BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.166 of 2015

Date of Instt. 23.04.2015

Date of Decision : 01.03.2016

Mukesh Sharma aged about 48 years son of late Jagdish Ram, 147, BSF Colony, Near HMV College, Jalandhar.

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

The Jalandhar Improvement Trust, Near Skyland Chowk, Jalandhar, through its Chairman/C.E.O.

.........Opposite party

Complaint Under Sections 12/14 of the Consumer Protection Act,1986.

Before: Sh.Ashwani Kumar Mehta (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Yogesh Malhotra Adv., counsel for complainant.

Sh.DK Sharma Adv., counsel for opposite party.

Order

Ashwani Kumar Mehta (President)

1. Complainant Mukesh Sharma filed the present complaint against Jalandhar Improvement Trust opposite party (OP) under sections 12/14 of the Consumer Protection Act,1986 on the allegations of deficiency in service and unfair trade practice with a further prayer to direct the OP to pay Rs.5,64,800/- alongwith rent amounting to Rs.40,000/-, interest amounting to Rs.50,000/- and damages on account of mental agony, harassment, tension, unfair trade practice amounting to Rs.10 Lacs and Rs.50,000/- as litigation expenses.

2. The case of the complainant in brief is that complainant is employed in Punjab Police as Assistant Sub-Inspector and was in need of a house because he was living in rented accommodation and paying rent @ Rs.10,000/- per month; that OP floated a scheme through newspaper named as Bibi Bhani Complex, Jalandhar-Amritsar Bye Pass, Near Verka Milk Plant, Jalandhar and complainant applied for allotment of a semi finished, fully built up housing dwelling unit and thereafter opposite party vide letter No.JIT/8015 dated 28.1.2010 allotted a housing unit bearing No.LIG Flat 49-A, (First Floor) for consideration of Rs.5,64,800/- which were to be paid in installments and OP was also to charge interest on the principal amount; that complainant have paid entire amount to the OP within stipulated time but was shocked to find that no construction has been raised at the site and even the LPG gas line was also not laid at the spot and the little construction raised at the spot was also without any basic amenities as there was no street nor any approach to the site and construction was incomplete and there was no water supply at the site and it was not fit for human habitation; that complainant felt cheated and let down by OP; that the act and conduct of the OP amounts to illegal trade practice; that finding himself cheated by OP, complainant served a legal notice on the OP as the OP was guilty of deficiency in service and unfair trade practice and was liable to refund the money alongwith interest which the OP have not refunded inspite of requests. 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 complainant is neither consumer nor have raised any consumer dispute concerning the agreement and as per clause 7 of the allotment letter, the cost price of the flat was to be recovered within 2 ½ years and within the said period construction of the flat was expected to be ready and then the possession could be taken afterward after execution of agreement and there was no mandatory condition that the construction would be completed within 2 ½ years; that structure is complete and finishing remains to be done which is held up as the contractor has run away and matter is in the court; that the surety amount of the contractor has been forfeited and finishing is now being arranged at the expenses of contractor for which tender would be floated soon; that the forfeiture of surety by the trust have been challenged before the Hon'ble High Court and stay has been granted in it and efforts are being made to get the stay vacated and finishing job would be taken very shortly and these factors are beyond the control of OP; that the performance of the agreement does not amount to service and specific performance of the contract is to be decided by the civil court and complainant have no cause of action against the OP because the provision of amenities is not a consumer dispute and delay in finishing is not on the part of the OP but due to factor beyond the control of OP; that no interest is payable by the OP as the complaint is time barred because the limitation start from the date of allotment. On merit, it was admitted that the OP offered semi finished, fully built up housing dwelling unit to the general public and complainant applied for the same and was allotted a dwelling unit vide letter dated 28.1.2010 for Rs.5,64,800/- which was to be paid in installments. It was denied if no construction has been raised at the site and LPG gas line is subject to its approval by petroleum company and other specific amenities have been provided. It was also denied if the property in dispute is not fit for habitation as finishing is being completed. All other allegations mentioned in the complaint were denied with a prayer to dismiss the complaint.

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

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.C19 and closed evidence.

