BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR.
Complaint No.113 of 2018 Date of Instt. 19.03.2018
Date of Decision: 09.03.2021
Santosh Khurana aged 77 years wife of late Shri Narinder Kumar Khurana resident of WE-7, Bazar Sheikhan, Tel Wali Gali, near Mai Di Dairy, Jalandhar.
........Complainant
Versus
1. The Chairman, Improvement Trust, Jalandhar
2. Executive Officer, Improvement Trust, Jalandhar.
.....Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Present: - Sh. Vikas Sharma, Adv Counsel for the Complainant.
Sh. Brijesh Bakshi, Adv. Counsel for OP.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that in the year 2009 the complainant has applied for a flat under Bibi Bhani Scheme of 51.5 Acre at Guru Amar Das Nagar, Jalandhar launched by the OPs and she was allotted LIG Flat No.1-A, Ground Floor vide allotment letter No.7832 dated 28.01.2010 for a total sale consideration of Rs.6,26,422/- which included 4% cess, agreement fee and photography charges. The said amount of sale consideration was to be paid in different installments as per the schedule mentioned in the said allotment letter. That as per schedule, mentioned in the allotment letter, the complainant made the entire payment of the said plot to the tune of Rs.6,34,389/- principal sale consideration as per installment amount. Besides that the complainant also paid an amount of Rs.1,05,123/- as compounded interest and Rs.26,701/- as penalty charges on account of delay in payment @ 18% to @ 24% interest per annum on the due amount as and when demanded by OPs. Thus in total the complainant paid an amount of Rs.7,89,685/- to the OPs. The other relevant terms of the said Improvement Trust scheme reads as under:-
(a) That the scheme of the Trust shall be known as “Bibi Bhani Residential Scheme of 51.5 acre.”
(b) The total area of the complex shall be 28 K-9M containing 276 flats in Triple Story building and the plots shall be allotted on lottery basis.
(c) On allotment of the plot, the allottee shall have to deposit 25% of the total cost within 30 days from the date of allotment which will includes 4% Cess for maintenance.
(d) The remaining 75% amount shall be paid after six months in 10 equal monthly installments alongwith interest @ 12% and the first installment shall be payable after six months to the extent of 25% of the actual amount.
That as per clause No.11 of the scheme, if the applicant fail to deposit the installments within schedule time then the OPs trust will charge minimum interest @ 18% per annum on the said delay payment. Rather the Trust can also cancel the allotment of the flat after six months on account of non payment of installments and interest thereon. However, as per Clause 11 (3), the trust can restore the said allotment by charging interest on the delayed payment @ 18% alonwith penal interest @ 20% thus total amounting to overall interest @ 38% per annum on the delayed payment. The complainant paid total amount alongwith penalities for delay in payment of the Flat No.1-A for the sum of Rs.7,89,685/-. At the time of allotment, it was assured by the OPs to the complainant that she will be allotted flat on the ground Floor 1-A within 2 ½ years from the date of allotment by raising construction of the said A-Block. It was further assured that the possession of the said flat will be delivered to the complainant immediately after execution of agreement with the Trust on construction of the flats at the site. That as per the agreed terms of scheme, the complainant has paid the entire payment towards the said flat, till the month of July 2015. But till date no construction whatsoever has been raised by the Trust, what to say about Block –A which has not even been constructed till date. Rather the matter is being prolonged by the OPs for the last about 7 years from the date of allotment i.e. 28.01.2010 on one pretext or the other though the OPs have already received the entire payment as well as interest and penal interest on it without raising any construction. Being frustrated and aggrieved from the deficient and negligent services on the part of the OPs, the complainant has decided to get her money refunded from the OPs and wrote number of letter i.e. dated 26.09.2016, 05.05.2017 and 31.05.2017 duly delivered in the office of OPs vide office diary No.1284, 2515 and 2733 respectively, but all in vain. The complainant also got served a legal notice dated 13.07.2017, but all in vain 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 cancel the allotment of Flat No.1-A Ground Floor allotted to the complainant and to return/refund here entire money to the tune of Rs.7,66,213/- alongwith interest @ 24% per annum from the date of payment till the date of refund.
2. Notice of the complaint was given to the OPs and accordingly, OPs appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable and further alleged that the present complaint does not lie with the Commission. In view of the provisions of Real Estate Regulation and Development Act 2016, whereby the Legislature has framed a Special Statue for adjudication of matters of real estate wherein the buyers of house/flat may approach the Real Estate Regulatory Authorities established under the Act ibid regarding their grievances, the present complaint is not maintainable and is against the letter and spirit of the Act promulgated by the State. That the present complaint is not maintainable and is barred under the law. It may be seen that the complainant is guilty of concealment of material facts and is trying to jump into the bandwagon of other complainants in order to gain from the losses of JIT. That the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the respondent. That the OP is statutory body duty bound under the Punjab Town Improvement Act 1922 to seek the compliance of the statutory provisions. On merits, it is admitted that the flat in question has been allotted to the complainant and complainant has also deposited the entire price of the flat. Rest of the averments of the complainant was denied by OP and it prayed for dismissal of the complaint.
