DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .

                                                                         RBT Complaint No. 223

 Instituted on:  25.06.2018

                                                                         Decided on  :  18.01.2023       

1. Anuradha Gupta aged 38 years wife of Ashwani Kumar r/o 14-B, 5th Floor, New improvement Trust flats, SST Nagar Patiala.                                                                   …. Complainant.                                                      Versus

1. Improvement Trust, Chottibaradari, Patiala through its Chairman
2. Executive Officer Improvement Trust, Chottibaradari, Patiala.

                                                               ….Opposite parties. 

QUORUM          

JOT NARANJAN SINGH GILL: PRESIDENT

KANWALJEET SINGH             : MEMBER

For the complainant  : Shri Yogesh Rai Mangla, Adv.              

For the Ops              : Shri Amandeep Singh Saran,Adv.

ORDER BY

KANWALJEET SINGH, MEMBER.

As per orders of the Hon'ble State Commission, vide Endst.No 10226 dated 26.11.2021, the present file received by transfer from District Consumer Disputes Redressal Commission, Patiala vide receipt no.481 dated 30.11.2021 to this Commission.

1. Complainant has alleged in the complaint that complainant had purchased one flat MIG bearing no. 14-B, 5^th floor from Vishal Mittal. Earlier, Radhe Shyam Garg(first allottee) was allotted above said flat by Ops vide allotment letter no. 1499 dated 07.05.2010 and the said flat was transferred to Vishal Mittal by the original allottee through Ops on 12.06.2012.  Ops issued a letter of No Objection bearing no. PIT/13/2923 dated 11.11.2013 in favour of the complainant. The Ops transferred the flat in favour of complainant vide transfer letter no. 14 dated 01.01.2014. Ops sent a letter bearing no. PIT/14/1766 dated 11.06.2014 wherein the complainant was asked to obtain possession at the site on 18.06.2014. Complainant went to the site and was shocked to see that flats were totally incomplete and no civil work was completed as No Electricity, No Sewer work, No Water connection, Gate etc were provided. In this way, the possession could not be taken. The work of sewerage was completed on 30.09.2015. The work of the water supply was completed on 24.07.2015. Similarly work of parking was completed on 30.09.2015. So, at no point of imagination it can be believed that the possession was ready at that time. As per the scheme of Ops, The possession was to be delivered by them on 25.09.2012 and thereafter they were to charge the interest, but ops have charged interest without delivery of possession and without any right, authority. The complainant has purchased the flat for her residence. Nine flat holders filed consumer complaints. All complaints were allowed and Ops were directed to make payment of interest from the date of committed possession to the date of actual payment. Ops has filed appeal to Hon'ble State Commission and same was dismissed. Ops preferred appeal before Hon'ble National Commission, Wherein National Commission has modified the Order of Consumer Forum ordering the Ops to make payment of interest from the date of committed possession to the date of actual possession @ 12% per annum. Cause of action to file complaint has arisen to the complainant firstly on 25.09.2012, when the possession was not delivered as the cause of action is recurring one as the Ops has still failed to pay the interest and in addition in view of judgment of Hon'ble National Commission on 05.06.2018 the complainant has got cause of action as such the present complaint has been filed within limitation and without any delay. Complaint may kindly be allowed and Ops be direct to provide complete facilities as per their offer letter to the complainant immediately lift with proper backup, fire fighting system and further Ops should be directed to make payment of rental value of Rs. 15,000/- per month from 25.09.2012 onwards till providing of basic required amenities to enable the complainant to live in the flat and they should also be burdened with cost of Rs. 2,00,000/- for claiming enhancement and on account of mental pain, agony and harassment and Rs. 2,00,000/- as litigation charges and interest @12% per annum on the amount deposited by the complainant from the date of committed possession to the date of delivery and then @12% till the actual realization. In view of the orders of Hon'ble National Commission.
