BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.326 of 2016

Date of Instt. 25.07.2016

Date of Decision: 29.05.2018

Anjana Verma wife of Sh. Ashwani Kumar Verma, H. No.WG-366/A, Niwan Suraj Ganj, Jalandhar.

..........Complainant

Versus

1. Secretary, Local Bodies, Chandigarh.

2. The Chairman, Jalandhar Improvement Trust, Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Manuj Aggarwal, Adv Counsel for the Complainant.

OP No.1 exparte.

Sh. DK Sharma, Adv Counsel for OP No.2.

Order

Karnail Singh (President)

1. This complaint is presented by the complainant, wherein alleged that the state in its memo number 6/45/05-3SS2/1670 dated 01.03.2006 passed, the Vikas Scheme 51.5 Acres, (Bibi Bhani Complex) Guru Amar Dass Nagar, Jalandhar. To this effect, a notice was issued for calling application of LIG Flats in the above said scheme. In view of the above offer of the OPs, the complainant applied for a LIG Flat before OP No.2 under general category and vide letter bearing No.JIT/7928 dated 28.01.2010 OPs informed to complainant that a lucky draw dated 16.08.2009 drawn in favour of the complainant and the complainant get the flat bearing No.62-A at ground floor under the said scheme under general category. This fact also endorsed by OPs, vide resolution No.III dated 07.10.2009.

2. That the complainant complied with all the conditions as mentioned in the letter dated 28.01.2010 and complainant as per schedule mentioned letter dated 28.01.2010 made the payment of the said flat to the office of the OP No.2. Last payment was made by the complainant into the office of the OP No.2 on 28.01.2014 of Rs.90,270/-, vide DD No.820538 dated 28.01.2014 in favour of the Chairman Improvement Trust, Jalandhar and the same was duly encashed. After the payment of the said flat, complainant approached OP No.2 number of times to handover the possession of the said flat allotted to the complainant as per the allotment letter dated 28.01.2010, but the OP No.2 failed to do so. The complainant had taken the said amount on loan from the bank and the complainant is burdening of the installments and interest of the said loan. Heavy interest was paid by the complainant on the aforesaid loan amount, for making a payment of loan. Several requests were made by the complainant to the trust to handover the possession of the flat as it was promised. However, it is pertinent to mention that after a period of more than six years, the project is still incomplete and no possession has been handed over to any one. Even the material used to construct the said building is sub standard and there is no hope to complete the project in next five years. Several requests were made to the officials of Improvement Trust by the complainant, but all fell on deaf ears and bear no result. Due installments were duly paid by the complainant with interest even though the Trust was not entitled to interest on any amount as the project was delayed beyond complainant's expectations and possession was not offered to the complainant.

3. That the act and conduct of the OPs, amount to negligence in services. However, due to their failure, complainant suffered a huge losses. Complainant is burdening of the interest amount as well as suffered a lot of tension. Even complainant has also burdening a rent amount, as OPs failed to keep with their promise and fail to provide the possession of the flat in time as promised. After frustrated of the above said things, the complainant sent a legal notice dated 11.05.2016 and again requested to the Trust to handover the possession of the flat allotted to the complainant, within a period of 30 days after completion the said flat, from the receipt of the said legal notice and also pay an amount of Rs.1,00,000/- as compensation on account of harassment and losses suffered by the complainant or to return the amount of Rs.6,68,688/- paid by the complainant along with interest and complainant is also entitled for compensation of Rs.1,00,000/- and litigation expenses of Rs.11,000/-.