3. In order to prove his case, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some document Ex.C-1 to Ex.C-34 and closed the evidence of the complainant.
4. On the other hand, the counsel for the OPs tendered into evidence two affidavits Ex.OA and Ex.OB and closed the evidence.
5. We have heard the arguments of Ld. Counsel for the Complainant as well as counsel for the OPs and also gone through the case file as well as written arguments submitted by OPs, very minutely.
6. It is evident that the complainant was allotted flat No.1-A, Ground Floor by OPs in scheme floated by them namely Bibi Bhani Scheme of 51.5 Acre for sale consideration of Rs.7,89,685/-, this fact is proved from document Ex.C-3 on the record. The complainant alleged that OPs are not provided the basic amenities to her. The complainant also alleged deficiency in service and unfair trade practice on the part of OPs. She was shocked to know that site of the scheme area was lying in an ignored condition and there was no development at the site in question.
7. On the other hand, the contention of OPs is the OP is ready to allot alternate flat in the same scheme to the complainant in lieu of the previously allotted flat and thus there is no occasion for refund of any amount to the complainant and further submitted that there is no provision in the agreement between the parties or in the Punjab Town Improvement Act 1922 and Rules for refund of the sale money to the successful allottee. More so in the present case, it may be seen that the OP/JIT is ready and offers to allot alternative flat to the complainant in lieu of the Flat No.1-A.
8. From perusal of entire record, it reveals that the OPs not provided the basic amenities to complainant and due to non construction of flats till date the complainant had lost charm of a flat and now the complainant has no interest whatsoever in the said flat and she wants her hard earned money to be refunded to her as the OPs have been charged from the complainant with huge interest @ 18% to @ 24% with penal interest @ 20%, even she wrote letters to OPs dated 26.09.2016, 05.05.2017 and 31.05.2017 for refunded her money, but the OPs failed to do so.
9. Taking into consideration the entire evidence on the record and hearing respectful submissions of counsel for the parties, we conclude that OPs mis-utilized the money deposited by the complainant without completing the construction of the plot as agreed upon. When construction is not completed, then there is no question of delivery of any possession thereof to complainant nor it is likely to be delivered in the near future. Our own State Commission has held in "Vaneet Sood versus Unitech Limited and others", reported in 2017 (1) CLT Page 162-163 that there may be worldwide recession and crunch in the real estate business, but the OPs were bound to fulfill their commitment under the agreement for developing the project and delivering the possession of the flat to the complainants within the agreed time. The force majeure circumstances would not relieve the OPs from their solemn duties to complete the construction within time. We find no such evidence on the record on the part of the OPs to substantiate the alleged circumstances justifying the delay in the construction of the project. The complainant strenuously stressed that no construction has been significantly started by the OPs in this case and as such the complainant stood deprived of their legal right of residence in the plot to be allotted to him within time. We find force in the submission of counsel for complainant on this point. When the significant construction has not yet come up and hence it is taken to be a case of non-start of construction work by OPs only justifying the refund of the deposited amount by complainants with OPs in this case till now. The law laid down by Hon’ble National Commission New Delhi in case titled as Puneet Malhota versus Parsvnath Developers Ltd" reported in CC No.232 of 2014 decided on 29.01.2015, wherein National Commission has held that builder was duty bound to complete the construction in time, irrespective of recession in the market, reduction in the bookings and the alleged default on the part of some of the allottees in not making the payment in time. As per agreement, the complainants were required to pay in the event of delay on their part in making the payment to OPs. National Commission held that logically, if the seller is charging interest from the buyer @ 24% per annum, it should have no hesitation in paying interest at the same rate to him in the event of its failure to complete the construction within time-frame, as agreed upon between the parties. In view of law laid down by Apex Court in Ghaziabad Development Authority versus Chander Bhan Singh, reported in 2004(3) CPJ 20 (S.C) awarding 18% rate of interest per annum over the deposited amount from the date of deposit till date of payment would be reasonable one. We follow the dictum of Apex Court set down in the above authority.
10. In the light of our above discussion, we allow the complaint of the complainant and OPs are directed to refund the entire deposited amount with interest @ 6% per annum from the date of deposit till its actual payment. The complainant is also entitled Rs.10,000/- as compensation including cost of litigation and Rs.5000/- deposited in the Legal Aid Fund of this Commission.
11. The compliance of the order be made within one month from receipt of copy of this order.
12. The copies of the order be sent to the parties, as permissible, under the rules.
13. File be indexed and consigned to the record room after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
9th Day of March 2021
(Kuljit Singh)
President
(Jyotsna)
Member
