BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR.
Complaint No.369 of 2018
Date of Instt. 07.09.2018
Date of Decision: 09.02.2021
Jodh Raj Gupta Aged 78 years son of Shri Vidya Parkash Gupta R/o 304, Guru Teg Bhadur Nagar, Jalandhar.
..........Complainant
Versus
1. M/s Shourya Towers Pvt. Ltd., Through its General Manager Shourya Greens Apartments, Surya Enclave, Jalandhar.
2. M/s Shourya Towers Pvt. Ltd., B-III, Sector-5, Noida G. B. Nagar-201301 (U.P.) India through its Managing Director.
3. M/s Shourya Towers Pvt. Ltd, D-44, Sector -6, Noida-201301 (U. P.)
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Vipin Kanwar, Adv. Counsel for the Complainant.
OPs No.1 to 3 exparte.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that the representatives of OPs approached the complainant and allured him for purchasing a flat with an assurance that they are going to build up very good flats and the value will be increased or otherwise the flat will be of a high quality for comfortable living. The complainant fell into their trap and agreed to purchase the flats. That one of the flat which was purchased by the complainant is having no.B4/002 in Shourya Greens, Near Surya Enclave, Jalandhar. Reference may be given to the allotment letter dated 25.05.2015 in the name of the complainant with regard to the said flat. That as per the detail mentioned in the allotment letter the total value of the flat as settled Rs.27,88,123/-. It is pertinent to mention here that when the present flat was purchased, the previous amounts were adjusted by the OPs with regard to other flat/plots agreed to be purchased by the complainant from them. The previous amounts which were adjusted is as under:-
a) Cheque no.193174 dated 12.09.2005 for Rs.2,09,347/- drawn on State Bank of Patiala.
b) Cheque no.941926 dated 28.03.2006 for Rs.2,00,000/- drawn on State Bank of Patiala.
c) Amount of Rs.2,00,000/- transferred on 17.08.2006 (Transfer of the funds from plots to flats).
d) Cheque no.433744 dated 06.04.2007 for Rs.1,55,891/- drawn on State Bank of Patiala.
Total amount comes to Rs.7,65,238/-
It is pertinent to mention here that the above mentioned amounts were received by the OPs against flat No.F-4/202. That apart from the above said adjustment of Rs.7,65,238/- the complainant further paid total amount towards sale consideration of flat No.B4/002 as per detail given below:
a) Cheque No.000010 dated 27.06.2015 for Rs.5,00,000/- drawn on HDFC Bank.
b) Cheque No.253279 dated 17.07.2015 for Rs.5,00,000/- drawn on State Bank of Patiala.
c) Cheque No.253284 dated 07.11.2015 for Rs.6,50,000/- drawn on State Bank of Patiala.
d) Cheque No.000013 dated 10.12.2015 for Rs.4,00,000/- drawn on HDFC Bank.
Total comes to Rs.28,15,238/-
2. That the OPs are playing foul game with the complainant because a sum of Rs.2,00,000/- which was agreed to be settled of plot is not being accounted for by them. However there is a letter with regard to the said amount of Rs.2,00,000/- issued by the OP and same is dated 17.08.2006 which is attached herewith. That even the complainant has also written a letter dated 10.08.2018 regarding adjustment of Rs.2,00,000/- of plot but they have not given any reply to the same. That the OPs agreed to handover the possession of the flat complete in all respect vide letter dated 25.06.2015 in which it has been clearly mentioned that the possession of the flat will be delivered to the complainant within three months with a grace period of 30 days meaning thereby that the OPs were supposed to handover the possession of the flat in the month of November, 2015 but they failed to do so because the finishing and furnishing of the flat is still pending and OPs are not doing the said job inspite of repeated requests and reminders. Some of the photographs are attached showing the condition of the flat. It is clearly visible from the photographs that sanitary and sewerage pipes are leaking resulting into dampness in the wall as well as in the floor. The wooden work is very inferior quality and one cannot live in such condition as the flat is. Moreso the plaster in the wall from inside and outside of flat is rotten due to dampness and plaster is falling down. The floor of the flat got uneven settlement and rain water used to stand in the rooms just like ponds. Termite has almost damaged the wooden work with regard to this a letter dated 18.07.2018 was also written by the complainant and the same are dated 16.02.2016 and 27.05.2016 and the same were duly received by the OPs. That instead of fulfilling the claim of the complainant, OP wrongly and illegally issued a letter dated 15.01.2018 vide which they have raised a illegal demand of Rs.2,71,796/- for which they are not entitled. That the complainant had been visiting the office of the OPs time and again with a request to complete the flat in all respects and to handover the possession to him and to settle the full and final account but they are not paying any heed to the request of the complainant. Lastly visited the office of the OP on 13.08.2018, but of no use. The complainant is entitled to the rental value of the flat to the tune of Rs.20,000/- per month from November, 2015 till August 2018 total months comes to 34 and rental value till fling of the flat comes to Rs.6,80,000/-. Complainant is also entitled to the rent at the same rent till the final settlement between the parties. Apart from this the complainant is entitled to damage due to the harassment and mental agony, torture in his old age and same is being asses as Rs.10,00,000/-. The complainant is also entitled for litigation expenses and misc. expenses to the tune of Rs.1,00,000/-. That there is a clear cut deficiency on the part of the OP to which they are liable to compensate the complainant in the manner detailed above and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to complete the flat in all respects and to bring it to a livable condition and to handover the possession of the flat to complainant and further to pay a sum of Rs.6,80,000/- as rental value for 34 months @ Rs.20,000/- per month for delayed period till the filing of the present case and to pass such order during the pendency of this case and further till the date of handing over the possession of the flat and Rs.10,00,000/- as damages and further Rs.1,00,000/- as litigation misc. expenses may kindly be passed in favour of the complainant and against the OPs, in the interest of justice, equity and fair play.
