DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

 

Complaint Case No : CC/52/2020

Date of Institution : 06.02.2020

Date of Decision : 01.02.2021

Shavi Garg aged about 34 years son of Sh. Parbodh Kumar resident of Street No. 3, Dream City, Ward No. 8, Dhanaula, Tehsil and District Barnala. …Complainant

Versus

Improvement Trust, 25 Acre, Barnala through its Executive Officer. 

...Opposite Party

Complaint Under The Consumer Protection Act, 1986.

Present: Sh. Dhiraj Kumar counsel for complainant.

Sh. Anuj Mohan counsel for opposite party.  

Quorum.-

1. Sh. Kuljit Singh : President

2. Sh. Tejinder Singh Bhangu : Member

(ORDER BY SHRI KULJIT SINGH PRESIDENT):

    The complainant Shavi Garg filed the present complaint under  the Consumer Protection Act 1986 (as amended up to date) against Improvement Trust, Barnala. (in short the opposite party). 

2. The facts leading to the present complaint as stated by the complainant are that the opposite party had developed a colony at Dhanaula Road, Barnala in the name of Maharaja Aggarsain Enclave and in this colony the LIG Flats were sold through allotment by the opposite party. It is further alleged that complainant had agreed to purchase one Flat No. 16, Ground Floor under General Category through letter No. 1126 dated 9.8.2011 of opposite party against Rs. 10,70,000/- so complainant is consumer of the opposite party.

3. It is further alleged that the opposite party had also agreed with the complainant that he will pay the said amount through installments and out of this amount the complainant had deposited an amount of Rs. 1,07,000/- as earnest money and after the allotment being 1/4th share of total amount the balance amount of Rs. 1,60,500/- alongwith Rs. 42,200/- cess total Rs. 2,03,300/- was also deposited by the complainant as advance. It has also agreed between the complainant and the opposite party that remaining amount of the said flat will be deposited through half yearly 10 installments of Rs. 80,250/- each. It was also agreed between the complainant and the opposite party that the possession of the flat will be given to the complainant on 8.2.2014 and the opposite party assured to the  complainant that at the time of delivery of possession flat will be completed from all aspects alongwith facility of water and electricity etc. After that five installments continuously paid by the complainant to the opposite party as per agreement.  

4. It is further alleged that it was also agreed between the complainant and opposite party that after the delivery of possession to the complainant, remaining amount of installments were deposited by the complainant with the opposite party alongwith interest at the rate of 1% per month but the said flat was not completed by the opposite party within stipulated time which was agreed. The complainant many times requested the opposite party for completion of flat and for delivery of possession but opposite party linger on the matter on one pretext or the other instead of completion of flat or delivery of possession after completion of flat. The opposite party wrongly received 6th to 10th installments alongwith interest from the complainant without giving possession of the flat to the complainant. The opposite party wrongly received Rs. 24,075/- as interest with 6th installment, Rs. 19,260/- as interest with 7th installment, Rs. 14,445/- as interest with 8th installment, Rs. 9,630/- as interest with 9th installment and Rs. 4,815/- as interest with 10th installment from the complainant without giving possession of flat to the complainants. The opposite party was not entitled for interest but after the violation of the agreement the said amount was wrongly claimed and received by the opposite party from the complainant. When on 20.1.2020 the complainant visited the flat then the complainant astonished to see that the walls of flat were not properly plastered and even the windows and gates of flat were not installed and sanitation work was also remained. Even taps were also not installed there. In this way flat was not ready for possession or residence of complainant. Further, poles of transformer were not installed near the flat from which the electricity connection can be easily connected for flat. Further, there is leakage in the pipes of drainage and some pipes of drainage were blocked. The complainant also requested for completion the work of flat and requested for delivery of possession of flat but they refused to do the same. The complainant also got issued notice dated 27.1.2020 to the opposite party but all in vain. The act of opposite party is not only deficiency in service but also unfair trade practice. Hence, the present complaint is filed seeking the following reliefs.-

1) The opposite party may be directed to refund Rs. 10,70,000/- the amount of said flat and Rs. 42,200/- amount of cess alongwith amount of Rs. 72,225/- received as interest from the complainant totaling Rs. 11,84,225/- alongwith interest.  

