JIT asked the complainant to take possession vide Letter No.JIT/7306 dated 23.05.2017 but complainant instead of taking possession has filed the present false and frivolous complaint after lapse of more than two years from the date of letter and the present complaint is not maintainable and deserves to be dismissed. The present complaint does not lie with this Forum. In view of the provisions of Real Estate Regulation and Development Act 2016, whereby the Legislature has framed a Special Statute for adjudication of matters of real estate wherein the buyers of house/flat may approach the Real Estate Regulatory Authorities established under the Act ibid regarding their grievances, the present complaint is not maintainable and is against the letter and spirit of the Act promulgated by the State. The Act states that any person whose complaint in respect of the matter covered under Sections 12, 14, 18 and 19 is pending before the Consumer Forum, State Commission or National Consumer Disputes Redressal Commission on or before the commencement of the Act, it may with the permission of such Forum, Commission as the case may be, with draw the complaint pending before it and file an application before the Adjudication Officer under the new Act. It is further averred that the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the respondent. It is further submitted that the complainant is barred by his own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. 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 submitted that the complaint of the complainant is without merits and 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 the allegations raised in the written statement. 

5.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

6.                We bestowed our thoughtful consideration to the submissions made by learned counsel for the respective parties and also gone through the written arguments submitted by learned counsel for both the parties as well as case file very minutely.

7.                After taking into consideration the respective submission of both the counsel for the parties, we find that the dispute between the parties is only whether the possession of the flat in question is delayed for negligence of the OP or not. The other facts in regard to allotment of the LIG Flat 73-A, Second Floor, LIG Flat under 51.5 Acre Development Scheme, Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar is admittedly allotted to the complainant, vide allotment letter Ex.C-1 dated 28.01.2010. The complainant alleged that as per allotment letter, the OP has to complete the construction work within 2½ years and thereafter, handed over the possession to the allottee complete in all respect i.e. alongwith amenities and ultra-modern facilities with quality of standard construction. The construction work of the flat was agreed to be completed within stipulated period as enumerated in Clause-7 of the allotment letter Ex.C-1, but in this case, the OP has not delivered the possession of the same to the complainant till today.

8.                The plea of the OP is that a letter bearing No.JIT/7306 dated 23.05.2017 sent to the complainant for taking possession of the flat, but the complainant himself did not turn up to take the possession and as such, the complainant himself defaulted by not coming forward to take the possession of the flat as per terms and conditions of the allotment letter. No doubt, the OP has sent the said letter dated 23.05.2017 to the complainant. If we go through the said letter dated 23.05.2017, then we can adjudge without any hesitation that the OP has not mentioned in the letter that the construction work of the flat is totally complete with all amenities and necessity of the life, simply giving offer to take the possession, is not sufficient because as per allotment letter, the other facilities are also to be provided to the allottee, but in this case, the complainant has established on the file that since a day of allotment of letter i.e. 28.01.2010, the OP has miserably failed to complete the construction within a stipulated period of 2 ½ years. It is pertinent to make clear here that the complainant has already deposited the entire price money of the said flat, if so, then the complainant is legally entitled to get the possession of the flat and live therein to enjoy the feeling of his own home, but from that facility, the complainant was deprived by the OP for long time. Even during the pendency of this complaint, the OP has not brought on the file any cogent and convincing evidence, whereby the OP can establish that the construction work of the flat has been already completed and the same is fit for delivery to the complainant. So, in the absence of this type of evidence from the side of the OP, itself shows that the flat in question are still not ready and inhabitable for human being and due to that reason, the actually and physical possession has not been given by the OP to the complainant, which is clear cut 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.

9.                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 accepted and OP is directed to refund the price of the flat i.e. Rs.5,54,974/- along with interest @ 9% 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 one month 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     

30.11.2022         Member                          Member           President