2. Notice of the complaint was given to the OPs, but despite service all the OPs did not come present and ultimately, all the OPs were proceeded against exparte.
3. In order to prove his respective version, the counsel for the complainant produced on the file his respective evidence.
4. We have heard the argument of learned counsel for the complainant and also gone through the case file very carefully.
5. The complainant has tendered in evidence copies of photographs Ex.C-1 to Ex.C-7 on the record. Ex.C-8 is copy of allotment letter 25 May 2015 issued in the name of the complainant by OPs. Ex.C-9 is copy of settlement regarding due amount of Flat No. B4-002. Ex.C-10 is copy of letter regarding transfer of fund from plots to flats dated 17.08.2006. Ex.C-11 is copy of letter dated 16.02.2016. Ex.C-12 is copy of letter dated 27.05.2016. Ex.C-13 is copy of letter regarding allotted a unit no.B4-002 in the project Shourya Greens Surya Enclave near Trinity College, Jalandhar in favour of complainant, vide allotment letter dated 25.05.2015. Ex.C-14 is letter dated 18.07.2018 addressed to OPs regarding deficiencies. Ex.C-15 is postal receipt thereof. Ex.C-16 is copy of letter and Ex.C-17 is postal receipt thereof.
6. This fact is clear that the complainant purchased flat no.B4/002 in Shourya Greens near Surya Enclave Jalandhar vide allotment letter Ex.C-8 on the record. The value of the flat as settled as Rs.27,88,123/-. The previous amounts were adjusted by OPs with regard to other flat/plots agreed to be purchased by the complainant from them. The complainant paid total amount of Rs.7,65,238/- and he further paid total amount towards sale consideration of the flat no.B4/002 . The total amount of Rs.28,15,238/- deposited by the complainant with OPs. OPs agreed to hand over possession of the flat in all respects vide letter dated 25.06.2015 in which it is clearly mentioned that possession of the flat will be delivered to the complainant within three months meaning thereby Ops hand over the possession of the flat in the month of November 2015 but they failed to do so because finishing and furnishing of the flat is still pending. From perusal of photographs Ex.C-1 to Ex.C-7 it is clear that OPs failed to provide finishing and furnishing work of the flat as per their promise. Firstly, OPs allotted unit no.F4-202 to the complainant, vide allotment letter Ex.C-8 on the record. Further, OPs addressed letter to complainant Ex.C-10 regarding transfer of the fund from plots to flats. The complainant wrote letters to OPs regarding deficiencies were found in their project. Ex.C-11 is letter dated 16.02.2016, wherein it has been mentioned that : i) water supply not commissioned ii) sewage system is not commissioned iii) electricity supply not commissioned and further complainant wrote another letter dated 27.05.2016 Ex.C-12 to OPs regarding following deficiencies :-
i) There is no water supply
ii) The sewerage system is not connected with the sewer and manhole covers are also not fitted on the manholes.
iii) There is no electric connection.
iv) On the exterior side, rain water pipes have not been fitted and at many places cement plaster is yet to be done.
v) The entrance of the flat is not proper.
From perusal of letters Ex.C-11 and Ex.C-12 the complainant requested OPs to do the needful work of the flat in question but OPs failed to do so as per promise given by them. Further complainant wrote letter Ex.C-14 dated 18.07.2016 to OPs regarding following deficiencies :-
The plaster on the walls from the inside and outside of the flat was rotten due to dampness and was falling.
The floors of the flat had got uneven settlement and rain water was standing in the rooms just like ponds.
Termite has effected the wooden work.
