BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR.
Complaint No.31/2019
Date of Instt. 30.01.2019
Date of Decision: 09.02.2021
S.Kulwant Singh S/o S.Mohinder Singh, resident of Village VPO Mari Tanda, District Gurdaspur.
........Complainant
Versus
1. The Jalandhar Improvement Trust, Jalandhar, througth its Chairman/Executive Officer.
2. The Chairman/Executive Office, Jalandhar Improvement Trust, Jalandhar.
.....Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt.Jyotsna (Member)
Present: - Sh.Balraj Sharma, Adv Counsel for the Complainant.
Sh.Sachin Sharda, Adv. Counsel for Opposite Parties No.1 & 2.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that the opposite party had floated a scheme known as Surya Enclave Extension (94.97 Acre) Development Scheme and in that Scheme, the complainant had applied by depositing Rs.3,50,000/- for the allotment of a plot of 200 Sq. Yards in the Government Employee category as the Complainant wanted to shift to Jalandhar at the plot to be allotted under the draw. On a draw held on 04.11.2011, the complainant was allotted the plot number 218-D and was informed about the allotment, vide letter No.JIT 4620 dated 02.04.2012. The complainant in pursuance of the terms and conditions of the allotment letter, deposited the 1/4th of the total amount of sale price of the plot i.e. Rs.6,37,500/-. Thereafter, the complainant has always been ready and willing to perform his part of the agreed terms and conditions and offered to deposit the balance payment due as on 01.10.2013, but the turst officials failed to receive the balance amount as there was some stay order pronounced by the Hon'ble Punjab and Haryana High Court with regard to the land under the Development Scheme mentioned above. The Complainant wanted to shift permanently along with his family to Jalandhar after constructing a house at the allotted plot and for that matter he had even taken a loan for the earnest money from Punjab Gramin Bank, Kapurthala to the tune of Rs.3,40,000/- which he ultimately cleared on 17.04.2012 after the allotment of plot in draw of lots. It is further alleged that after depositing the amount of 25% of the sale consideration, the complainant visited the site of the scheme area a number of times after allotment, deposit of 25% of sale consideration and even thereafter in the year of 2012, 2013 & in the year of 2014 also for inspection and verification about the development works at the site of the plot as the complainant was curious to construct his house at the allotted plot and to shift his family to Jalandhar for better living and education of the children and wife. It became clear that the possession of the site of scheme land and the allotted plot has never been with JIT and it carved out the scheme without having got possession to undertake any development and to provide basic amenities. Further, there has been litigation pending with regard to the scheme land in some local court/high court, in which the original land holders have obtained any order of stay against the JIT and the JIT had never been in a position to develop the site and lay down the roads, sewerage and water supply amenities for handing over the possession of the developed site to the complainant. The complainant even thereafter demanded the refund of the earnest money from the opposite parties vide his legal notice dated 14.09.2018. The notice was served through registered post calling upon the OP No.1 to refund the amount of earnest money of Rs.6,37,500/- to the complainant within a period of one month of the receipt of notice, but the opposite parties despite the receipt of legal notice have failed to refund the amount of earnest money to the complainant. As a matter of fact the OPs were also bound to refund the amount of earnest money of Rs.3,50,000/- deposited by the complainant along with original application No.083932 along with amount of Rs.6,46,950/- paid on 25.04.2012 which the OPs have failed to refund. The opposite parties have therefore committed gross and grave acts of deficiency in service. It is, therefore, respectfully prayed that Opposite Parties are directed to refund of application amount of Rs.3,50,000/-along with earnest money of Rs.6,46,950/- along with accrued interest @ 12% p.a. The Opposite Parties are also directed to pay compensation and damages on account of mental tension & agony of Rs.1 Lac to the complainant.
