BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.84  of 2022

      Date of Instt. 17.03.2022

      Date of Decision: 26.07.2023

Rajnish Sharma aged 51 years S/o Sh. J. M. Sharma, R/o H. No.476, Mota Singh Nagar, Jalandhar.

..........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 the Complainant.

                   Sh. Brijesh Bakshi, 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 complainant attracted and allured by OP venture for development of Surya Enclave Extension, published and advertised by OP to provide dream home with ultra-modern facilities and amenities with high quality and standard under 94.97 Acre Development Scheme in Surya Enclave Extension Jalandhar, with a hope to have a dream house of his own, applied for a plot, the project was also promoted by various nationalized banks. The Complainant paid for plot with his hard earned money. The complainant submitted application No.092766, on prescribed form to OP for plot measuring 200 Sq. yards along with 10% earnest money of Rs 3,40,000/- vide account bearing No.023500PC00407095 dated 12/05/2016 drawn on Punjab National Bank, Civil Lines, Jalandhar. It is pertinent to mention here that the complainant had applied for the plot in the year 2016 after making the said payment. The complainant was allotted plot No.244-D, under Vikas Scheme 94.97 Acre Surya Enclave Extension), Jalandhar, as per allotment letter bearing no.JIT/830 dated 06-06-2016, in lucky draw held on dated 19/05/2016 at the rate of Rs.17,000/- per sq. ft totaling to Rs.34,00,000/- approved by resolution no.298 dated 19/05/2016 further approved by government. As per the said allotment letter in case of delayed payment the OP was entitled to receive interest at the rate of 11% in case of delay for one month, 12% in case of delay for two months, 13% for delay of three months, 14% for delay for four months, 15% for delay for five months and 16% for delay for six months. To the extent that after period of 6 months if the allottee failed to pay the installment the plot shall be confiscated by the OP. In the event of confiscation of plot on default the re-allotment will be done to the allottee only after the payment of interest as penalty, 20% restoration charges and 6% penalty on the amount shall be calculated as per governmental instructions/directions from time to time. The site was to be developed within in 2 ½ years and the possession of the plot as per the allotment letter could be taken after the execution of the agreement of sale for which the payment was duly made by the complainant well within time. However, due to reasons best known to the OP has not got executed the said agreement till date. The complainant has deposited all the requisite papers for the registration of the application with the necessary fee and other formalities as per norms of OP. The only formality which was to be completed was to give the possession of allotted plot, after execution of the agreement to sell, duly completed with all the amenities and ultra- modern facilities as advertised and assured in the prospectus, to augment the sales of the said plots to make money and profits, by the OP. The complainant paid the whole purchase price of plot to OP as per the allotment letter dated 06-06-2016 along with interest as and when due and penalty and other calculations of OP, which in total amounted to Rs.36,47,500/- alongwith Rs.4188/- as interest till 02/07/2016 paid to the Punjab National Bank, Civil Lines, Jalandhar. The total Amount paid was Rs.39,87,500/- to OP after including various penalties and interest amount as calculated by the OP. In addition amount of Rs.4188/- paid as interest on the loan amount to the Punjab National Bank total amounting to Rs.39,91,688/-. After the complainant had paid the full amount as stated supra, it was found that OP had deceived the complainant by misleading and fraudulent advertisement since the allotment of the plot was fake, the area where the plots has been allotted is uninhabitable and unlivable. Neither the OP has developed the site nor offered possession even after lapse of almost 5 years. The complainant was shocked to see the terrible condition on the spot. There are no demarcations made by the department and plots cannot be identified. There are no motorable roads, water and sewage pipeline as alleged to have been laid down by the OP have not been connected to the main line thus even if present, making them unusable. Even the main connecting road to the city has not been completed till date and streetlight poles without connection are standing, rendering them reddening. The condition further worsens during the rainy season as water clogging take place leading to elaborate weed growth in the area. The areas around are being used as a dumping ground and emanates unbearable stink. There is no possibility of carrying out construction in the said area, a total hazard medically also. The OP has no plausible explanation what so ever in respect thereto it has been a long period since the date of allotment and the opposite party doesn't seem to be serious on the front of fulfilling its promised advertised plots. Even after protracted follow up and lapse of 5 years from the date of allotment OP was unable to give any valid and satisfactory reason and justification for unpardonable delay in making the area habitable and delivery of possession as per agreed amenities and facilities as assured to the complainant, till date tantamount to deceptive and unfair trade practice deficiency in rendering service and deceiving the complainant by not giving the possession the plot as per the agreed terms. There is still no development work on the plot of the complainant with respect to even the basic amenities like the motorable road, sewerage, supply of water and electricity. The callous attitude on the part of the opposite party can further be seen from the fact that even after full and final payment and request for No Due Certificate letter the OP failed to issue the same even after so many years after the allotment. The OP started the project even prior to taking of the actual possession of the total land under the said scheme, portion of the land was under litigation before the Hon'ble Punjab and Haryana High Court, Chandigarh since 2011 and so subsequently re-launched in 2016. The delay in delivery of possession per se attract Odium of deficiency, negligence and unfair and deceptive trade practice envisaged under the provision of Consumer Protection Act 2019 as amended up-to-date (hereinafter in short the Act') on the part of OP. The delay is tainted with malafide and arbitrariness and purpose behind the curtain is a deceitful, modus operandi on the part of OP amounting to deceptive 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 OPs be directed to return/refund an amount of Rs.39,87,500/- deposited by the complainant with an amount of Rs.4188/- paid as interest, which the complainant availed the loan facility total amounting to Rs.39,91,688/- as mentioned herein above alongwith interest @ 18% per annum from the date of deposit upto the date of the actual payment to the complainant. Further, OP be directed to pay a compensation of Rs.5,00,000/- for causing mental tension and harassment to the complainant and Rs.25,000/- as cost of proceedings of the complaint and Rs.15,000/- on account of expenses paid for making the complaint.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the complaint is not maintainable against the answering OP in the present form under the law. It is further averred that the present complaint is time barred. The allotment was made on 06.06.2016 and the possession could be taken after entering into sale agreement within 30 days from allotment. But the complainant failed to do so. The complainant failed to take possession and till date before filing of the present complaint had no objections/correspondence with JIT/OP and now the present complaint is time barred. It is further averred that the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. The plot in question i.e. Plot No.244-D of the Development Scheme 94.97 Acre known as Surya Enclave Extension was allotted to the complainant vide allotment letter no.JIT/830 dated 06.06.2016 and the complainant received and acknowledged the same. As per the terms and conditions of the allotment letter, the allottee could enter into sale agreement within 30 days from the date of allotment letter and thereafter the allottee could take possession from the OP. The complainant has entered into sale agreement with the OP after a period of more than 3 years. As per the terms and conditions of the allotment, the allottee could take possession after entering into sale agreement. But despite execution of sale agreement dated 17.01.2020, the complainant failed to take possession or even file any application for possession even till date. The OP is not under any contractual obligation to write letters or trace out complainant to give possession but still to remove any doubts the letter No.JIT/1355 dated 12.08.2021 was issued to the complainant to take possession at site. But the complainant failed to reply or comply with the same. Whereas as per clause 5, the allottee has to enter into sale agreement within 30 days from the date of allotment and then seek possession after entering into sale agreement. In the present case, the allottee clearly defaulted and he was entitled to seek possession after entering into sale agreement within 30 days, but he miserably failed to either approach or write even a single letter to the OP to take possession whereas the JIT never refused possession rather had been performing its due part. But he failed to take demarcation/possession. It is further averred that the complainant is barred by his own act, conduct, delay and laches and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. It is further averred that the complainant is guilty of concealment of material facts and has not approached the Commission with clean hands and as such is not entitled to any relief from this Commission. On merits, the factum with regard to allotment of the plot and payment to the same is admitted, but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

