BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.390 of 2014
Date of Instt. 07.11.2014
Date of Decision :07.12.2016
Gurpreet Singh age 24 years S/o Sh. Jaswant Singh R/o Bashirpura, Jalandhar. M. No. 98157-08008.
..........Complainant
Versus
Managing Director Niti Shree Infrastructure Ltd., Regd. Office at 78-B, Sector D-2, Group-II, DDA-Flat, Kandoli, Gharoli, Mayur Vihar, Phase-III, New Delhi.
Manager Niti Shree Infrastructure Ltd., Shourya Green, Shourya Towers Pvt. Ltd., Near Trinity College, Amritsar Bye Pass Road, Jalandhar.
.........Opposite parties
Complaint Under Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh.Parminder Sharma (Member)
Present: Sh. Rahul Sharma Adv., counsel for complainant.
Sh. A.P.S. Pathania Adv., counsel for OP No. 1 & 2.
Order
Karnail Singh (President)
1. The instant complaint filed by complainant that flat bearing No. G-2-004 situated at Shoriya Greens, Jalandhar was originally allotted to Rakesh Kumar who had already paid the entire price of the said flat i.e. Rs. 19,89,960/- and later on, complainant has purchased the said flat from Rakesh Kumar in the year 2010 and the said purchase is registered with the opposite party vide first endorsement entered in the name of complainant which is dated 4/1/2013. As per the allotment letter, the terms and conditions of the agreement, the respondent has to deliver the possession of flat to the complainant before 2010. The complainant number of times visited the office of the respondents are making one pretext or the other. As per the terms and conditions of the agreement, the OPs has to deliver the possession before the year 2010. The complainant make the last representation to deliver the possession on 16/4/2010 which was received by the respondent on 19/6/2014. As per the allotment letter and the agreement, the possession has to be delivered by the year 2010 at the most. It is worth mentioning that the allotment letter contains number of penal clauses that if the complainant/ allottee fails to pay the due amount then the interest and fine shall be chargeable by the respondent.
2. That the respondent failed to provide the possession of the property/ flat as per allotment condition and due to which the respondent acted negligently and played unfair trade practice and due to its negligence, the complainant suffered heavy loss. The respondent also used unfair trade practice by receiving the entire amount which was scheduled in the allotment letter but not delivered the possession till date. The complainant has purchased the flat for his own use and occupation and have paid the huge amount of Rs. 19,89,960/- but the respondent has deprived the complainant from deriving fruits of the property till date and the complainant has assessed his loss at the rate of Rs. 10,000/- per month which shall be treated as the fair rental value of the property i.e. if the complainant has rented out the said property then he can easily get Rs. 10,000/- per month from the property and the complainant has been paying the rent for his accommodation where he is residing at the rate of Rs. 12,000/- per month which amounts to Rs. 5,00,000/-. The complainant assessed the cost for negligent services and unfair trade practice by the respondent to the tune of Rs. 1,00,000/-. The complainant due to non delivery of the flat feel harassed in the hands of the respondent and at present, the complainant paying heavy interest to the bank on the amount invested in the property. The complainant has served a legal notice dated 5/8/2014 to the respondent whereby demanding of possession as well as damages but respondent did not bother and as such, instant complaint filed with the prayer that opposite parties be directed to pay compensation of Rs. 5,00,000/- on account of loss for not using the flat as per schedule on account of failure of the respondent to deliver the possession as per schedule and further directed to pay a sum of Rs. 1,00,000/- as compensation on account of mental agony and harassment and unfair trade practice and negligence made by the opposite parties.
3. Notice of the complaint was given to the opposite parties and accordingly both the opposite parties appeared through counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the complaint is not maintainable. The complainant is not the consumer of the opposite parties as defined under the Consumer Protection Act. The complainant as per the record of the opposite parties has not got transferred any flat in his name. The complainant has also not deposited any re-transfer fees to the opposite parties. Therefore, the complainant being not the original allottee of the flat in question is not entitled to be claimed as the consumer under the Consumer Protection Act. Thus being a false and frivolous complaint, the same is required to be dismissed. It is further alleged that the complainant has no locus standi to file the present case. There is no negligence, unfair trade practice or deficiency in service on the part of the opposite parties. The complainant is not the beneficiary of the flat in question nor the same has been got transferred with the permission of the opposite parties in his favour, as such, the complainant has filed a false complaint and further alleged that no NOC has been issued by the opposite parties in favour of the complainant. Moreover, no re-allotment letter has been issued with the endorsement of the opposite parties. The said document produced by the complainant on record is a fictitious document, result of fraud and forgery and from the very outset, it is hereby submitted that such documents do not belong to the opposite parties and the complainant has produced the false and frivolous document. It is further alleged that if the complainant has purchased the flat in question from original allottee, in that event, the complainant was required to produce the copy of the agreement, duly attested affidavits, indemnity bond and the transfer fees to be deposited in favour of the opposite parties. But in this case, the complainant has not produced any such document on record showing that the complainant is the consumer of the opposite parties. It is further alleged that the complaint filed by the complainant is time barred and further alleged that this forum has got no jurisdiction to entertain, try and decide the present complaint even the complaint is false, frivolous and vexatious. On merits, the factum in regard to allotment of the flat in question to Rakesh Kumar R/o Garha, Jalandhar is not denied and even it is also admitted that the said allottee Rakesh Kumar has already paid the price of the flat. It is also admitted that the opposite parties had to deliver the possession of the flat but remaining contents of the complaint are categorically denied and further submitted that the flat was constructed and ready for delivery in the month of April 2011 but original allottee himself has failed to take the possession of the flat as he wanted to sell the flat in question to some other person and lastly prayed that the complaint of the complainant is without merit and the same may be dismissed.