2. Notice of the complaint was given to the OPs and accordingly, OPs No.1 & 2 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable and further alleged that the complainant has not come to the Hon'ble Forum with clean hands and has concealed the material fact. The complainant has intentionally not disclosed in his complaint that they has failed to deposit the installments of money within time schedule as mentioned in the allotment letter. It is further submitted that as per the Para No.3 of the allotment letter, if the installments are not deposited within six months of time schedule mentioned in the allotment letter, the allotment will be deemed to be cancelled and plot will be deemed to be forfeited. It is alleged that the Complainant has filed the present complaint with ulterior motive. The Complainant has filed this complaint with the aim to prevent the forfeiture of the amount and cancelation of the allotment, due to their failure to pay the installments of the amount as mentioned in the allotment letter. On merits, Para No.2 of is matter of record to the extent of deposit of 1/4 the of the total amount. Rest of the para is wrong incorrect and vehemently denied. It is wrong on the part of the complainant to state that "Thereafter the complainant has always been ready and willing to perform his part of the agreed terms and conditions and offered to deposit balance due as on 01.10.2013, but the other allegations as made in the complaint are categorically denied and lastly prayed that the present complaint may kindly be dismissed with cost in the interest of Justice.
3. We have heard the arguments of Ld. Counsel for the Complainant and also gone through the case file very minutely as well as written arguments filed by OPs.
4. The complainant has tendered in evidence documents Ex.C-1 is copy of allotment letter no.4620 dated 02.04.2012. Ex.C-2 is copy of application no.083932. Ex.C-3 is affidavit of complainant on the record. Ex.C-4 is copy of certificate dated 18.04.2012. Ex.C-5 is copy of letter no.2647 dated 23.12.2011. Ex.C-6 is copy of letter no.955 dated 21.08.2014. Ex.C-7 is copy of letter no.4938 dated 01.03.2016. Ex.C-8 is copy of letter. Ex.C-9 is copy of letter dated 27.05.2016. Ex.C-10 is copy of payment receipt dated 25.04.2012. Ex.C-11 is copy of legal notice dated 14.09.2018. Ex.C-12 is postal receipt. Ex.C-13 is photograph and Ex.C-14 is copy of rent agreement.
5. To refute this evidence of complainant, OPs tendered in evidence affidavit of Surinder Kumari Executive Officer JIT as Ex.OP-A. Ex.OP-1 and Ex.OP-2 is copy of allotment letter dated 12.11.2012, in letters complainant is directed to deposit installment as per schedule mentioned in the allotment letter. Ex.OP-3 is copy of letter dated 11.11.2013. Ex.OP-4 is copy of letter dated 09.09.2014. Ex.OP-5 is copy of letter dated 01.03.2016. Ex.OP-6 is copy of letter dated 13.11.2018. Ex.OP-7 to Ex.OP-15 are copies of photographs on the record. Ex.OP-16 is copy of letter dated 08.03.2019.
6. It is evident that the complainant was allotted plot no. 218-D by OPs in scheme floated by them namely Surya Enclave Extension (94.97 Acres) for sale consideration of Rs.6,37,500/-, this fact is proved from document Ex.C-1 on the record. The complainant alleged that OPs are not provided the basic amenities to him. The complainant also alleged deficiency in service and unfair trade practice on the part of OPs. He also alleged that he had taken a loan from Punjab Gramin Bank Kapurthala to the tune of Rs.3,40,000/- for purchase of the plot in question. He was shocked to know that site of the scheme area was lying in an ignored condition and there was no development at the site in question. Even it was not possible for him to identify and locate the plot allotted to him.
7. On the other hand, the contention of OPs is that complainant failed to pay the installments and take possession of the plot despite repeated letters sent to him. OPs could not develop scheme land for want of possession and then they could not provide basic amenities like roads, sewerage, sanitation and water supply etc. The possession of the site of scheme land and allotted plot has never been with OPs and it carved out the scheme without having got possession to undertake any development and to provide basic amenities.
