BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.293 of 2015

Date of Instt. 06.07.2015

Date of Decision : 18.11.2015

Gurdial Singh aged about 55 years son of Chanan Singh R/o P-22/4, Bhagat Road, Jalandhar Cantt.

..........Complainant Versus

The Jalandhar Improvement Trust, Jalandhar through its Chairman/ Chief Administrator.

.........Opposite party.

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.PPS Ahluwalia Adv., counsel for complainant.

Sh.AK Bajaj Adv., counsel for opposite party.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite party on the averments that the complainant applied for the allotment of LIG Flat from the opposite party under 51.5 Acre scheme known as Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar and the complainant was allotted a LIG Flat No.53-A, First Floor, situated at Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar vide allotment letter No.JIT/7191 dated 28.1.2010. The earnest money of Rs.60,000/- has already been paid by the complainant to the opposite party and the same was acknowledged by the opposite party vide allotment letter dated 28.1.2010 and further installments were paid towards the sale price of the aforesaid flat. The details of the same are as under:-

2. After the payment of all the installments towards the sale price of the aforesaid flat allotted by the opposite party to the complainant, the complainant approached the concerned officials of the opposite party for execution of agreement to sell in favour of the complainant and for the completion of all the requisite documents. The complainant also requested the opposite party to handover the possession of the flat immediately but the opposite party has been delaying the same on one pretext or the other. The complainant had visited the office of the opposite party several times for the execution of the requisite transfer documents and handing over the possession of the aforesaid flat but the opposite party has adopted dilly delaying tactics for the reasons best known to them. The complainant had paid the entire installments/payment towards the sale price of the aforesaid flat by 28.1.2013 which includes the cess, cost of documentation, interest etc as per schedule of payment towards the sale price and as in conformity with the terms of allotment letter but the possession of the flat has not been delivered to the complainant despite repeated requests and reminders from 28.1.2013 onwards. On such like averments, the complainant has prayed for directing the opposite party to hand over the possession of the flat to him and to execute the transfer deed in his favour as per terms and conditions of the allotment. He has also prayed for refund of the sale price alongwith interest. He has further claimed compensation and litigation expenses.

3. Upon notice, opposite party appeared and filed a written reply, intere-alia, pleading that the complainant has knowingly and intentionally suppressed the true and complete facts as such is not liable to any relief from this Forum. It is a fact that the contractor, who was awarded the contract of completion of work of Bibi Bhani Complex had failed to complete the work in the given rather in the period which was extended upto 31.12.2013 on levying the penalty in the larger interest of the allottees so that further delay in completion of work is averted. Finally vide resolution dated 3.6.2014, the erring contractor was proceeded against and his performance guarantee of an app. Amount of Rs.50 Lac was decided to be forfeited which he deposited as bank guarantee. Simultaneously it was decided to black list the contractor. At this stage, without any advance notice to opposite party, the contractor filed a CWP No.12384 of 14 in the Hon'ble High Court, which is pending final adjudication. As such the remaining work of complex could not be executed through any other agency especially when the contractor filed a Contempt Petition No.566 of 15 against the Chairman, Executive Officer and Superintending Engineer of the opposite party leveling false accusation of disobedience of stay of invoking of bank guarantee ordered by the Hon'ble High Court on 1.7.14 in CWP No.12384 of 14. It may however be clarified that the construction of flats was to be raised on”Self Finance Basis” and as such the complainant did not hire or take any service of the opposite party for consideration. It is however submitted that vide allotment letter dated 28.1.2010 option was given to allottee/complainant to deposit the allotment amount in easy installments carrying the usual normal interest or in lump sum. It was expected that the construction work shall be completed by June 2011 and after providing necessary amenities, the possession shall be handed over to the successful allottee in June 2012. However, the contractor failed to complete the work in given period. The contractor was even granted more time upto 31.12.2013 on levying the penalty yet he failed to complete the work. The opposite party in compelling circumstances vide resolution dated 3.6.2014 decided to invoke the “Performance guarantee” of Rs.50 Lac app deposited by complainant and also resolved to black list the contractor. At this stage, without any notice to opposite party the contractor filed a CWP No.12384 of 14 in the Hon'ble High Court and obtained exparte stay on the decision to invoke the bank guarantee. The opposite party filed its detailed reply in the High Court and prayed for early disposal of the case. On the other hand, when the resolution dated 3.6.14 was also approved by Govt., the contractor filed a COCP No.566 of 2015 in the Hon'ble High Court alleging disobedience of the interim order dated 1.7.2014 of the Hon'ble High Court by the opposite party. The Hon'ble High Court was again apprised that the contempt petition merit rejection as the accusation leveled by petitioner contractor of disobedience of Hon'ble High Court order dated 1.7.14 is false and incorrect. The contractor faced with this situation withdrew the contempt petition on 10.7.2015 and the same was dismissed as withdrawn. Now the opposite party has started action to get the remaining work completed from the other agency at the cost and risk of the contractor and no additional cost is proposed to be charged from the allottees. All this shows that opposite party was and is always inclined to hand over the possession of the flat to the complainant but the delay has occurred owing to the circumstances which were beyond its reach. It denied other material averments of the complainant.

