BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.298 of 2021

      Date of Instt. 08.09.2021

      Date of Decision:11.12.2024

Jaspreet Kaur aged about 42 years W/o Dr. Arvind Kumar at present A-304, N. I. T. Jalandhar City.

..........Complainant

Versus

1.       Jalandhar Improvement Trust, Model Town Road, Jalandhar City-144001 through its Chairman.

2.       Jalandhar Improvement Trust, Model Town Road, Jalandhar City-144001 through its Executive Officer.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                                      (Member)

                   Sh. Jaswant Singh Dhillon       (Member)

Present:       Sh. J. L. Naagar, Adv. Counsel for Complainant.

                   Sh. Brijesh Bakshi, Adv. Counsel for OPs.

Order

Dr. HarveenBhardwaj(President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the OPs had introduced a Development Scheme in March, 2016 for Freehold Residential Plots named 94.97 Acres (Surya Enclave Extension), at Jalandhar. The complainant being eligible felt allured and applied for the said for the scheme is question had also applied for allotment of one such plot measuring 200 sq. yards in General Category vide an application strictly in accordance with the terms and conditions as ascertained and determined by the OPs. The complainant also deposited the requisite application fee vide demand draft no.244269 dated 22.04.2016 for Rs.3,40,000/- drawn upon State Bank of Patiala, and favouring the OPs and desired and directed, vide receipt No.091648 dated 22.04.2016 for the purpose. Subsequently in due course the draws of lots were held on 19.05.2016 and the complainant was allotted a plot as applied for bearing No.311-D in said scheme i.e. 94.97 Acres (Surya Enclave Extension) at Jalandhar @ Rs.17,000/- per square yard and the complainant was intimated in this regard vide letter No.JIT/815 dated 06.06.2016. It was also verified by the offices of the OPs in their records vide resolution 298 dated 19.05.2016 explaining the conditions for completion of allotment and construction of the plot allotted. The complainant in strict adherence of the stipulated schedule deposited the required amount of Rs.34,85,150/- vide receipt No.65479/63449 dated 05.07.2016 well before the deadline of thirty days for lump-sum payment in strict adherence and compliance of the condition No.16 as mentioned in the letter No.JIT/815 dated 06.06.2016 aforementioned with a view to avoid any technically and legal inconvenience. But it is required to be noted with concern that the OPs have been charging the rates of interest at a very exorbitantly low rates. It is a major discrepancy to be brought to the notice of this Forum. The complainant had to manage such a heavy amount to be deposited being the price of the plot so allotted to her by borrowing and raising loan for the purpose with a sanguine hope that OPs will deliver the possession of the plot allotted to her to enable her to raise construction which will mitigate the inconvenience she and her family had been facing without her own house. Though, it is considered as a lifetime investment for having a shelter over one’s head and it was a life-time achievement. But both the OPs never took any interest or intention for development and also failed to take any step for delivery of possession to the complainant despite having executed an agreement to sell between the complainant and the OPs. The complainant tried to contact both the OPs numerously for the purpose, but the OPs always kept on putting the matter off on false and lame pretexts and excuses. Even the complainant had presented a written representation to both the OPs which was duly got recorded vide diary/receipt No.600 dated 11.07.2018 requesting for delivery for possession and allotment of the plot so allotted to the complainant and was even ordered by the competent authority on the same directing the concerned officials. But it proved to be a futile exercise. Still another representation which was got delivered to the OPs vide diary/receipt vide No.601 dated 11.07.2018 requesting for providing basis amenities at the proposed site as still it is like a barren land and with no ambience and atmosphere to be a posh residential colony as was reflected in the proposed prospectus which inviting application. And the competent authority from the offices of the OPs did ask the report but still it happen to be in a sorry state of affairs as that there is no chance of any development in the proposed area for any development for decades together. Thereafter the complainant approached both the OPs No.1 & 2, but failed to find and have anything positive from the OPs and under the prevailing set of circumstances the complainant was compelled make an alternative arrangement as despite having parted with such heavy amount she got nothing from OPs No.1 & 2 except stress and tension. Feeling depressed of the stat of affairs the complainant had to ask for the refund of the money she had paid to both the OPs as the complainant stood penalized on two fronts she had been paying Rent/HRA for the accommodation she has been occupying and simultaneously interest for the amount she borrowed for paying being the price for the plot allotted to her as mentioned in the preceding paras of the complaint. The OPs have also violated the conditions specifically mentioned in the allotment letter dated 06.06.2016, but despite having paid huge lump-sum amount had to face heinous mental tension and unnecessarily financial burden which the complainant assesses to the tune of Rs.10,00,000/- which OPs are liable to pay to the complainant 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 pay Rs.38,25,150/- being paid by the complainant to the OPs for the assignment as agreed by the OPs No.1 & 2 with interest @ 18% per annum from 05.07.2016 the date of amount was paid to the OPs. Further, OPs be directed to pay Rs.10,00,000/- as compensation for causing mental tension and harassment to the complainant and Rs.50,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable against the 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 except the limitation and now the present complaint is time barred. It is further averred that the present complaint is an abuse of the process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. It is further averred that the terms and conditions of the allotment letter are binding upon the allottee. 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 entered into sale agreement with the OP. As per the terms and conditions of the allotment, the allottee could take possession after entering into sale agreement. 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 she was entitled to seek possession after entering into sale agreement within 30 days but she miserable 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 throughout. But she failed to take demarcation/possession. As per the terms and conditions of the agreement, the allottee was to raise construction on the aforesaid plot within 36 months. Whereas all these almost 5 years she had never given any letter or objection regarding possession. It is further averred that the present complaint is false and frivolous even to the knowledge of the complainant and is not maintainable against the OP. It is further averred that the present complaint is an abuse of the process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the OP. As per the terms and conditions of the allotment letter, there is no default in the performance of JIT. The Improvement Trust has never defaulted in performing any of its obligations under the allotment terms and conditions/rules etc. It is further averred that the complainant is barred by her own act, conduct, 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 misstatement and has not approached this Forum with clean hands and deserves no relief from this Forum. On merits, the factum with regard to allotment of the Plotand payment to the same by the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted 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 arguments from learned counsel for the respective parties and have also gone through the case file very minutely.

