DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .

                                                                         RBT Complaint No. 226

 Instituted on:  25.06.2018

                                                                         Decided on  :  18.01.2023       

1. Baljeet Singh aged 57 years, S/o Sh. Dalip Singh, R/o Flat No. 6-C, 2^nd 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 Vaibhav 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 HIG bearing no. 6-C, 2^nd floor from Shalu Singla. Ops issued a transfer letter no. PIT/13/1224 dated 14.05.2013 in favour of the complainant. The Ops has sent a letter bearing no. 1778 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 his residence. Nine flat holders filed consumer complaint. All complaints were allowed and Ops were directed to make payment interest from the date of committed possession to the date of actual payment. Ops appealed 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 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. Shalu Singla has become successful winner in a draw of flats of HIG,6-C Second floor, block-C and allotment letter no. PIT-10/1503 dated 07.05.2010 was issued.  5^th installment was paid on 25.09.2012 and the balance payment of the flat was paid on 08.03.2013. Yogesh Jindal General Power of Attorney of Shalu Singla has given an application alongwith affidavit for transfer of the flat to the Ops in the name of Complainant and also produced an agreement of sale along with affidavit. Ops after completing the formalities transferred the flat in the name of complainant and requisite transfer fee was deposited with the Ops on 14.05.2013. The flat was transferred by the Ops in the name of complainant vide letter no. PIT13/1224 dated 14.05.2013. 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 that the possession was to be delivered on 25.09.2012. It is denied that the interest was charged without delivering possession. Further, Ops denied all the remaining allegation leveled by complainant. It is denied that flat was delivered by Ops on 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 of the complainant 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-18 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 HIG bearing no. 6-C 2^nd floor was allotted to one Shalu Singla. Complainant had purchased the said flat. A transfer fee of Rs. 1,21,750/- was deposited by the complainant through Shalu Singla on 14.05.2013 and thereafter the Ops issued a transfer letter bearing no. PIT/13/1224 dated 14.05.2013 in favour of the complainant. Op sent a letter no. 1778 dated 11.06.2014 wherein the complainant was asked to obtain possession at the site on 18.06.2014. While on the other hand, reply on merit of Op para.no.6, they pleaded that Yogesh Jindal General Power of Attorney of allottee Shalu Singla has obtain the possession of the flat after depositing the amount of flat with the Ops and the possession was transfer to the complainant. It is admitted fact that Shalu Singla sold the flat through his Power of Attorney to the complainant. As per Ex.C-4 the affidavit executed by Yogesh Jindal on behalf of Shalu Singla regarding the sale of the flat. As per para no.1 of the affidavit Ex.C-4 it is pertinent to mention that Shalu Singla was the owner and in possession of the flat. The said affidavit also attested by Executive Magistrate, Patiala on 08.03.2013. As per Ex.R-4 agreement for sale document executed between the first purchaser Shalu Singla and Op on 10.06.2010. As per Ex.R-16 agreement executed on 08.03.2013 between complainant and the Power of Attorney of first purchaser of the flat regarding the sale of the flat. As per para.no.1 of this agreement they admitted that the flat allotted on 07.05.2010 to the first purchaser Shalu Singla and she was the owner and in possession of the flat. This Commission considered that As per Ex.C-4, Ex.R-4 and Ex.R-16 the first purchaser 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, State Commission and National Commission. This Commission observed that neither the complainant nor the first purchaser Shalu Singla 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. 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 complainant had already been executed agreement for sale on 10.06.2010 between the Op. Further, as per Ex.R-16 agreement was executed on 08.03.2013 between complainant and the Power of Attorney of first purchaser of the flat regarding the sale of the flat.As per Ex.C-4 the Power of Attorney of Shalu Singla has executed an affidavit dated 08.03.2013  regarding sale of the flat in favour of complainant. Similarly, complainant also executed an affidavit dated 08.03.2013 regarding the purchase of flat.Both the affidavits are duly attested by Executive Magistrate, Patiala. It is well settled Principal "A Man can lie but document can't." It seems to this Commission that the complainant intentionally did not appended the sale deed of flat alongwith other documents. Complainant has concealed the true and Material facts regarding the date on which the first purchaser has transferred the ownership and possession of the flat to the complainant. Complainant has not come to the Consumer Commission with clean hand.Ex.C4 to Ex.C6 and Ex.R14 to R16 are the affidavits and agreement of sale of flat executed on 08.03.2013.These documents attested by Executive Magistrate, Patiala and Notary, Patiala on 08.03.2013. As per Ex.C-8 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 residents of the locality, where the complainant presently residing in the flat regarding the basic amenities which 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 as per rules by the District Consumer Commission, Patiala .       

                                Announced.

                                18 January, 2023.

     ( Kanwaljeet Singh)        (Jot Naranjan Singh Gill)

             Member                       President