8. From perusal of entire record, it reveals that the OPs not provided the basic amenities to complainant, even he wrote letter to OPs Ex.C-8 that there is no basic amenities like roads, light, sewerage, water supply. This letter proved that the complainant requested OPs to provide all basic amenities which has not provided by them to complainant. Ex.C-14 rent agreement executed between complainant and Sarwan Singh. In clause no.10 of the agreement it has specifically mentioned that flat has been delivered in good condition. From perusal of photograph Ex.C-13 it is clear that the land where plot was allotted to the complainant no progress is made out by OPs. The land in question is plane. Even OPs wrote letter no.4938 dated 01.03.2016 Ex.C-7 to complainant that some owners filed petition before Hon’ble High Court Chandigarh, so in these circumstances development work was not done by OPs , but now Hon’ble High Court passed order dated 22.12.2015 in favour of OPs, therefore, the development works like roads, water supply and sewerage in the allotted plots are going on in high speed. But despite this letter, no development work was done by OPs. The complainant also wrote letter Ex.C-8 to OPs regarding not providing basic amenities by them in the allotted area. But inspite of this letter, OPs failed to do so. The OPs leveled allegation against complainant that he has not deposited the remaining installments but in letter Ex.C-9 it has specifically mentioned by complainant that due to stay granted by Hon’ble High Court , he could not deposit the installments and he also mentioned in this letter that he is ready to deposit the installments with interest. The OPs failed to provide the basic amenities as agreed by them at the time of allotment of the plot in question.
9. Taking into consideration the entire evidence on the record and hearing respectful submissions of counsel for the parties, we conclude that OPs mis-utilized the money deposited by the complainant without completing the construction of the plot as agreed upon. When construction is not completed, then there is no question of delivery of any possession thereof to complainant nor it is likely to be delivered in the near future because photographs placed on the record only show plane area and nothing beyond that. Our own State Commission has held in "Vaneet Sood versus Unitech Limited and others", reported in 2017 (1) CLT Page 162-163 that there may be worldwide recession and crunch in the real estate business, but the OPs were bound to fulfill their commitment under the agreement for developing the project and delivering the possession of the flat to the complainants within the agreed time. The force majeure circumstances would not relieve the OPs from their solemn duties to complete the construction within time. We find no such evidence on the record on the part of the OPs to substantiate the alleged circumstances justifying the delay in the construction of the project. The complainant strenuously stressed that no construction has been significantly started by the OPs in this case and as such the complainant stood deprived of their legal right of residence in the plot to be allotted to him within time. We find force in the submission of counsel for complainant on this point. When the significant construction has not yet come up and hence it is taken to be a case of non-start of construction work by OPs only justifying the refund of the deposited amount by complainants with OPs in this case till now. The law laid down by Hon’ble National Commission New Delhi in case titled as Puneet Malhota versus Parsvnath Developers Ltd" reported in CC No.232 of 2014 decided on 29.01.2015, wherein National Commission has held that builder was duty bound to complete the construction in time, irrespective of recession in the market, reduction in the bookings and the alleged default on the part of some of the allottees in not making the payment in time. As per agreement, the complainants were required to pay in the event of delay on their part in making the payment to OPs. National Commission held that logically, if the seller is charging interest from the buyer @ 24% per annum, it should have no hesitation in paying interest at the same rate to him in the event of its failure to complete the construction within time-frame, as agreed upon between the parties. In view of law laid down by Apex Court in Ghaziabad Development Authority versus Chander Bhan Singh, reported in 2004(3) CPJ 20 (S.C) awarding 18% rate of interest per annum over the deposited amount from the date of deposit till date of payment would be reasonable one. We follow the dictum of Apex Court set down in the above authority.
10. Considering the facts and circumstances of the case and law laid down in Ghaziabad Development Authority versus Chander Bhan Singh (supra) , we hold that the complainants are entitled to refund of the entire deposited amount along with interest @ 18% per annum from the date of deposit of the deposited amount till date of actual payment from OPs.
11. In the light of our above discussion, we allow the complaint of the complainant and OPs are directed to refund the entire deposited amount with interest @ 6% per annum from the date of deposit till its actual payment. The complainant is also entitled Rs.10,000/- as compensation including cost of litigation and Rs.5000/- deposited in the Legal Aid Fund of this Commission.
12. The compliance of the order be made within one month from receipt of copy of this order.
13. The copies of the order be sent to the parties, as permissible, under the rules.
14. File be indexed and consigned to the record room after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
9th Day of February 2021
(Kuljit Singh)
President
(Jyotsna)
Member