2. Upon notice, Op.no.1 &2 has appeared and filed written reply and taking preliminary objections that complaint is time barred. Complainant is not a consumer and there in no deficiency in service on the part of Ops. The Forum has no jurisdiction to try and decide the complaint. On merits, Ops floated a scheme known as development scheme for semi finished HIG & MIG Flats under the self finance Scheme and a brochure with terms and conditions was issued by Ops for flats. Radhe Shyam Garg has become successful winner in a draw of flats held on 28.12.2009 of MIG, 14-B, 5^th floor Block-B, area of 1600 square feet. Radhe Shyam Garg executed an agreement of sale with Ops. Radhe Shyam Garg has given an application alongwith affidavit for transfer of the flat to the Ops in the name of Vishal Mittal and also produced an agreement of sale of flat alongwith affidavit. The said flat was transferred to Vishal Mittal by the Ops vide letter bearing no. PIT/12/1706 dated 12.06.2012. Vishal Mittal filed an application alongwith affidavit to the Ops for the transfer of flat in the the name of complainant. It is denied by Ops that letter no. PIT/14 dated 01.01.2014 has been issued by Ops in favour of complainant and requisite transfer fee Rs.96,500/- was got deposited by the complainant through Radhe Shyam Garg. No objection isseud by the Ops in the name of complainant vide letter no. PIT/13/2923 dated 11.11.2013. In fact letter no. PIT/13/1 dated 01.01.2014 was issued by the Ops. As per clause 11 the possession of the flat was to be given within 2 and half years from the date of allotment. The first 5 installment were to be paid without interest and remaining installments were to be paid with interest after the delivery of possession. It is denied by Ops that the fact of delivering of possession on 18.06.2014 was totally false. It is denied ops offered the possession was to be delivered on 25.09.2012. It is denied the interest was charged without delivering possession. Further, Ops denied all the remaining allegation leveled by complainant. It is denied flat was delivered by Ops by 25.09.2012 or till 05.04.2016 ops did not offer the possession. Ops have already provided the lift in the scheme as per terms and conditions of brochure. Ops had already provided the basic common services in the scheme. Further as per clause of agreement the condition to become the member of registered welfare Association, is not fulfilled by complainant and the complainant has not paid any contribution towards registered Welfare Association for the maintenance of common services. All the common Services in the scheme to be maintained by allottee. Complaint may kindly be dismissed with exemplary cost.
3. Complainant has tendered into evidence Ex. C-A affidavit alongwith documents Ex.C-1 to Ex.C-15 and closed the evidence. Similarly, Ops tendered into evidence Ex. Op-A affidavit of Sh. Rajesh Kumar Chaudhary, EO of Op alongwith documents Ex. R-1 to Ex.R-30 and closed the evidence of Ops.
4. We had heard the learned counsel of both the parties and gone through the record file carefully with the valuable assistance of the learned counsels for the parties. During arguments the contentions of the learned counsel of both the parties are similar to their respective pleadings. So, there is no need to reiterate the same to avoid repetition. Now come to major controversy whether the complainant is liable for relief as claimed by him in his prayer?
5. No doubt it is admitted fact that one flat MIG bearing no. 14-B, 5^th floor was allotted to one Radhe Shyam Garg. Complainant had purchased the said flat from Vishal Mittal. A transfer fee of Rs. 96,500/- was deposited by the complainant and thereafter the Ops issued a transfer letter Ex.C-3 bearing no. PIT/12/1706 dated 12.06.2012. Vishal Mittal filed an application alongwith affidavit to the Ops for the transfer of the said flat in the name of complainant. Op sent a letter no. PIT/14/1 dated 01.01.2014 which is Ex.C-6 transfer the ownership of the flat in the name of complainant. wherein the complainant was asked to obtained possession at the site on 18.06.2014. As per Ex.C-7 while on the other hand, reply on merit of Op para.no.6, they pleaded that Radhe Shyam Garg original allottee has obtain the possession of the flat after depositing the amount of flat with the Ops and the possession was transfered to Vishal Mittal. It is admitted fact that Vishal Mittal sold the flat to the complainant. As per Ex.R-11 agreement for sale the flat was allotted on 07.05.2010 to the first purchaser Radhe Shyam Garg. This Commission considered that As per Ex.R-13 Affidavit dated 08.06.2012 executed by the original Allottee duly attested by Executive Magistrate, Patiala regarding the above said flat Radhe Shyam Garg was the absolute and undisputed owner. Further, Ex.R-14 the first allottee of the flat Radhe Shyam Garg executed a affidavit dated 08.06.2012 in favour of Vishal Mittal regarding the sale of the flat. Ex.R-15 affidavit executed by Second purchaser Vishal Mittal on 12.06.2012 and admitted in para.no.2 of the affidavit that he had purchased the flat from Sh. Radhe Shyam Garg. Ex.R-15 