BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.294 of 2023

      Date of Instt. 26.07.2023

      Date of Decision: 07.08.2024

Urmil Tandon aged about 68 years wife of Sh. Adarsh Tandon resident of EK-23, Shiv Raj Garh Panj Peer, Teh. Jalandhar, Distt. Jalandhar.

..........Complainant

Versus

Jalandhar Improvement Trust, through its Executive Officer, Model Town 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. Rishabh Handa, Adv. Counsel for Complainant.

                   Sh. Brijesh Bakshi, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj, (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant was allotted LIG Flat No.137, Second Floor, Indira Puram (Master Gurbanta Singh Enclave), Jalandhar by JIT. The information regarding the allotment of LIG flat was given by OP vide its letter No.JIT/4456 dated 04.09.2006, to the complainant. The complainant made the payment of the said Flat i.e. Rs.4,26,769/- by way of installments. But even after receipt of the entire payment, the OP did not complete the flat and incomplete possession of the flat was forcefully delivered to the complainant. The complainant contacted various officer concerned of OP and requested them either to provide the basis amenities or to refund the amount, but all in vain. The material used for construction is also substandard. The OP has grossly violated the terms and conditions and concealed the material facts. There is no street and proper approach road to the property, the doors and windows of the said flat are also not in working condition. The act and conduct of the OP towards the complainant was humiliating, harassing and non-professional, which tantamount to unfair trade practice 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 refund of Rs.4,26,769/- 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 complaint is not maintainable against the OP under the law. It is further averred that the present complaint is barred by limitation. The complainant took the flat in question on allotment vide allotment letter No.JIT/4456 dated 04.09.2006. Thereafter, the complainant failed to approach the OP for executing the sale agreement or to take possession. It is further averred that the complainant had failed to execute the sale agreement thus default lies squarely upon the complainant and not the OP rather as per clause 6 of the allotment letter, the OP is well within its rights to forfeit the deposited amount and cancel the allotment. It is further averred that the present complaint is not maintainable and is barred under the Law. The present complaint is an abuse of the process of law. On merits, the factum with regard to allotment of the flat to the complainant is admitted and it is also admitted that the complainant paid the amount of the flat to the OP, 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 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 Flat No.137, Second Floor of the development scheme Indira Puram, Master Gurbanta Singh Enclave, Jalandhar was allotted to the complainant, vide allotment letter dated 04.09.2006, which has been proved as Ex.C3. As per the conditions of the allotment letter, the complainant paid the total amount of Rs.4,26,769/- in installments. Earnest money of Rs.18,000/- was also deposited before the allotment. Even the enhanced amount as demanded vide Ex.OP-2/C-15 was also deposited by the complainant. The complainant has proved on record the copies of the receipts of payment of installments Ex.C-5 to Ex.C-14. The grievance of the complainant is that despite taking the installments and the entire amount, the physical possession of the flat, complete in all respect, was not delivered even after repeated and continuous requests. Letter of request has been proved as Ex.OP-3. The contention of the complainant is that standard material was not used by the OP and other civil amenities like proper street and proper approach road to the property and the doors and windows of the said flat are also not in working condition as per the terms and conditions as stated in the brochure and the OP has violated the terms and conditions of the allotment letter. The photocopy of news cutting which highlighted the conditions and progress in the Flat has been proved on record as Ex.C26 and Ex.C45.

7.                The contention of the OP is the present complaint is barred by limitation and hence not maintainable, but this contention is not tenable as the news publication have been proved on record by the complainant, which are from different newspapers and the same have been proved as Ex.C26 and Ex.C45. These news publication shows that the facilities and development in the Indira Puram is incomplete, meaning thereby there is no development at all. Ex.C-46 to Ex.C-61 are the correspondence with the JIT and others by Flat Owners, but OP failed to provide basic facilities. Vide Ex.C-17 all the allottees were asked to take possession failing which Rs.1000/- shall be charged as Chowkidara. Possession was given forcibly, which is evident from Ex.C-16, but it was symbolic. The documents produced by the complainant show that the construction is not complete as per condition of the allotment letter. The OP has not produced on record any photograph or document from where it can be ascertained that the facilities and amenities have been completed. Though, in written statement and rejoinder this fact has been mentioned that possession was taken and the complainant was satisfied after taking the possession, but this possession was not complete possession rather the same was symbolic possession. It has been held by the Hon’ble State Commission, (U.T.) Chandigarh, in a case titled as ‘Sandeep Baweja vs Chandigarh Overseas Pvt. Ltd.’ 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. The OP has not produced the occupation and completion certificate duly issued by the competent authority showing that the basic amenities have been duly provided at the site. Even otherwise, Completion Certificate, as envisaged under section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in Short "PAPRA") is the most essential document, which should have been produced with regard the matter in issue but the same has not been produced by the OP to prove that Flat in question as well as basic amenities in the entire complex have been completed in all respects. 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 as such there is continuous cause of action in favour of the complainant till the obtaining of such certificates by the OP. It has been held by the Hon’ble Supreme Court, in a case titled as ‘Samruddhi Co-Operative Vs. Mumbai Mahalaxmi Construction’ that ‘failure to obtain occupancy certificate is a continuing wrong and the complaint is not barred by limitation rather it is deficiency in service and complaint is maintainable’. Thus, the complaint is within limitation.

8.                The complainant has alleged that the facilities and amenities were not complete and the entire amount was paid by the complainant. As per the allotment letter, the conditions were not complied with by the OP, therefore the fault is on the part of the OP. The OP has alleged that the possession could be taken after entering into sale agreement as per Clause (6) of the allotment letter, but the complainant failed to do so. If the complainant did not comply with the provisions of sale agreement or did not take possession, then the JIT was within its rights to cancel the allotment and forfeit all deposited amount within 30 days from the allotment, then it is the duty of the OP to send a notice to the complainant to take the possession, if the complainant does not turn up for execution of the sale agreement, the OPs can cancel the allotment, but the OP failed to send any notice nor the allotment was ever cancelled.

9.                Thus, the complainant has proved the deficiency in service on the part of the OP. In such circumstances, the complainant is entitled for the relief and the complaint of the complainant is partly allowed and OP is directed to refund the amount of the Flat paid/deposited by the complainant with 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.8000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order and in case, the same is not done within 45 days, the OP shall be liable to pay additional interest @ 3% per annum to the complainant, on the amount of the Flat deposited by the complainant. 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     

07.08.2024         Member                          Member             President