BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.293 of 2018
Date of Instt. 16.07.2018
Date of Decision: 19.09.2022
Amar Preet Kaur Bal, W/o Satbir Singh Bal, R/o 4042, Sunny Enclave, Sector-125, Kharar, District Mohali, Punjab.
..........Complainant
Versus
Jalandhar Improvement Trust, Model Town Road, Jalandhar City through its Executive Officer.
….….. Opposite Party
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Smt. Harleen Kaur, Adv. Counsel for Complainant.
Sh. Manoj Dhamija, Adv. Counsel for OP.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the OP floated Development Scheme known as Surya Enclave Extension 94.97 Acre in Jalandhar. The complainant allured and attracted by OP venture widely published and advertised to provide shelter to needy home buyers. The complainant applied for 250 sq. yards plot under general category as prospective buyer. The complainant submitted application No.092759 in prescribed form with all the requisite formalities and documents and also completed and complied with all the requirements which ever were asked alongwith 10% amount in the sum of Rs.3,40,000/-. The application was accepted without any strings and objection. Lucky draw was held on 19.05.2016 at Red Cross Bhawan, Jalandhar. The complainant was declared successful applicant. OP assured and publically announced to give best design with all ultra modern facilities duly developed allotted plot for habitation and comfortable safe living. The complainant raised a loan from Punjab National Bank, Civil Line Branch, Jalandhar against allotted plot and 10% amount of Rs.3,40,000/- was paid directly by said Bank to OP. The OP, vide letter reference JIT/809 dated 06.06.2016 issued allotment letter. Copy of letter Reference No.JIT/1063 dated 10.06.2016 of OP addressed to the complainant intimating that OP had sent allotment letter in respect of Plot No.97-D allotted to the complainant to Punjab National Bank, Civil Lines Jalandhar. After only formality which was to be completed was to give the physical possession of allotted plot duly developed with all the assured amenities and ultra modern facilities with quality of standard within stipulated period as agreed and promised in allotment letter by OP. Depressed and disappointed frustrated and disgusted complainant had to discontinue further installment of payment after the amount paid as described herein above to OP since undisputedly it came to the notice of the complainant about 11 civil writ petitions filed by different persons against OPs are pending decision in the Hon’ble Punjab & Haryana High Court. Resultantly, the entire scheme remained undeveloped and in limbo. The chances of development of the scheme were uncertain and very remote. As per terms and conditions of the allotment letter lacked basic civil amenities/public utilities service, supply of water, construction of road, supply of powers and light and laying down sewerage and roads etc. by OP. OP non-development caused sufferance and hardship to allottee. There was no chance of development and its completion and delivery of physical possession of the allotted plot even after protected follow of and lapse of about 2 years from the date of allotment the plot allotted under the scheme. Non completion and delay in development of the scheme within stipulated time frame and delivery of physical possession per se attract Odium of deficiency, negligence and unfair trade practice and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to return Rs.3,40,000/- paid/deposited by the complainant with interest @ 18% per annum from the date of deposit upto the date of actual payment to the complainant. Further, OP be directed to pay a compensation of Rs.50,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses and Rs.1000/- expenses on account of fee of Rs.400/- for making complaint and postal expenses.
2. Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form nor under the law. Rather the complaint is infructuous. The complainant is false and frivolous to the knowledge of the answering OP. the complainant is trying to harass the answering OP by filing present complaint. The complainant has no cause of action to file the present complaint and that the complainant is barred by his own act, conduct, omissions and commissions to file the present complaint. The complaint without cause of action is barred by law. The complainant had not come to the Commission with clean hands. It is further averred that the complainant had filed this false and frivolous complaint, to harass the answering OP. The details of procedure of department are mentioned in detail in the allotment letter produced by the complainant himself. The application was made by the complainant. The draw was made. The allotment was made. The complainant was to deposit the amount as per terms and conditions of the allotment letter within 30 days of receiving of the allotment. The complainant herself failed to deposit the amount within said time period. As such, as per Clause No.6 of the allotment letter which states that the allotment shall be cancelled and the amount deposited would be forfeited, in case of failure to deposit the said amount. The complainant herself defaulted, resulting into cancellation of the allotment and forfeiture of amount, in accordance to law. It is further averred that the agreement between the parties has already rescinded, due to non-payment by the complainant, as per agreement Para No.6. As on the date of filing of the complaint, there was no valid standing contract between the parties. The consumer complaint is not maintainable. On merits, the factum with regard to allotment of the plot to the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder not filed by the complainant.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the counsel for the complainant, very minutely.