6. On the other hand, learned counsel for the OP has tendered affidavit Ex.OPW1/A alongwith copies of documents Ex.OP1 to Ex.OP4 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 OP offered sale of flats and complainant applied for the same and was offered a flat vide letter dated 28.1.2010 Ex.C2. He further contended that the total cost of the flat was Rs.5,64,800/- which was to be paid in installments and complainant have paid all the installments and as such complainant have paid the total price of the dwelling unit. He further contended that OP offered to complete the dwelling unit within 2 ½ years and to give possession of the same but yet possession has not been delivered though complainant have paid the last installment in January 2015. He further contended that construction has not been completed at the spot and even a brick has not been laid at the spot and now the project is stayed by the order of Hon'ble High Court and as such delivery of possession would be further delayed. He further contented that even sewerage has not been laid in the site nor any street has been carved out and the OP have also not laid the LPG pipe which it offered at the time of floating of the scheme and as such there is no immediate prospect of delivery of possession whereas complainant is in urgent need of the same as complainant is residing in the rented accommodation. He further contended that complainant is feeling cheated and the act and conduct of the OP also amounts to deficiency in service and illegal trade practice and as such OP is bound to refund the amount of the complainant with penal interest as complainant is also liable for penal interest if the installment is delayed as per terms and conditions of the allotment letter and as such complaint is required to be allowed and OP is required to be directed to refund the amount of complainant with interest alongwith damages, compensation, litigation expenses as mentioned in the complaint.

9. The learned counsel for the OP halfheartedly admitted that construction have not yet been completed at the spot but it was not because of fault on the part of the OP but because of reason that contractor left the work in the mid way and ran away. He further contended that even security of the contractor was forfeited but contractor challenged the same in the Hon'ble High Court and Hon'ble High Court have stayed the work. He further contended that in view of the stay granted by Hon'ble High Court, fresh tender for completion of work can not be issued and as such the delay in the construction of flats and the delivery of possession is not due to fault on the part of the OP but due to the reason that matter is in the court and stay has been granted by Hon'ble High Court and as such complaint is false and is liable to be dismissed.

10. Admittedly, the development scheme in question was floated by the OP and OP offered semi finished and fully constructed dwelling unit to the public. It is also admitted fact that complainant applied for a housing unit and OP allotted a housing unit LIG flat No.49-A to the complainant for sale consideration of Rs.5,64,800/- which were to be paid by installments. The case of the complainant is that he has paid all the installments and as such he has paid total sale consideration of the flat. He proved receipts Ex.C4 to Ex.C17 in order to show that he has deposited the sale consideration of the LIG flat in question. Complainant have also proved the advertisement and brochure Ex.C1 issued by OP regarding the housing scheme in question. As per condition No.13 of the brochure Ex.C1, the allottee shall be entitled for delivery of possession of the flat after he has paid the full sale consideration and executed all the documents as required. Complainant have proved on the file that he has deposited all the installments of the flat in question and it is also not the case of the OP that complainant have not deposited the complete sale consideration of the flat. Complainant have also executed the sale agreement with the OP which is proved on the file as Ex.C3 which bears the signature of both the parties. In this eventuality, the complainant is entitled to possession of the flat in question but the case of the complainant is that the flats have not been completed so far and it is also admitted case of the OP that the flats have also not been completed so far as the contractor had run away in the mid way and now the OP is to call tender for the completion of the work but it is also the contention of the OP that presently the matter regarding the scheme in question is pending in the Hon'ble High Court in which stay has been granted and till the vacation of the stay, tender can not be called and work on the scheme in question can not be resumed. In this eventuality, it can not be said as to how long it will take for the vacation of the stay and as to how long it will take for delivery of possession of the flat in question to the complainant. OP can not be allowed to keep the matter of delivery of possession delayed for indefinite period. The contention of the complainant is that if the OP is not in a position to deliver the possession of the flat in question then OP should refund the amount obtained from the complainant alongwith interest and compensation and damages. In the opinion of the Forum, if the construction of the flat is not completed within time as per declaration of the OP then it amounts to deficiency on the part of the OP and moreover if the work can not be resumed due to stay granted by Hon'ble High Court then OP is required to be directed to refund the amount received from the complainant in lieu of the flat and as the amount of the complainant has been kept and used by the OP for his personal gain and OP have also earned interest on the same and complainant is also entitled to compensation for the delay, therefore, the balance of justice would struck if the OP is directed to pay interest @ 12% per annum from the date of receipt of amount from the complainant till the realization which shall be in lieu of compensation and damages.

11. In the light of above discussion, complaint succeeds and same is hereby allowed with cost in favour of the complainant and against the OP and OP is directed to refund the amount received from the complainant in lieu of the flat alongwith interest @ 12 % per annum from the date of receipt till realization. The OP is also burdened with Rs.2000/- as cost of litigation. OP is directed to comply with the order within one month from the date of receipt of copy of the order. 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

01.03.2016 Member Member President