BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.209 of 2015

Date of Instt. 18.05.2015

Date of Decision : 10.02.2016

Manish Kumar Miglani aged about 40 years son of Jagtar Singh R/o House No.91, Park Colony, Bhiwani(Haryana).

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

The Jalandhar Improvement Trust, through its Chairman/Executive Officer, Jalandhar.

.........Opposite parties.

Complaint Under Section 12 of the Consumer Protection Act.

Before: Sh.Ashwani Kumar Mehta (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Sukhwinder Lal Adv., counsel for complainant.

Sh.Sachin Sharda Adv., counsel for OP.

Order

Ashwani Kumar Mehta (President)

1. Complainant Manish Kumar Miglani filed the present complaint against Jalandhar Improvement Trust opposite party (OP) under section 12 of the Consumer Protection Act on the allegations of deficiency in service and unfair trade practice with further prayer to direct the OP to refund the amount of Rs.4,93,950/- with interest and Rs.50,000/- as compensation and Rs.20,000/- as litigation expenses.

2. The case of the complainant in brief is that OP floated a development scheme at Jalandhar known as Surya Enclave Extension, 94.97 acres scheme and notice was given to the general public to apply for allotment of plots and complainant who was in need of residential house at Jalandhar applied for plot measuring 100 sq.yards in the said scheme and deposited Rs.1,70,000/- as earnest money vide application No.082821; that the draw was held on 4.11.2011 and complainant was successful in the draw and was allotted a plot No.171-C, measuring 100 sq.yards in the said scheme and letter of allotment No.JIT/2747 dated 23.12.2011 was issued to the complainant alongwith terms and conditions of the allotment; that OP assured to develop the land within period of 2 ½ years and construction of the house was to be completed within three years from the date of allotment; that complainant deposited 1/4^th of the total sale amount and deposited Rs.3,23,950/- i.e. Rs.2,55,000/- as 1/4^th of the sale price alongwith interest Rs.68,600/- and Rs.950/- for site plan and agreement to sell fee on 19.1.2012; that complainant had been ready and willing to perform his part of the contract as per allotment letter and to deposit the balance amount but officials of the Op refused to receive the balance amount as there was some stay order passed by Hon'ble Punjab & Haryana High Court with regard to the scheme in question; that complainant also visited the area of the scheme in October 2014 to see the development work at the spot but he was surprised to find that the area of the scheme was lying in a completely ignored condition and there was no touch of development at all at the spot and even it was not possible to identify the plot in question allotted to the complainant nor any road had been constructed at the spot and even the possession of the scheme area land had not been taken by the OP and even the original land holders of the scheme area have not allowed the OP to take possession of the land as they obtained the stay order against the OP and as such development of the scheme area could not take place; that even thereafter complainant visited the scheme area many times but the scheme area was lying in undeveloped and ignored condition and there was no immediate chance of development in the scheme area which was otherwise required by the complainant urgently; that complainant also approached the OP many times and requested to give physical possession of the plot in developed condition and to receive the balance installments but officials of the OP did not bother and failed to receive the balance amount and to give physical possession of the plot in question though complainant was always ready and willing to perform his part of the contract; that act and conduct of the OP caused harassment, mental agony, inconvenience and loss to the complainant due to which reason complainant served legal notice dated 30.04.2015 requesting the OP to deliver the possession of the plot in question in developed condition otherwise the allotted plot shall stand surrendered to the OPs and complainant would be under no legal obligation to pay any amount and rather would be entitled to claim refund of the amount deposited with the OP with interest but inspite of legal notice, OP failed to respond and even reply to the notice and also failed to deliver the physical possession of the plot in question in developed condition and as such after expiry of the notice period, the plot in question stood surrendered to the OP due to their own default and complainant is entitled to refund of his amount with interest; that act and conduct of the OP amounts to deficiency in service and unfair trade practice which have caused harassment, mental agony and monetary loss to the complainant. Hence, complaint was filed.

3. After formal admission of the complaint, notice was issued to the OP and OP appeared through counsel and filed written statement contesting the complaint on the preliminary objections that same is not maintainable in the present form and complainant has not approached the forum with clean hands as complainant himself is defaulter and have failed to deposit the installments in time as per allotment letter and as such complainant is not entitled to any relief; that no statutory legal notice was issued to the OP by the complainant and complaint is liable to be dismissed. On merit, the OP have not denied the floating of the development scheme in question by the OP and inviting applications for the allotment of plot etc and complainant applied for allotment of plot measuring 100 sq.yard alongwith earnest money of Rs.1,70,000/- being matter of record. It was not denied being matter of record that complainant was allotted the plot in question in the said development scheme and complainant was informed vide allotment letter No.JIT/2747 dated 23.12.2011 and other terms and conditions of the allotment letter were also admitted. It was denied if complainant deposited 1/4^th price of the plot i.e. Rs.3,23,952/- and other allegations were also denied being incorrect and if OP was deficient in service or the act and conduct of the OP caused any harassment, mental agony or monetary loss to the complainant and prayer was made for dismissal of the complaint with cost.

4. Both the parties were given sufficient opportunities to lead evidence in order to prove their respective case.

5. 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.C8 and closed evidence.