2) To deliver the possession of the flat after completion of work from all aspects alongwith facility of water, electricity, drainage etc within stipulated period alongwith refund of amount of interest Rs. 72,225/- which was wrongly received by the opposite party.  

3) To pay Rs. 30,000/- as compensation for mental agony and harassment and to pay Rs. 10,000/- on account of litigation expenses.

4) Any other relief this Commission deems fit. 

5. Upon notice of this complaint, the opposite party filed written version taking legal objections interalia on the grounds that complainant has no locus standi and cause of action to file the present complaint and estopped from filing the present complaint. Further, he has not come with clean hands and this Commission has got no jurisdiction to try the present complaint. Further, complaint is bad for non joinder of necessary parties.  Further, the complaint filed by the complainant does not fall within the definition of consumer dispute. 

6. On merits, the opposite party submitted that they published for Advertisement for LIG flats in the name of Maharaja Aggarsain Enclave, Barnala and complainant applied for LIG flat which was allotted to him through draw vide allotment dated 9.8.2011 and said flat falls in LIG flats Block-B. But the complainant has not fulfilled the condition No. 13 of the said allotment letter and he has not entered into the agreement with the opposite party within 30 days of the allotment of flat. Further, it is admitted by the opposite party that complainant had deposited the said amounts with the opposite party. The water supply, sewerage facility and electricity supply had already been given to the flat. Further, water supply in the said enclave was provided in the year 2010 and sewerage supply was also provided in the year 2010, to this affect a letter dated 29.9.2017 was given by Punjab Water Supply and Sewerage Board, Barnala. Further, construction of roads were completed on 25.10.2010 and street lights were completed on 10.7.2010. The parks were also completed in the said scheme on 19.10.2012. Further, the construction of pavement and boundary wall in the said scheme were completed on 11.2.2013. Further, as per record of the opposite party the structure, plaster, wood work, sanitation and flooring work of LIG flats Block-B have since been completed on 21.11.2012. The opposite party never refused to deliver the possession of the flat allotted to the complainant. Further, some residents of Barnala City has filed complaints against some of the officials of Improvement Trust, Barnala regarding the misappropriation of funds in 30 LIG flats Block-B in the said enclave and from the office of Principal Secretary, Punjab Government an inquiry was conducted regarding the same which is still pending due to which construction of said flats have delayed. The opposite party never refused to deliver the possession of the flat soon after the completion of construction with the approval of Punjab Government which will be completed as soon as possible. The opposite party received the installments as per the allotment letter dated 9.8.2011. Further, two transformers were installed by PSPCL in the said scheme and electricity connections were given to the flats from the said transformers. Rest of the contents of the paras of the complaint are denied by the opposite parties. Lastly, opposite party prayed for the dismissal of the present complaint with costs. 

7. In support of his complaint, complainant tendered into evidence his own affidavit as Ex.C-1, copy of allotment/agreement dated 9.8.2011 Ex.C-2, copies of installments receipts Ex.C-3 to Ex.C-13, copy of legal notice Ex.C-14, postal receipt Ex.C-15, copy of letter No. 1240 dated 29.9.2017 Ex.C-16, copy of list of allegations and detail of allegations Ex.C-17 to Ex.C-19 and closed the evidence. 