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.                Now the first point to be decided is as to whether the complaint is time barred or not. As per the contention of the OP, the allotment was made on 06.06.2016, but the complainant has failed to take possession or even file any application for possession, but this contention is not tenable as the news publications have been proved on record by the complainant, which are from different newspapers and these are from 2020 onwards, which has been proved as Ex.C15 and Ex.C16. All these news publication show that the facilities and development in the Surya Enclave Extension is incomplete, meaning thereby there is no development at all. Perusal of letter dated 12.08.2021 Ex.OP-3 shows that it was noted that the portable roads, water/sewerage and street lights have been made available. The present complaint was filed on 17.03.2022, so, it cannot be said that the present complaint is time barred and the same is within time. It has been held by the Hon’ble State Commission, in “Manoj Bagroy Vs. M/s N. H. Matcon” in consumer complaint no.429 of 2019, decided on 07.01.2020 that even if the possession is taken by the consumer, it would be a incomplete and invalid delivery of possession for the want of the amenities. It was observed by the Hon'ble State Commission in the above said case that the OP had not obtained the occupation certificate and completion certificate from the competent authorities to enable them to deliver the complete and effective possession to the allottess. Until and unless they obtain such certificate, it cannot be held that complete possession has been delivered and there is continuous cause of action in favour of the complainant till the obtaining of such certificates by the OP and the complaint filed by the complainant was held to be within limitation.

7.                The complainant has alleged that the facilities and amenities were not complete and the entire amount was paid by the complainant. As per the allotment letter, the conditions were not complied with by the OPs as the plots were not ready within prescribed period, therefore the fault is on the part of the OPs. The OPs have alleged that the complainant was to take the possession within 30 days from the allotment and agreement was not executed within prescribed period, but this contention is not tenable, If the complainant failed to take the possession within 30 days from the allotment or failed to execute the agreement within prescribed period, then it is the duty of the OP to send a notice to the complainant to take the possession and to execute the agreement, If the complainant does not turn up they can cancel the allotment, but the OP failed to send any notice nor the allotment was cancelled. The OP has not produced the occupation and completion certificate duly issued by the competent authority showing that the basic amenities have been duly provided at the site. Even otherwise, Completion Certificate, as envisaged under section 14 of the Punjab Apartment and Property Regulation Act, 1995 (in Short "PAPRA") is the most essential document, which should have been produced with regard the matter in issue but the same has not been produced by the OP to prove that Plot in question as well as basic amenities in the entire complex have been completed in all respects. In such circumstances, the complainant is entitled for the relief.

8.                In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to refund the amount of the plot with interest @ 9% per annum from the date of making deposits till its realization. Further, OP is directed to pay a compensation to the complainant for mental agony and harassment caused to the complainant, to the tune of Rs.30,000/- and litigation expenses of Rs.5000/-. 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.

9.                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     

26.07.2023         Member                          Member           President