4. Notice of the complaint was given to the OPs, but despite service OP No.1 failed to appear and ultimately, OP No.1 was proceeded against exparte, whereas OP No.2 appeared through its counsel and filed reply and contested the complaint by taking preliminary objections that the complainant is neither consumer nor has raised consumer dispute which concerns agreement. The agreement if any stands performed, hence the complaint is liable to be dismissed. It is further averred that vide Clause of 7 of the allotment letter, the cost price of the flat is to be recovered within the period of 2½ years and within the period construction of the flat is expected to be ready, then the possession could be taken after wards and that too after the execution of agreement. Under the circumstances, there is no mandatory condition which absolutely mandates the completion of construction within 2½ years. However, the construction of flat is completed and possession can be taken and further alleged that the performance of the contract having been completed, the complainant is left with no cause of action to file the present complaint and even the complaint is time barred and there is no deficiency in service on the part of the OP. On merits, the contents of para No.1 to 4 are admitted being matter of record, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove the case of the complainant, complainant herself tendered into evidence her duly sworn affidavit Ex.CA along with some documents Ex.C-1 to Ex.C-28 and closed the evidence.

6. In order to rebut the evidence of the complainant, counsel for the OP No.2 tendered into evidence affidavit of Pawan Kumar as Ex.OP/A and closed the evidence.

7. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

8. Admittedly, in this case, the complainant applied for allotment of LIG flat in the said scheme i.e. Bibi Bhani Complex, Guru Amar Dass Nagar, the said Vikas Scheme was floated by the OP No.2 and accordingly, in a lucky draw, flat No.62-A was given to the complainant and accordingly, allotment letter dated 28.01.2010 Ex.C5 was issued to the complainant for depositing of the remaining amount by way of installment and as per Clause-7 of the said allotment letter, the installments will be recovered from the allottee within 2½ years and thereafter, possession will be handed over, but admittedly, the complainant deposited the said installment upto 28.01.2014, though some installments were paid after the schedule time, but as per version of the complainant, the same was deposited with interest and penalty and ultimately, the complainant alleged that he deposited the entire sale consideration amount of the said flat i.e. Rs.6,68,688/-, but the OP miserably failed to handover the possession of the flat within a stipulated period of 2½ years from the date of issuing the allotment letter or from the date of depositing the last installment of the price, admittedly, in this case, the complainant has deposited the entire amount of the flat and last installment was given on 28.01.2014 of Rs.90,270/- and these factum have not been denied by the OP in any way, in the written statement or in the affidavit Ex.OP/A, rather the OP claiming in the affidavit Ex.OP/A that the construction of the flat in issue in the complaint is completed and complainant can take over the possession of the flat on a day and these factum has been also accepted by the OP in the written statement that the flat is ready for delivery of possession, but the plea taken by the complainant in the written statement is contradictory because in para No.11 of the written reply, the OP alleged that the construction of the flat is completed and the complainant can take possession of the flat and defects pointed out will be rectified and further in para No.12 of the written reply, the OP alleged that there was delayed construction of the flat because the contractor ran away leaving the work incomplete. Fresh tenders have since issued the work is nearing completion and thus, there has been neither negligence on the part of the OP nor adopted any unfair trade practice. It is clear from the above reply that in Para No.11, OP alleged that construction is complete and flat is ready for possession, whereas in para No.12, the OP alleged that the work is nearing completion, means the flat is not ready for handing over possession, the said reply filed in the month of September, 2016, so it means till September, 2016, the flats are not ready to deliver the possession to the allottee and as such, the version of the complainant having much force because the OP has to deliver the possession within 2 ½ from the date of the receipt of the last installment of the consideration amount of the flat i.e. on or before July, 2016, as the complainant deposited the last installment on 28.01.2014, but till today the OP has not given any offer that the flat is ready for delivery of possession. So, it means the flat till today is not ready for delivering the possession to the complainant and as such, we find that there is a negligence on the part of the OPs as well as unfair trade practice and deficiency in service and thus, the complainant is entitled for the relief claimed in alternative i.e. refund of the consideration price.

9. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OP No.2 is directed to refund the consideration amount deposited by the complainant i.e. Rs.6,68,688/- with interest @ 12% per annum from the date of last deposited i.e. 28.01.2014, till realization and further OP No.2 is directed to compensate the complainant for mental torture and harassment, by paying a compensation amount of Rs.30,000/- and also 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 Harvimal Dogra Karnail Singh

29.05.2018 Member President