8. To rebut the case of the complainant, the opposite party tendered into evidence affidavit of Ravinder Kumar Ex.OP-1, copy of brochure Ex.OP-2, copy of letters dated 1.2.2018 Ex.OP-3 and Ex.OP-4, copy of measurement book Ex.OP-5, copy of letter dated 1.2.2018 Ex.OP-6, copy of measurement book Ex.OP-7, copy of letter dated 1.2.2018 Ex.OP-8, copy of letter dated 1.2.2018 Ex.OP-9, copy of measurement book Ex.OP-10, copy of letters dated 1.2.2018 Ex.OP-11 and Ex.OP-12, copy of letter  dated 29.9.2017 Ex.OP-13, copy of photograph Ex.OP-14, copy of letter dated 5.7.2018 Ex.OP-15, copy of charge sheet Ex.OP-16 and closed the evidence.   

9. We have heard the learned counsel for the parties and have gone through the record. Written arguments also filed by the opposite party. 

10. It is admitted fact between the parties that complainant applied for a LIG flat with the opposite party which was allotted to him vide letter dated 9.8.2011 Ex.C-2 which falls in the LIG Flats Block-B. It is also admitted by the opposite parties that complainant deposited all the amounts with regard to the flat allotted to him vide receipts Ex.C-3 to Ex.C-13. The grievance of the complainant in the present complaint is that even after receiving full amount of the flat alongwith interest the opposite party failed to deliver the possession of the said flat alongwith all the facilities like water, electricity, drainage etc.

11. On the other hand the opposite party submitted in their written version and affidavit of Ravinder Kumar Executive Officer Improvement Trust Barnala Ex.OP-1 that they have provided almost all the facilities to the flat and Maharaj Aggarsain Enclave where the said flat is situated. However, he deposed in his affidavit that some inquiry against some officials of the opposite party is still pending due to which construction of the flats have delayed and the delivery of possession has not been made to the complainant. To rebut the delay of delivery of possession they filed copy of Pamphlet Ex.OP-2 in which at condition number 12 it is mentioned that the period of construction of houses is fixed as two years and six months but it can be delayed and in that situation as the scheme is half self-finance scheme so no claim can be lodged for any delay. 

12. The opposite party filed certificate dated 1.2.2018 Ex.OP-3 to prove that the construction of LIG Flats Block-B has been completed on 21.11.2012. They further filed certificate dated 1.2.2018 Ex.OP-4 and copy of measurement book Ex.OP-5 to prove that the work of construction of roads has been completed on 25.10.2010. The opposite party further filed certificate dated 1.2.2018 Ex.OP-6 and measurement book Ex.OP-7 to proved that the work of supply and erection of street lights has been completed on 10.7.2010. They further filed copy of certificate dated 1.2.2018 Ex.OP-8 to prove that construction of park has been completed on 19.10.2012. Further, vide copy of certificate dated 1.2.2018 Ex.OP-9 and copy of measurement book Ex.OP-10 the opposite party proved that the work of construction of pavement and road alongwith boundary wall has been completed on 11.2.2013. They further filed copy of certificate Ex.OP-11 to proved that the work of putting of sewerage has been completed in the year 2010 and vide copy of certificate Ex.OP-12 they proved that the work of facility of drinking water has been completed in the year 2010. From all these documents the opposite party proved that they have completed all the work with regard to the construction of flat in question and other facilities related to that flat. Further, from copy of photograph Ex.OP-14 the opposite party proved that they have installed two transformers for electricity connection in the said scheme. But from copy of letter Ex.OP-13 it is proved on the file that the sewerage pipe in the Maharaja Aggarsain Enclave scheme has been inserted in the year 2010 but as there is no sewerage at main road so no sewerage connection can be adjoined with the sewerage. From copy of list of allegations Ex.OP-15 and Ex.OP-16 against Baljeet Kumar Assistant Trust Engineer, Improvement Trust, Barnala it is proved on the file that inquiry is pending against him for financial loss to trust and benefit to contractor. 

13. On the other hand the complainant failed to prove on the record by way of any documentary evidence that the opposite party ever refused to deliver the possession of the flat in question. However, from the documents tendered by the opposite parties on the file it is proved on the file that the work of construction of flat and Maharaja Aggarsain Enclave Scheme where the said flat situated has been almost completed and only sewerage connection has not adjoined with the main sewerage connection. Further as per condition No. 12 of pamphlet Ex.OP-12 the complainant cannot claim any damages for delay in delivery of possession. 

