BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.37 of 2015
Date of Instt. 06.02.2015
Date of Decision :23.11.2015
Baldev Singh son of Dhian Singh R/o 216/11, Preet Nagar, Ladowali Road, Jalandhar.
..........Complainant Versus
1. The Chairman Jalandhar Improvement Trust, Jalandhar.
2. The Executive Officer, Jalandhar Improvement Trust, Jalandhar.
.........Opposite parties.
Complaint Under the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.Vipin Kanwar Adv., counsel for complainant.
Sh.SKS Chhabra Adv., counsel for opposite parties.
Order
J.S.Bhatia (President)
1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite parties on the averments that complainant booked a flat in the scheme launched by the opposite parties. The draw was held by the opposite parties on 26.10.2006. As per the draw the complainant was allotted flat No.405-A, 3rd Floor, HIG, Super Development Scheme, known as B.R.Ambedkar Towers, situated at Mohalla Gazi Gulla, Dana Mandi Road, Jalandhar. After draw the opposite parties issued a allotment letter No.JIT-7038 dated 14.12.2006 containing all the terms and conditions including mode of payment. It has been clearly stated in the allotment letter that flat in question consisting of three bed rooms, one lobby, drawing room, dinning room, kitchen, store/pooja room, three toilets, powder room, servant room with attached toilet, balcony and scooter, car parking in the basement and the possession of the said flat was to be delivered by the opposite parties to the complainant on or before June 2009. The complainant made the entire payment in lump-sum against the cost of the flat in question by raising loan from ICICI Bank, near Bus Stand, Jalandhar and there was no default or delay on the part of the complainant and also abided by all the terms and conditions of the allotment letter. The opposite parties failed to adhere the terms and conditions of the allotment letter and failed to deliver the possession on or before June, 2009. The possession of the flat in question was given by the opposite parties to the complainant in the month of October, 2014. There is 63 months delay in handing over the possession of the flat to the complainant. Similarly, flat in question was not handed over to the complainant as per the specifications mentioned in the allotment No.7038 dated 14.12.2006 as the flat is short of store room/pooja room, short of one toilet, short of servant room with toilet. By not handing over the possession of the flat in time and flat is short of above mentioned accommodation, opposite parties have committed a cheating and defrauded the complainant. Entire fault is on the part of the opposite parties and they have failed to adhere the terms and conditions of their own allotment letter. The flat in question and the entire tower is short of basic amenities. Complainant approached the opposite parties and requested them to pay the compensation/damages on account of delivery of late possession of flat in question. There is total 63 months delay and as per market rate complainant is entitled for Rs.10,000/- per month which comes to Rs.6,30,000/-. Complainant also demanded from the opposite parties cost of less accommodation to the tune of Rs.10 Lacs in the flat as mentioned above but opposite parties had not paid any heed to the request of the complainant. Complainant also demanded for damages and compensation on account of mental harassment and agony to the tune of Rs.3,00,000/- but opposite parties are also not paying any heed to the said request also. On such like averments, the complainant has prayed for Rs.19,50,000/- as compensation.
2. Upon notice, opposite parties appeared and filed their written reply raising preliminary objections regarding complaint being false and frivolous, want of cause of action, jurisdiction, not approaching the forum with clean hands etc. They further pleaded that infact, the complainant applied with the opposite party for the allotment of HIG flat which were given name Dr.B.R.Ambedkar Towers. The application submitted by the complainant on 9.10.2006 is for allotment of HIG Flat. Even in the draw, which was held on 26.10.2006, the flat bearing No.405 on third floor, was allotted to the complainant. The complainant applied with the opposite parties for getting the possession of the aforesaid flat on 21.10.2014 and accordingly, an agreement for sale between JIT and the complainant was also executed regarding the flat No.405, 3rd floor, Dr.B.R. Ambedkar Towers and after completing all the legal formalities, the possession of the aforesaid flat was duly handed over to the complainant on 25.11.2014. The complainant himself duly acknowledged that the construction work of the flat bearing No.405-A of Dr.B.R.Ambedkar, Tower is satisfactory in all respect and he also acknowledged that he has taken the possession of the aforesaid flat. Copy of the acknowledgment is attached herewith. The complainant intentionally and deliberately, trying to mis-lead this Forum, by stating that he was allotted HIG Super Flat. The price of both the towers namely Dr.B.R.Ambedkar Tower and HIG Super namely Hare Krishna Tower is entirely differently. In the HIG Super Flat, which was given the name of Hare Krishna Tower, the price of the flat is Rs.26 Lacs and the applicant has to pay Rs.2,60,000/- as earnest money and in the case of HIG Flat in the Dr.B.R.Ambedkar Tower, the price of the flat is Rs.24 Lacs and the applicant has to pay Rs.2,40,000/- as earnest money. The applicant himself paid earnest money of Rs.2,40,000/-. It is pertinent to mention that the location of both the towers is entirely different from each other. It is worthwhile to mention that the plea taken by the complainant that there is a shortage of store room, pooja room, short of one toilet, short of servant room with toilet is totally wrong and mis-leading statement. Due to the clerical mistake it was written HIG Super Flats in the allotment letter whereas the fact is that the complainant was allotted flat No.405-A, 3rd Floor, in the Dr.B.R.Ambedkar Tower, which is only and only HIG Flats, even the complainant paid the amount of HIG Flats and even acknowledged the possession of the aforesaid HIG Flats in a satisfactory condition. The complainant is having no right, title or concern with the HIG Super Flats, which falls within the Hare Krishna Scheme, as such, the complaint is liable to be dismissed on this score alone and the complainant is liable to be sent behind bars for stating wrong facts and trying to mis-lead this Forum, just to extort the money from the opposite parties. They denied other material averments of the complainant.