4. In support of his complaint, complainant has tendered into evidence affidavits Ex.CA and Ex.CB alongwith copies of documents Ex.C1 to Ex.C16 and closed evidence.

5. On the other hand, learned counsel for the opposite party has tendered affidavit Ex.OP/A alongwith documents Ex.OP/1 and Ex.OP/5 and closed evidence.

6. We have carefully gone through the record and also heard the learned counsels for the parties.

7. The facts involved in the present complaint are not much disputed. It is not disputed that the complainant has applied for the allotment of LIG flat in the scheme known as Bibi Bhani Complex, Guru Amar Dass Nagar, Jalandhar and he was allotted a LIG Flat No.53-A, First Floor vide letter dated 28.1.2010. The complainant has paid the entire amount. However, opposite party failed to complete the construction and hand over the possession to the complainant within stipulated or reasonable time. In the written reply, the opposite party has pleaded that it was expected that the construction work shall be completed by June 2011 and after providing necessary amenities, the possession shall be handed over to the successful allottee in June 2012, however, the contractor failed to complete the work in given period and he was even granted more time upto 31.12.2013 on levying the penalty yet he failed to complete the work. According to the opposite party it invoked the performance guarantee given by the contractor and also resolved to black list him but at this stage he filed a writ petition in Hon'ble High Court and obtained exparte stay on the decision to invoke the bank guarantee. The possession of the flat allotted to the complainant has not been handed over to him till date although opposite party has received the entire consideration long ago. The reasons given by the opposite party in its written reply for delay are not legally tenable. The contractor has obtained the stay order from Hon'ble High Court on the decision of the trust to invoke the bank guarantee. The opposite party has not placed on record any stay order from Hon'ble High Court restraining it from getting the construction work completed from any other contractor. The complainant who has paid the entire amount can not be deprived of possession of the flat on the ground that the contractor has failed to complete the work within the given time. It was for the opposite party trust to ensure that construction work is completed withing stipulated period. It has failed to offer the possession of the flat to the complainant till date. The complainant has firstly claimed the possession of the flat and interest @ 18% per annum on the amount deposited by him till the delivery of the flat to him and then he has claimed refund of the sale price deposited by him with interest. So it means that in the alternative he has claimed refund of the amount paid by him alongwith interest. Counsel for the opposite party has cited Ghaziabad Development Authority Vs. Union of India & Anr decided by Hon'ble Supreme Court on 12.5.2000. However, this authority is regarding rate of interest and further on the question of compensation for mental agony can not be granted.

8. In the above circumstances, the present complaint is accepted and opposite party trust is directed to deliver the possession of the flat in question to the complainant within 9 months from the date of receipt of copy of this order alongwith 12 % interest per annum on the amount deposited by him from the date of filing of the present complaint till the delivery of the possession of the flat to him and in case opposite party fails to deliver the possession of the flat to the complainant within above said period, it shall be liable to refund the entire amount deposited by him alongwith 12 % interest per annum from the date of deposits of the respective amounts by the complainant 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

18.11.2015 Member Member President