Punjab

Ludhiana

CC/20/152

Hem Raj Kapila - Complainant(s)

Versus

Ludhiana Improvement Trust - Opp.Party(s)

Anil Kaushal

19 Apr 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:  152 dated 02.08.2020.                                                      Date of decision: 19.04.2024. 

 

Hem Raj Kapila aged about 76 years S/o. Sh. Garib Dass Kapila, C/o. Kapila Cycle Industry, Gill Road, Ludhiana.                                                                                                                                                     ..…Complainant

                                                Versus

1. Ludhiana Improvement Trust, Ludhiana through its Chairman,
2. Chairman/Executive Officer, Ludhiana Improvement Trust, Ludhiana.

…..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Rahul Kaushal, Advocate.

For OPs                         :         Sh. Rajneesh Lakhanpal, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Shorn of unnecessary details, stated, the facts of the case are that the OPs invited application for allotment by way of public draw under Shaheed Bhagat Singh Nagar (475 Acre) under the Self Financing Scheme and issued advertisement in various newspapers. The OPs also published a brochure containing terms and conditions for allotment of the flats, which was sold to the complainant. As per condition No.11 of the brochure, these flats were to be constructed within 30 months and thereafter, the possession of the flats was to be handed over to the allottees.

                   The complainant stated that vide Form No.003810, he applied for allotment of HIG 108 and HIG Super 54 Multistory Semi finished flat to be constructed in Rajeev Enclave, Shaheed Bhagat Singh Nagar under Self Financing Scheme on 26.02.2005 and deposited Rs.1,50,000/- vide receipt No.38092. The complainant was successful in draw of allotment of flats held on 29.04.2005 and the OPs allotted HIG Flat No.606-C vide application form No.3810 under the Development Scheme of Shaheed Bhagat Singh Nagar (475 Acre) in favour of the complainant. As per schedule of payments of the flat, the complainant had to deposit the cost of flat by way of installments amounting to Rs.14,60,000/- as per memo No.LIT-SB-2592 dated 10.08.2005. The Ops executed an agreement of sale dated 21.06.2006 in favour of the complainant regarding allotment of flat No.606-C. The complainant sent Rs.2,74,150/- vide demand draft No.100638 dated 04.10.2005 drawn on Bank of Punjab Limited, which was returned back on account of delay vide memo No.6412/16.11.2005. Subsequently, the delay was condoned vide Memo No.5/89-06/12SS2/3328 dated 02.05.2006 Rs.5,03,110/- vide receipt dated 04.05.2006. The complainant further stated that he made the payment of installment of Rs.2,19,000/- vide draft No.468083 dated 07.09.2006 drawn on Centurion Bank of Punjab Ltd. The complainant again went to deposit the draft along with banker cheque bearing No.470500 dated 07.03.2007 of Rs.2,19,000/- drawn on Centurion Bank of Punjab Limited but the official of the OPs refused to accept the same. The complainant sent letter which was received on 26.03.2007 and subsequently on 26.04.2007, the OPs sent letter vide Memo No.2643 dated 26.04.2007 informing the complainant regarding stay over the flats by Civil Courts due to which construction work has not been stated. On 11.12.2006, the Executive Engineer ordered that till further orders the receipt of installments were deferred and that after getting the stay vacated they will sent new reschedule of installments to be deposited. According to the complainant, he many times visited office of the OPs to deliver the possession of allotted flat and for issuance of fresh schedule of installments but they failed to do so nor they accepted the balance payments and even failed to disclose the status of the flat. The complainant further stated that in this scheme, total 162 flats were to be constructed out of which construction work of only 21 flats including his flat was stopped by the OPs due to court orders. Out of 141 flats, possession of 95 flats has been handed over to the allottees and only 46 flats are still lying vacant. The complainant along with some other allottees is suffering due to negligence, carelessness and deficiency in service of the OPs. The complainant many times approached the OPs to hand over possession of flat but to no effect.  However, the complainant is ready to make balance payment in installments subject to issuance of fresh schedule and delivery of possession of the flat. The complainant issued legal notice dated 12.06.2020 upon the OPs but no reply was received. Hence this complaint whereby the complainant has prayed for issuing direction to the OPs to hand over the vacant possession of constructed flat No.606-C under the Development Scheme of Shaheed Bhagat Singh Nagar (475 Acre) to him after accepting remaining installments rescheduled or to issue flat to the complainant in other scheme of the OPs on same terms and conditions along with compensation of Rs.2,00,000/- and litigation expenses of Rs.55,000/-

2.                Upon notice, the OPs appeared and filed written statement and assailed by complaint by taking preliminary objections on the ground of maintainability; lack of cause of action; the complaint is premature etc. The OPs stated that the vacant possession of constructed flat No.606-C under the Development Scheme Shaheed Bhagat Singh Nagar (475 Acre) known as Rajiv Enclave could not be delivered to the complainant due to stay order of the court, in compliance of which the construction work going at the spot was to be suspended/discontinued by the OPs. As such, the delivery of vacant possession of constructed flat No.606-C to the complainant was not possible. The OPs further stated that the complaint has become in-fructuous as the construction work at the spot had already been resumed by them and fresh schedule of 2021 regarding payment of installments of balance sale consideration had already been issued by them to the complainant. Even the complainant had also deposited amount of two installments on 04.02.2021 and 08.08.2021.