6.                It is admitted and proved fact that the plot No.311-D of the development scheme 94.97 acre known as Surya Enclave Extension was allotted to the complainant, vide allotment letter dated 06.06.2016, which has been proved as Ex.C-4/OP-1. The complainant has proved on record the receipts showing the payment of the plot made by the complainant to the OP. The receipt has been proved as Ex.C-5 and copy of the agreement to sell is Ex.C-6. The contention of the complainant is that despite having complied with all the requirements and full payment made by the complainant, the construction work was not carried out by the OP nor the possession was offered even after lapse of long period despite sending representations to the OP as Ex.C-7 and Ex.C-8. The complainant also sent legal notice dated 24.05.2021, but to no effect. Copy of the legal notice and receipts is Ex.C-9 to Ex.C-11.The newspaper cuttings, which highlighted the conditions and progress in the area have been proved on record as Ex.C14 to Ex.C16.

7.                The contention of the OP is that the present complaint is barred by limitation. The allotment was made on 06.06.2016 and the possession could be taken after entering into sale agreement within 30 days from allotment and executed agreement much later, but this contention is not tenable as if the complainant had failed to enter into sale agreement with the OP, then it is the duty of the OP to cancel the allotment, but the OP has not cancelled the allotment. The news publications have been proved on record by the complainant, which are from different newspapers and which have been proved as Ex.C14 to 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. The complainant made representations Ex.C-7 and Ex.C-8 requesting for possession of the said plot to the OP, but the OP has not produced on record any photograph or document from where it can be ascertained that the basic amenities like portable roads, water/sewerage and street lights etc. have been completed and the project was ready for taking possession and residing there. It has been held by the Hon’ble State Commission, in “ManojBagroyVs. M/s N. H. Matcon” in consumer complaint no.429 of 2019, decided on 07.01.2020that 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.

8.                The Counsel for the OP has further contended that the allottee clearly defaulted and she was entitled to seek possession after entering into sale agreement within 30 days but she miserably failed to either approach or write even a single letter to the OP to take the possession, but this contention is not tenable as if the complainant did not execute sale agreement or did not take possession, then the JIT was within its rights to cancel the allotment and forfeit all deposited amount within 30 days from the date of allotment. The OP could have sent notice to the complainant to execute agreement to sell and to take the possession, but the OP did not send any notice nor the allotment was ever cancelled. Therefore, this argument is not tenable. 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. It has been held by the Hon’ble Supreme Court, in a case titled as ‘Samruddhi Co-Operative Vs. Mumbai Mahalaxmi Construction’ that ‘failure to obtain occupancy certificate is a continuing wrong and the complaint is not barred by limitation rather it is deficiency in service and complaint is maintainable’. It has been held by the Hon’ble State Commission, (U.T.) Chandigarh, in a case titled as ‘Sandeep Baweja Vs. Chandigarh Overseas Pvt. Ltd.’ that ‘Delay in possession-refund claimed-Held-it is settled law that when there is a material violation on the part of the builder, in not handing over possession by the stipulated date, the purchaser is not bound to accept the offer even if the same is made at a belated stage’. Apart from this, in other connected cases, the news publication has been proved on record by the allottees, which are from different newspapers and these are from 2020 onwards. 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.

9.                In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to refund the amount of the plot paid/deposited by the complainant with interest @ 9% per annum from the date of making deposits till its realization. Further, OPs are 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.10,000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order and in case, the same is not done within 45 days, the OP shall be liable to pay additional interest @ 3% per annum to the complainant, on the amount of the Plot deposited by the complainant. This complaint could not be decided within stipulated time frame due to rush of work.

10.              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     

11.12.2024         Member                          Member              President