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

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

8. The learned counsel for the complainant contended that complainant applied for allotment of residential plot in the development scheme of the OPs namely Surya Enclave Extension and complainant was declared successful and was allotted the plot in question and was issued a allotment letter Ex.C6 and as per terms and conditions of the allotment letter, possession of the plot was to be given within 2 ½ years and construction was to be completed within three years and complainant paid Rs.1,70,000/- as earnest money at the time of application filed under pensioner category and draw was held on 4.11.2011 and allotment letter of the plot in dispute was issued on 23.12.2011. He further contended that complainant deposited Rs.3,23,950/- as 1/4^th price of the plot after allotment letter but possession was not given to him nor any development work was undertaken by the OP in the scheme area though complainant had paid amount of Rs.4,93,950/- to the OP. He further contended that complainant finding no development work in the scheme also served a legal notice Ex.C7 on the OP but it carried no effect on the OP and even the OP did not reply the legal notice. He further contended that complainant suffered harassment and mental agony and also suffered monetary loss due to act and conduct of the OP and as such complainant is also entitled to compensation on this account. He further contended that complainant requested the OP many times for handing over the possession of the plot in question and also to receive further installment but every time officials of OP refused to receive the installment contending that some stay has been issued by the Hon'ble Punjab & Haryana High Court regarding the scheme in question and as such complainant was not given any reply to the legal notice nor delivered the possession of the plot in question though complainant was ready to perform his part of the contract and OP failed to perform under the allotment letter or terms and conditions of the scheme and as such OP is deficient in service and have also used unfair trade practice in extracting money from the complainant and as such complaint is required to be allowed and OP is required to be directed to refund the amount of the complainant received by it alongwith interest and also to pay compensation and litigation expenses mentioned in the complaint.

9. The learned counsel for the OPs contended that complainant have not produced any stay order issued by Hon'ble Punjab and Haryana High Court as mentioned in the complaint. He further contended that no stay order has been passed by the Hon'ble High Court regarding the plot in question and complainant have taken a false plea in order to file present complaint and avoid the payment of remaining due installments. He also contended that complainant have also not brought any evidence on the file to show that development work has not been effected in the scheme area. He further contended that as per condition No.3 of the allotment letter, complainant was to pay the due installment within time otherwise penal interest was to be recovered from the complainant and plot would be repossessed by the OP and as such complainant have not followed the terms and conditions of the allotment letter and as such he is not entitled to any relief under the complaint and complaint have been filed in order to avoid terms and conditions of the allotment letter and is false and is liable to be dismissed with cost.

10. Most of the facts are admitted in this case though the written statement filed by the OP is not properly worded. It is admitted fact that complainant applied for plot measuring 100 sq.yards in the Surya Enclave Extension, Jalandhar scheme and paid Rs.1,70,000/- as earnest money. It is also admitted fact that draw of plots was held on 4.11.2011 and complainant was declared as successful and was allotted plot No.171-C measuring 100 sq.yards in the said scheme and letter of allotment dated 23.12.2011 was issued to the complainant. It is one of the condition of the allotment letter that development work would be completed by the OP in 2 ½ years during which period, complainant would also pay all due installments and thereafter complainant would take possession from the trust after executing agreement with the OP trust. The schedule of installments to be paid by the complainant is also mentioned in the allotment letter. It is admitted fact that complainant have deposited 1/4^th of the price of the plot as per condition No.6 of the allotment letter after the allotment of the plot to the complainant and thereafter complainant did not deposit any other installment as mentioned in the allotment letter. The contention of the complainant is that he was ready to deposit the remaining installments but officials of the OP trust failed to receive the installments but no evidence except oral evidence have been produced by the complainant on the file in this regard. It is also the contention of the complainant that he requested the OP trust for delivery of the possession but OP trust failed to deliver the possession of the plot in the developed condition as the area under the scheme has not been developed at all by the OP trust. There is no force in the contention of the complainant as it is mentioned in the condition No.7 of the allotment letter that possession of the plot is to be taken by the allottee only after the payment of all installments or payment of total cost of the plot and admittedly complainant have not deposited any of the installment mentioned in the allotment letter and have deposited only 25% of the cost of the plot as per condition No.6 of the allotment letter and in this eventuality, complainant is not entitled to possession of the plot in question till he deposited all the installments or the total price of the plot. As such complainant himself is defaulter in payment of the installments. Otherwise, the OP trust develop the area of the scheme by receiving the subscription or installment from the plot holders who have been allotted plot in the scheme and if the flow of money is stopped then development of the area is also stopped or delayed because the area of the scheme is developed with the installments paid by the allottees and as such complainant is also party in the non development of the area of the scheme. Complainant stopped the installment on the ground that Hon'ble Punjab & Haryana High Court have issued a stay order regarding the scheme area but no such stay order has been produced on the file nor complainant have produced any evidence on the file to show that officials of the OP trust failed to receive the installment though he was ready to deposit the same. Complainant deposited the 25% of the cost of the plot in question on 19.01.2012 and thereafter did not deposit any of the installment mentioned in the allotment letter and as such complainant himself being a defaulter is not entitled to any relief as a person should approach the Forum with clean hands and himself should not be a defaulter.

11. In view of above discussion, the complainant is not entitled to relief under the complaint and complaint fails and same is hereby dismissed. In view of peculiar circumstances of the case, the parties are left to bear their own cost. 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 Ashwani Kumar Mehta

10.2.2016 Member Member President