affidavit was attested by the Executive Magistrate, Patiala on 12.06.2012. Ex.R-16 an agreement executed between first allottee and second purchaser in the presence of two witnesses and put their respective signature on it with sound disposing mind. As per Ex.R-21 dated 21.10.2013 Vishal Mittal moved a written request to Ops regarding the permission to sell the flat no. 14-B,  Further As per Ex.R-26 Vishal Mittal executed an affidavit dated 13.12.2013 for sale of flat to the complainant and second purchaser Vishal Mittla admitted this fact at para.no.1 of the affidavit that he is the owner and possession of the flat. In the light of Ex.R-27 an affidavit executed by complainant on 13.12.2013 that she has purchased a flat no. 14-B, 5^th floor, New Improvement Trust Flats, S.S.T.Nagar, Patiala. We have examined the documents Ex.R-13 to R-16 and observed that the flat in question firstly allotted to Radhey Shyam Garg and he sold the flat to Vishal Mittal then Vishal Mittal sold the flat to the complainant and also delivered the possession to the complainant.
6. It is writ large on the file that the learned counsel of the complainant highlighted the orders Ex.C-13 to Ex.C-15 decided by District Consumer Forum, Patiala to National Commission. This Commission observed that neither the original allottee Radhe Shyam Garg nor the second purchaser Vishal Mittal and the complainant was the party in these orders. The District Consumer Forum, Patiala directed to the Ops to deliver the physical possession of the flat alongwith interest. Present case in hand, the complainant is not seeking any possession from the Ops. So, the orders of the District Consumer Forum, Patiala to Hon'ble National Commission are not applicable in this case. Moreover, in the present case the original allottee of the flat had already been executed agreement for sale on 07.05.2010 between the Ops. Further, as per Ex.R-14 affidavit executed on 08.06.2012 by the original allottee Radhe Shyam Garg in favour of Vishal Mittal regarding the sale of the flat. The said affidavit also attested by Executive Magistrate, Patiala on 08.06.2012. Similarly, as per Ex.R-15 Vishal Mittal executed an affidavit for purchasing the flat from the original allottee Radhe Shyam Garg. The affidavit also attested by Executive Magistrate, Patiala on 12.06.2012. As per Ex.R-26 Vishal Mittal executed an affidavit on 13.12.2013 in favour of the complainant. "A Man can lie but document can't." It seems to this Commission that the complainant intentionally did not appended the previous sale deed of flat alongwith other documents in the complaint. The complainant has concealed True and Material facts to this Commission that on which date the first purchaser had transferred the ownership and possession of the flat was delivered to the second purchaser namely Vishal Mittal and Vishal Mittal has transferred the flat on which date the sale deed was executed to the complainant. Complainant has not come to this  Commission with clean hand. As Ex.R-14 and R-25 to R-28 are the affidavits and agreement of sale of flat.These documents attested by Executive Magistrate, Patiala and Notary, Patiala. It pertinent to mention here that  as per Ex.C-6 Ops transfer the flat on 01.01.2014 to the complainant. As per Ex.C-7 the Ops provided the possession to the complainant on 18.06.2014. While on the other hand, complaint has been filed on 25.06.2018. The Consumer Protection Act is a special Act. It prevails on the general Act. As per Section 69- limitation period to file the complaint before the Consumer Commission is two years. Therefore, complaint filed by the complainant is hopelessly time barred. Moreover, the complainant has miserably failed to produce any cogent evidence regarding condonation of delay. However the complainant is unable to exhibit/produce any technical report, photographs, affidavit of the neighbor of the locality where the complainant presently residing in the flat regarding the basic amenities are not provided by the Ops.  It is the duty of complainant to prove his case by way of documentary evidence regarding what is the actual and factual position at the spot of the flat.
7. Resultantly, keeping in view the facts and circumstances of the present complaint in hand we dismiss the complaint of the complainant.
8. The complaint could not be decided within the statutory time period due to heavy pendency of cases.
9. The file be return to the District Consumer Commission, Patiala. The Copy of this order be supplied to the parties by the District Consumer Commission, Patiala .        

                                Announced.

                                January 18, 2023.

                           ( Kanwaljeet Singh)    (Jot Naranjan Singh Gill)

                                     Member                            President