                    On merits, the OPs reiterated the crux of averments made in the preliminary objections and facts of the case. The OPs have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

3.                In evidence, the complainant his tendered affidavit as Ex. CA and reiterated their averments of the complaint. The complainant also placed on record documents Ex. C1 is the copy of application No.003810 dated 26.02.2005, Ex. C2 is the copy of certificate dated 08.09.2005 issued by Bank of Punjab Ltd., Ex. C3 is the copy of agreement for sale, Ex. C4 is the copy of cheque of Rs.2,74,150/- dated 04.10.2005, Ex. C5 is the copy of Memo No.6142 dated 16.12.2005, Ex. C6 is the copy of memo No.3328 dated 27.04.2006, Ex. C7 is the copy of particulars of payment dated 04.05.2006, Ex. C8 is the copy of particulars of payment dated 07.09.2006, Ex. C9 is the copy of cheque of Rs.2,19,000/- dated 07.03.2007, Ex. C10 is the copy of letter of the complainant, Ex. C11 is the copy of memo No.2643 dated 26.04.2007, Ex. C12 are the copies of postal receipts, Ex. C13 is the copy of particulars of payment dated 04.02.2021, Ex. C14 is the copy of particulars of payment dated 18.08.2021, Ex. C15 is the copy of report of Canara Bank dated 05.02.2022 and closed the evidence.

4.                The OPs failed to adduce any evidence despite grant of sufficient opportunities including last and final chance and imposition of costs of Rs.500/- and as such, evidence of the OPs was closed by order vide order dated 28.03.2023.

5.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply produced on record by both the parties.

6.                In the present case, it is not disputed that the complainant on 26.02.2005 applied for allotment of plot in Rajeev Enclave, Shaheed Bhagat Singh Nagar, Ludhiana under Self Financing Scheme vide Form No.003810  Ex. C1 applied for allotment of plot with OPs by depositing Rs.1,50,000/- vide receipt No.38092 and the OPs allotted flat No.606-C in draw of lots on 29.04.2005. In this regard, an agreement for sale Ex. C3 dated 21.06.2006 was executed by the OPs in favour of the complainant. As per agreement to sale Ex. C3, the complainant had paid Rs.3,65,000/- to the OPs and had to pay remaining Rs.10,95,000/- by installments as per schedule of payments. The complainant deposited Rs.2,74,150/- on 04.10.2005 vide copy of cheque Ex. C4 and deposited Rs.2,19,000/- on 07.03.2007 vide copy of cheque Ex. C9.

7.                The complainant in his complaint stated that he tried to deposit the remaining installments with the OPs but they refused to accept the installments on the ground that due to grant of stay by the Civil Court, the construction work at the spot had been suspended/discontinued by the OPs and they are unable to deliver the vacant possession of the constructed flat to the complainant. The OPs in their written statement had admitted the factum of suspension of work due to stay order and their inability to deliver vacant possession to the complainant and further annexed document Annexure-R1 dated 26.04.2007 (not exhibited by the OPs) = Ex. C11 in this regard. However, the OPs annexed document Annexure-R2 dated 06.01.2021 (not exhibited) on the file stating that after disposal of the case, the construction work of the flats has been started and further asked the complainant to deposit the installments as per schedule. Thereafter, the complainant as per new schedule of payments deposited Rs.2,19,000/- each vide invoice dated 04.02.2021 Ex. C13 and 18.08.2021 Ex. C14 respectively. As such, in all the complainant had deposited Rs.12,96,150/- with the OPs till 18.08.2021. In their written statement, the OPs have stated that the construction for plot No.606-C is yet to be complete and only thereafter, the vacant possession of the same can be delivered to the complainant. As such, it is not disputed that till date the possession of plot No.606-C has not been handed over to the complainant despite receipt of huge amount of Rs.12,96,150/- from the complainant. Even the OPs have failed to produce any field report regarding construction work on the spot nor the OPs have adduced any evidence despite grant of sufficient opportunities. Moreover, the OPs never made any  communication with the complainant from 26.04.2007 till 06.01.2021 for informing him about the progress of the construction work at the site nor informed the complainant regarding fate of the case pending before the Civil Court and regarding vacation of stay order. Hence the OPs have adopted unfair trade practice for causing such unexplained delay of about 14 years from 2007 to 2021 and during this period the OPs have made full use of money so deposited by the complainant with them. Thus the complainant had to suffer due to deficiency in service and unfair trade practice on the part of the OPs.

8.                In this regard, reference can be made to Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and others Vs DLF Southern Homes Pvt. Ltd. & others (2020) 16 SCC 512, whereby the Hon’ble Supreme Court of India has held that “failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency.” Further, it has been held by the Hon’ble Supreme Court that “in case of gross delay in handing over possession by builder beyond contractually stipulated period, flat purchaser is entitled to just and reasonable compensation for such delay and such compensation not constrained by terms of rate which is prescribed in an unfair bargain.

                   As such, after perusing the documents on record, this Commission is of the view that the complainant is entitled to compensation for deficiency of service and unfair trade practice on the part of the opposite parties. The provisions of the Consumer Protection Act enable a consumer to claim and empowers the Commission to redress injustice done to the complainant. The amount of compensation can be determined by taking into facts and circumstances of each case and also mitigating circumstances that may arise in favour of the opposite party as well. Reference can be made to 2020(3) Apex Court Judgments 27 (S.C.) in DLF Home Developers ltd. (Earlier known as DLF Universal Ltd.) & another Vs Capital Green Flat Buyers Association Etc. In these set of facts and circumstances, it would be just and appropriate if the opposite parties are directed pay a composite compensation of Rs.1,00,000/- to the complainant within 30 days from the date of receipt of copy of order failing which the opposite parties shall be further held liable to pay interest on the said amount @8% per annum from the date of order till actual payment.

9.                As a sequel of above discussion, the complaint is partly allowed with direction to the opposite parties to pay a composite compensation of Rs.1,00,000/- to the complainant within 30 days from the date of receipt of copy of order failing which the opposite parties shall be further held liable to pay interest on the said amount @8% per annum from the date of order till actual payment. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

Announced in Open Commission.

Dated:19.04.2024.

Gobind Ram.