4. In order to prove his case, complainant tendered into evidence his duly sworn affidavit Ex.CW1/A alongwith some documents Ex. C1 to Ex. C6 and closed the evidence and then in additional evidence, the learned counsel for the complainant tendered into evidence supplementary affidavit of complainant Ex. CW1/X alongwith some documents Ex. C7 to Ex,C9 and closed the additional evidence.
5. In order to rebut the evidence of the complainant, counsel for opposite party No.1 & 2 tendered into evidence affidavit of Vijay Inder Pratap, General Manager Ex. OPA alongwith documents Ex. OP1 & Ex. OP2 and closed the evidence.
6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
7. In this complaint, the factum of originally allotment of the flat in question i.e. bearing No. G-2-004 was allotted to Rakesh Kumar R/o H.No.155, VPO Garha, Jalandhar and he had also paid the entire sale consideration of Rs. 19,89,960/- is not in dispute. Even it is admitted by the opposite party that the possession of the said flat is required to be delivered after completion to original allottee Rakesh Kumar who himself failed to get the possession and as such, there is no fault on the part of the opposite party rather it is due to negligence on the part of the original allottee Rakesh Kumar. Apart from that the further case set up by counsel for the opposite party is that the complainant is not a consumer of the opposite party because as per record, the complainant has never purchased the flat in question nor he has got transferred the said flat in his name. Even the complainant has also not deposited any transfer fee to the opposite party and as such, the complainant being not the original allottee of the flat in question is not entitled to claim as a consumer under the Consumer Protection Act. Even the complainant has never sought permission from the opposite party for getting the transfer of such flat in his name. The documents produced by the complainant on record is fictitious documents because same are forged which are never issued by the opposite party. If the complainant has virtually purchase the flat in question from Rakesh Kumar then it is required for the complainant to produce on the file copy of agreement, duly attested affidavits, indemnity bond and receipt of transfer fee whereby deposited and in view of above submission, there is no negligence or unfair trade practice or deficiency in service on the part of the opposite party.
8. We sympathetically considered the learned counsel for the opposite party and find that the opposite party has to establish on the file how and under what circumstances, the documents which was issued even by opposite party are forged and fabricated but no evidence had been produced on the file by the opposite party and as such, we can't considered the documents so produced by the complainant are forged and fabricated and furthermore the complainant alleged that he purchased the flat from the original allottee Rakesh Kumar after making the payment of entire consideration of amount Rs. 19,89,960/- and if any affidavit or other documents while issued by the original allottee Rakesh Kumar in favour of the complainant Gurpreet Singh then the said documents must have been deposited by the complainant with the opposite parties at the time of making endorsement on the backside of the allotment letter Ex. C1, in the manner as under “First endorsement in the name of Applicant Gurpreet Singh S/o. Shri Jaswant Singh”. This endorsement dated 4/1/2013 itself shows that the opposite parties have received the entire documents issued by the original allottee Rakesh Kumar to complainant Gurpreet Singh and then made the aforesaid endorsement which is duly signed by authorized signatory of the opposite party with the stamp of the opposite party firm. The said endorsement is proved on the file by the complainant Ex. C2. Thereafter, the complainant also wrote a letter to the opposite party on 16/6/2014, the same Ex. C3 whereby make a request for delivery of possession for the flat No. G-2-004. In response to letter, the opposite party wrote a letter to the complainant Gurpreet Singh, the same Ex.C8 whereby informed that the possession will be given shortly. Not so, another letter was also written by the opposite party to the complainant Gurpreet Singh which is Ex. C9 which also shows that the opposite party has received the original documents issued by original allottee Rakesh Kumar and thereafter wrote a said letter to the complainant Gurpreet Singh after admitting him as new allottee of the flat in question. It is pertinent to mention here that the opposite party has also admitted that they have received all original papers and transfer papers of flat No. G-2-004 for transferring the said flat in the name of Gurpreet Singh. The said letter is Ex. C7 which is also singed by the authorized signatory. Apart from above documents, the complainant tendered his own affidavit as well as supplementary affidavit to prove that he has purchased the flat from the original allottee Rakesh Kumar and his ownership is admitted by the opposite party but despite admitting the complainant as transfee, the opposite party failed to deliver the possession till today which is required to be deliver in the year 2010. So, it is clearly establish deficiency in service as well as unfair trade practice on the part of the opposite party and thus the complainant is entitled for possession of the flat as well as compensation.
9. In view of above detailed discussion, the complaint of the complainant is partly accepted and opposite parties are directed to deliver the possession of the flat in question to the complainant within the period of two months from the date of receipt of copy of order and further pay compensation for mentally harassment to the complainant to the tune of Rs.25,000/-. 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 Parminder Sharma Karnail Singh
07.12.2016 Member President