14. From the copy of allotment letter dated 9.8.2011 Ex.C-2 it is proved on the file that the flat in question was allotted to the complainant more than nine years ago but till date no possession of this flat has been given to him even after receipt of full payment of this flat alongwith interest. In our view however it is mentioned in pamphlet at condition No. 12 that complainant cannot claim any damages for delay in delivery of possession but this does not mean that opposite party is at liberty for any inordinate delay to complete this scheme specially when the opposite party received full payment from the complainant for the flat in question and last installment was received on 8.8.2016. 

15. The Hon'ble National Commission, New Delhi in case titled Vinamra Shyamji Sharma Versus Three C. Shelters Pvt. Ltd. And another reported in IV (2019) CPJ-339 (NC) held as under.-

“Consumer Protection Act, 1986- Sections 2(1)(g), 14 (1)(d), 21(a)(i)- Housing-Non delivery of possession-Deficiency in service-OPs have not been able to complete project in time and deliver possession of property in question to complainant in time as per allotment letter or Apartment Buyer Agreement- Allottees have right to ask for refund if possession is inordinately delayed and particular beyond one year- Project is not yet complete thought possession was to be given in February 2016- OP-2 has take defence of force majeure conditions for delay- There was no ban on construction and OPs should have put their resources and managerial skills to bring water from outside and to complete construction in time- As OP-2 has received all amount paid by complainant, OP-2 would be liable to refund same to complainant-No question of forfeiting any earnest money as sole responsibility for delaying project is of OP-2 and OP-1-Directed to complete construction work and hand over physical possession till 30th November 2019- If possession not delivered, complainant shall be at liberty to take refund of deposited amount alongwith interest at the rate of 10% per annum.”

This citation of the Hon'ble National Commission New Delhi is fully applicable to the present facts and circumstances of the case. In the present case also the opposite party not delivered the possession to the complainant even after the receipt of the full amount from him. Further, in the present complaint the scheme is already inordinately delayed and particularly more than six years delay in completing the project as mentioned in the pamphlet Ex.OP-2. Further, in the present case also there is no ban on construction so this inordinate delay is sole responsibility of the opposite party. So, by not completing the same and by not delivering the possession of the flat to the complainant is clear cut deficiency in service and unfair trade practice on the part of the opposite party. 

16. Further, the opposite party charged interest from the complainant amounting to Rs. 72,225/- with the last five installments vide receipts Ex.C-9 to Ex.C-13 whereas this interest only can be charged by the opposite party from the complainant in case the opposite party delivered the possession of the flat to him in time. So, the opposite party is not entitled to any interest from the complainant. 

17. In view of the above discussion and citation of Hon'ble National Commission, New Delhi mentioned above, present complaint is partly allowed. Accordingly, opposite party is directed to deliver the possession of the flat to the complainant after completing of work from all aspects alongwith all the basic facilities like water, electricity, drainage, street lights, roads etc. Further, the opposite party is directed to refund the amount of Rs. 72,225/- to the complainant which was charged by opposite party on account of interest. The opposite party is also directed to pay consolidated amount of compensation to the tune of Rs. 20,000/- to the complainant on account of mental tension, harassment and litigation expenses. The opposite party is further directed to deposit Rs. 10,000/- as costs in the Consumer Legal Aid Account maintained by this Forum. Compliance of the order be made within the period of 45 days from the date of the receipt of the copy of this order. Copy of this order be supplied to the parties free of costs. File be consigned to records after its due compliance.

ANNOUNCED IN THE OPEN COMMISSION:

        1st  Day of February 2021

 

 

            (Kuljit Singh)

            President

              

(Tejinder Singh Bhangu)

Member