6. The complainant applied for 250 square yards plot in Surya Enclave Extension 94.97 acres scheme in Jalandhar. The complainant has also deposited the earnest money i.e. 10% amount in the sum of Rs.3,40,000/-. The complainant has proved the application for allotment of residential plot Ex.C-1 and the receipt confirming the depositing of amount of Rs.3,40,000/- has been proved as Ex.C-2. The plot No.97-D, measuring 250 square yards was allotted to the complainant, vide allotment letter Ex.C-3 and Ex.C-4. The complainant has proved that the OP has informed the complainant that the necessary intimation regarding the allotment of the plot to the complainant has been sent to the Punjab National Bank from whom the complainant has taken the loan. The letter has been proved as Ex.C-5. The complainant has alleged that after the allotment of the plot, the OP has not given the possession of the plot as the basic civil amenities, public utilities services, supply of water, construction of road, supply of powers and light are not there. The OP has not provided any of the amenities as per the conditions in the allotment letter.
7. The contention of the OP is that the present complaint is not maintainable as the OP has cancelled the agreement due to non payment by the complainant. It is not the OP rather the complainant, who has defaulted and as per the conditions of allotment letter. The amount deposited by the complainant has already been forfeited. The Ld. Counsel for the OP has further submitted that the agreement between the parties has already been rescinded and the present complaint is not maintainable as on the date when the present complaint was filed, there was no valid standing contract between the parties.
8. Perusal of the record shows that the OP has not produced on record any document to show any agreement was executed between the parties nor any letter has been produced by the OP to show that the plot has been cancelled or any notice was ever sent to the complainant to deposit the remaining amount or to take possession. There is no such document on the file to prove that the agreement between the parties has been rescinded and the allotment of the plot to the complainant has already been cancelled. There is no document on the file to prove that the amount deposited by the complainant of Rs.3,40,000/- has already been forfeited due to non-payment of remaining/balance payment.
9. The contention of the OP is that due to fault of the complainant himself the possession was not delivered as the complainant has not made the payment, but as discussed above, there is no document to show that due to non-payment of money, any adverse order has been passed. This shows that the allotment still subsists and there is no cancellation of allotment nor there is any forfeiture of the amount.
10. The contention of the complainant is that the Hon’ble Punjab & Haryana High Court has stayed the dispossession of big portion of the loan acquired by the Improvement Trust, Jalandhar in the year 2011 and despite that the Improvement Trust went ahead with the scheme in Surya Enclave Extension for 94.97 acre. Therefore, the complainant did not deposit the remaining amount rather they approached the OP for refunding the amount, but the OP refused to refund the amount. The OP has not rebutted the contention of the complainant that the basic amenities as per the condition of allotment letter have been provided to the allottees. Nothing has come on the record that the plots are ready for giving the physical possession. It has been held by the Hon’ble State Commission, Chandigarh (UT), in Complaint Case No.62 of 2019, decided on 10.09.2019, titled as “Dr. Alka Khera and others Vs. M/s Omaxe Chandigarh Extension Developers Private Limited and others”, which is as under:-
“Consumer Protection Act, 1986 Section 2(1) (o) Delay in possession- Complaint seeking refund of amount paid by complainant-Default in payment of installments by the complainant- Held, it is settled law that the allottees of flats/plots could not be expected to go on making payments to the builder as per the payment plan, when they could discover that it is not in a position to hand over possession of the property in time, for want of construction and development at the project site-Complaint partly accepted.”
11. The Ld. Counsel for the OP has submitted that the complainant is not entitled to any relief as the amount has been forfeited as other installments have not been paid by the complainant, but this contention is not tenable as it has been held by the Hon'ble National Commission in Consumer Case No.218 of 2013, decided on 05th July, 2019, titled as “Sidharth Ghosh and others Vs. M/s Supertech Ltd. and others” that ‘Housing construction- Only the booking amount was paid and further installments were not paid-The OP may not have suffered any loss as the flat was ready to move in flat and definitely could have been sold to any other buyer-Held-That the booking amount has to be refunded to the complainants in the facts and circumstances of the case-Complaint partly allowed.’ In the present case also only the booking amount was paid by the complainant and the remaining amount was not paid and no document is there on the file to prove that this amount has been forfeited or plot has been cancelled, therefore, there will be no loss to the OP, if the complainant does not take the plot rather the OP could have sold the plot to any other person. Thus, they may not have suffered any loss. Therefore in view of the law laid down by the Hon'ble National Commission and the Hon’ble Supreme Court, in case titled as “M/s Kailash Nath Associates Vs. Delhi Development Authority & Anr., that the booking amount should be refunded to the complainant where the lapse is on the part of the OP, the complainant is entitled to the refund of money.
12. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount of Rs.3,40,000/- with interest @ 9% per annum from the date of making deposits till its realization. Further, OP is directed to pay a compensation of Rs.30,000/- for causing mental agony and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days 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.
13. 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 Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
19.09.2022 Member Member President