3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C5 and closed evidence.
4. On the other hand, learned counsel for the opposite parties has tendered affidavit Ex.OW1/A alongwith copies of documents Ex.OW2/B and Ex.OW3/C and evidence of opposite parties was closed by order.
5. We have carefully gone through the record and also heard the learned counsels for the parties and further gone through the written arguments submitted on behalf of complainant.
6. Opposite parties were directed to file written arguments but inspite of various opportunities, they did not file any written arguments and as such this complaint is being decided on the basis of evidence on record.
7. The first dispute between the parties is, whether complainant had applied for and was allotted HIG Super Flat in Dr.B.R.Ambedkar Towers or he had applied for simply HIG Flat which according to the opposite parties is situated in different Towers?
8. According to the opposite parties due to clerical mistake in the allotment letter HIG Super Flat was written instead of HIG Flat which is situated in Hare Krishna Scheme. The complainant has placed on record allotment letter which is in respect of flat No.405-A, 3rd Floor, HIG Super Flat situated in Dr.B.R.Ambedkar Tower, Mohalla Gazi Gulla, Dana Mandi Road, Jalandhar. This allotment letter is dated 14.12.2006. Thereafter, even the opposite parties executed agreement Ex.C2 which is in respect of HIG Super Deluxe/HIG/MIG LIG/EWS Flats under Self-Financing Scheme. So this agreement is applicable to HIG Super Deluxe Flat as well as HIG Flat. So on the basis of this agreement it can not be concluded that complainant has applied for HIG Flat and not HIG Super Flat as mentioned in allotment letter dated 14.12.2006 Ex.C1. The opposite parties have not led any evidence except tendering affidavit Ex.OW1/A to prove that in fact complainant had applied for HIG Flat and not HIG Super Flat mentioned in allotment letter Ex.C1. Although in the written reply, the opposite parties have mentioned that copy of application submitted by applicant is annexure OP1 but no such document was attached with the written reply or produced during evidence. The application submitted by the complainant was material evidence to show that infact he has applied for HIG Flat and not HIG Super Flat. Further in the written reply, the opposite parties have pleaded that it is pertinent to mention that complainant himself duly acknowledged that construction work of the flat bearing No.405-A of Dr.B.R.Ambedkar, Tower is satisfactory in all respect and he also acknowledged that he has taken the possession of the aforesaid flat and copy of the acknowledgment is attached as Ex.OP4. Although in the written reply the opposite parties have mentioned that copy of acknowledgment is attached but no such copy of acknowledgment was produced or exhibited during evidence. According to the opposite parties prices of HIG Flat and that of HIG Super Flat are different but again no document has been placed on record to prove that the payment made by complainant was in respect of HIG Flat and not HIG Super Flat. In the written reply, the opposite parties have again pleaded that copy of brochure is attached but no copy of brochure was attached with the written reply or produced during evidence. Infact opposite parties have not produced even a single document to substantiate their above plea. In clause No.9 of the allotment letter Ex.C1 the covered area of the flat and purposed accommodation is mentioned as three bed rooms, lobby, drawing room, dinning room, kitchen, store/pooja room, three toilets, powder room, servant room with attached toilet. So above plea of the opposite parties which is contrary to the allotment letter can not be accepted. Moreover there is no evidence to prove that the complainant has infact applied for HIG Flat only and not HIG Super Flat. No documentary evidence in this regard has been produced. The affidavit Ex.OW1/A tendered by the opposite parties is nothing but re-production of the written reply. So we hold that the opposite parties gave short accommodation to the complainant as alleged in the complaint.
9. Next dispute between the parties is regarding in delay in delivery of possession of the flat. Allotment letter Ex.C1 is dated 14.12.2006 and whereas last installment was to be paid in June 2009. It is not disputed that complainant has paid entire payment and after receiving entire payment he was handed over the possession of the flat. In their written reply, opposite parties have admitted that possession was handed over to the complainant on 25.11.2014. The opposite parties were supposed to hand over the possession of the flat to the complainant in June 2009 i.e when last installment was to be paid. Moreover 2-½ years period is quite reasonable to hand over the possession. So opposite party trust handed over the possession of the flat in question to the complainant after a delay of about 63 months. Opposite parties have not explained the delay in handing over the possession to the complainant. So complainant is entitled to compensation for delay in handing over the possession of the flat to him. The area of the flat in question is mentioned as 1785 sq.feet in clause No.9 of the allotment letter. We feel that compensation @ Rs.5/- per sq.feet is quite reasonable. At this rate compensation per month comes to Rs.8925/-. So in this way for delay of 63 months the compensation amount comes to Rs.5,62,275/-. So complainant is entitled to this amount as compensation for delay in handing over the possession of the flat to the complainant. It may be mentioned here that till the possession of the allotted flat is handed over to the allottee, the cause of action is continuous one. The complainant is also entitled to compensation for short accommodation which is assessed at Rs.2 Lacs. So in this way complainant is entitled to Rs.7,62,275/-.
10. In view of above discussion, the present complaint is accepted and opposite parties are directed to pay Rs.7,62,275/- to the complainant as compensation within 45 days from the date of receipt of copy of this order failing which they shall be liable to pay interest @ 9% per annum on the above said amount after the expiry of said period of 45 days till the date of payment. The complainant is also awarded Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia
23.11.2015 Member Member President