The above said discrepancies on the part of OP shows its deficiency and unfair trade practice. OPs were unable to give any valid reason and justification for unpardonable delay and non-delivery of possession agreed and assured to complainant till date. The delay in delivery of possession per se attract Odium of deficiency, negligence and unfair trade practice envisaged under the CP Act. The delay is tainted with malafide and arbitrariness and purpose behind the curtain is to be prolonged the delivery of the flat in question to complainant, who needs the shelter to live in comfortably. The delay on the part of OPs cannot be condoned because there exist no adequate and sufficient reason for non-delivery of possession promised within scheduled period of time.
7. No document has been placed on the record by Ops showing the demarcation of the plots or giving possession of any plot in favour of any person. In case the possession of the acquired property is not with Ops then it is an unfair trade practice on the part of Ops to launch the scheme and to collect the money from various applicants. The Government had issued letters to various Improvement Trusts in the State of Punjab i.e. Memo No. 6/44/05-4LG2/16729-90 dated 21.10.2005 wherein after giving a reference of the instructions issued vide letter No. 66-I-30II- 83/7070-7090 dated 23.2.1983 directions were given to all the Trusts to allot/sell only such plot/land, the site which is available with the Trust free from all encumbrances and it was further mentioned that before the process of allotment/auction of the site is commenced, Chairman and Executive Officers will certify on the record that physical possession of the site of proposed allotment/auction free from all encumbrances/ obstructions is readily available for onwards transfer to the prospective allottee/buyer and that there is no physical obstruction to start the construction activities.
8. Hon’ble State Commission, Punjab Chandigarh has decided this point in its judgment titled as Karamjit Singh Vs. Jalandhar Improvement Trust & others, decided on 04.12.2015, wherein OPs are directed to refund the amount which has deposited by complainant with interest. Jalandhar Improvement Trust had filed an appeal before the Hon'ble National Commission i.e. Appeal No. 1215 of 2014 i.e. "Jalandhar Improvement Trust, Jalandhar & Anr. Versus Munish Dev Sharma" alongwith F.A. No. 1261 of 2014 i.e. "Jalandhar Improvement Trust, Jalandhar & Anr. Versus Sanjay Gupta" against the order passed by the Principal Bench in CC No. 81 of 2013. In that judgment, the Hon'ble National Commission observed that Ops had invited the applications from the general public and after taking the substantial amount of money issued the allotment letter, however, they had failed to deliver the possession for a period of more than 3 years. A reference was also given to the writ petitions filed by the land owners before the Hon'ble High Court in which order of status quo regarding possession was ordered and it was observed that at the time of launching the scheme, Ops were not in possession of entire land, which amounted to unfair trade practice as defined under Section 2(1)(r) of the Act. After relying upon the judgments in "Bangalore Development Authority Vs. Syndicate Bank" (2007) 6 Supreme Court Cases 711 and "Ghaziabad Development Authority Vs. Balbir Singh", (2004) 5 Supreme Court Cases 65, "Bikaner Urban Improvement Trust Vs. Mohan Lal" 2010 CTJ 121 (Supreme Court) (CP) and "Dilbagh Rai Jarry V. Union of India", 1973 (3) SCC 554 upheld the order passed by the State Commission. It was observed that the appeal is nothing but a gross abuse of process of law and same was dismissed with punitive cost of Rs. 5 lacs and its SLP No. 23471 of 2015 in Civil Appeal No. 9294 of 2015 "Jalandhar Improvement Trust & Anr. Versus Munish Dev" was also dismissed by the Hon'ble Supreme Court. Therefore, the view of this State Commission has been upheld up to the Hon'ble Supreme Court that in case Ops had indulged in unfair trade practice then the refund of the amount taken by Ops is a valid order.
9. From perusal of entire record of the file, it has transpired that the complainant paid whole amount to OPs as per allotment letter. But OPs had not given possession of the flat to complainant even after lapse of more than years from the date of allotment. OPs agreed to hand over the possession of the flat complete in all respects vide letter dated 25.06.2015 in which it has been clearly mentioned that possession of the flat will be delivered to complainant within three months with a grace period of 30 days meaning thereby Ops were supposed to handover the possession of the flat in the month of November 2015 but they failed to do so. OPs were unable to give valid reason for non-delivery of the possession agreed and assured to the complainant. Therefore, in these circumstances the complainant is entitled to seek refund
10. Keeping in view the totality of the facts and circumstances of the case and plethora of judgments mentioned above, the present complaint is allowed and OPs are directed to refund the entire deposited amount of the complainant with interest @ 9% interest from the date of deposit till its actual payment. The complainant is also entitled Rs.20,000/- as compensation for mental harassment and Rs.10000/- as costs of litigation.
11. The compliance of the order be made within one month from receipt of copy of this order. Copies of the order be sent to the parties, as permissible, under the rules.
12. File be indexed and consigned to the record room after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
9th Day of February 2021
(Kuljit Singh)
President
(Jyotsna)
Member
