BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.597 of 2019

      Date of Instt. 19.12.2019

      Date of Decision: 30.10.2024

Rajesh Jaswal, Age 47 years, S/o Hazari Lal Jaswal, 509, Guru Gobind Singh Avenue, Jalandhar.

..........Complainant

Versus

Jalandhar Improvement Trust, Jalandhar. Through its Chairman/Administrator/Executive Officer.

….….. Opposite Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)                                          Sh. Jaswant Singh Dhillon       (Member)   

Present:       Complainant in Person.

                   Sh. Brijesh Bakshi, Adv. Counsel for OP.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that  LIG flat No.39-A, Ground Floor at Bibi Bhani Complex, Guru Amardass Nagar, Jalandhar was allotted to the compo through lucky draw on 16.08.2009 vide letter no.JIT/7913 dated 28.1.2010 by OP for Rs.6,01,000/- as per terms and conditions mentioned in the allotment letter under residential flats to be constructed near Guru Amar Dass Nagar, Jalandhar under 51.5 Acre Scheme which was named as Bibi Bhani Complex. The complainant paid all the installments and the total comes Rs.6,34,172/-. After receiving the payment of all the installments towards the sale price of flat allotted by the OP, the complainant approached the concerned official of OP for completion of the paper formalities as described in the terms and conditions of the allotment letter and complainant required to handover the possession of the flat within scheduled time. But on visiting at the site, the complainant found that sub-standard material was used in construction work, the work of piped LPG, work of water supply and sewerage connection were pending. In the absence of the aforesaid basic amenities and development facilities in the flats, the condition of the flats are not worth living yet the allottees are forced to take possession of their respective flats. The complainant deposited with OP Rs.6,34,172/- on which interest accrued Rs.9,84,130/- from the date of deposit upto 31.12.2019. The complainant is suffering great financial loss as his hard earned money lying blocked with OP and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to return/refund Rs.6,34,172/- with interest accrued Rs.9,184,130/- @ 12 % per annum. Further, OPs be directed to pay a compensation of Rs.2,50,000/- for causing mental tension and harassment to the complainant and Rs.15,000/- as litigation expenses.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the respondent, in the present form under the law. It is further averred that the present complaint is barred by limitation. It is further averred that the complainant never demanded or asked the possession of the flat in question and failed to honour the terms and conditions of the sale agreement. However, the JIT issued letter to the complainant to take possession but complainant instead of taking possession has filed the present false and frivolous complaint after lapse of more than two years from the date of letter. It is further averred that the present complaint does not lie with the Forum. In view of the provisions of Real Estate Regulation and Legislature has Development Act 2016, whereby, framed a Special Statute the for adjudication of matters of real estate wherein the buyers of house/flat may approach the Real Estate Regulatory Authorities established under the Act ibid bar regarding their grievances, the present complaint is not maintainable and is against the letter and spirit of the Act promulgated by the State. The Act states that any person whose complaint in respect of the matters covered under Sections 12, 14, 18, 19 is pending before Consumer Disputes Redressal Forum, State Commission or National Commission established under Section-9 of Consumer Protection Act 1986 on or before the commencement of the Act, may with permission of such Forum, Commission as the case may be withdraw the complaint pending before it and file an application before the adjudicating officer. Thus keeping in view the letter and spirit of the Legislature in framing the special Act the complainant may be directed to withdraw the instant complaint with liberty to approach the Authority under the Act ibid. It is further averred that the present complaint is an abuse of process of law. No actionable claim has ever arisen to the complainant to file the present complaint against the respondent. The present compliant is a clever design of the complainant to gain and earn profits from the misery and losses of the OP/Jalandhar Improvement Trust. It may be seen that first of all the allottee/complainant herself defaulted and failed to enter into sale agreement with the OP and furthermore did not turn up to take possession of the Flat as per allotment conditions. Thereafter the OP issued letter to the complainant to take possession of the flat but the complainant did not turn up to take possession rather filed the present false and frivolous complaint by concealment of facts to seek refund of the sale money. On merits, the factum with regard to allotment of the flat to the complainant and the facts regarding payment to the above said flat to the OP is also 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 complainant and learned counsel for the OP and have also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.  

6.                The complainant was admittedly allotted the Flat No.39-A, Ground Floor, vide allotment letter Ex.C-1. The complainant has proved on record that he has made the payment of Rs.6,34,172/- for the allotment vide receipts Ex.C-2 to Ex.C-13. The grievance of the complainant is that despite taking the installments and the entire amount, the OP failed to give the possession. The photographs, which highlighted the conditions and progress in the Flat has been proved on record as Ex.C/14 to Ex.C/26.

7.                The Ld. Counsel for the OP has contended that the present complaint is time barred. The OP issued letter to the complainant to take possession but complainant failed to do so, but this contention is not tenable as the photographs have been proved on record by the complainant, which highlighted the conditions and progress in the flats. The OPs have produced on record the photocopies of photographs to show that the construction is complete and the flats are ready for possession. The photographs Ex.OP-8 and Ex.OP-9 show the outer construction of the flats and the doors installed in the flats, but the photographs produced by the complainant Ex.C-14 to Ex.C-26 depict the clear picture of the existing condition of the flats. The condition of the flats clearly shows the inhabitable condition. The facilities and the development in the flats are incomplete.

8.                The further contention of the OP is that the complainant himself defaulted and failed to honour the terms and conditions of the agreement to sell. This fact has been mentioned in the para No.3 of the preliminary objections of written statement, but in para No.5 of the preliminary objections of the written statement, the OP has mentioned that the complainant has failed to enter into sale agreement with the OP and never took possession despite notice. Thereafter, he never demanded the possession. The stand taken by the OPs is contradictory on the one hand they are alleging that the sale agreement was not executed, but on the other breath the OP is alleging that the complainant has not complied with the terms and conditions of the sale agreement. 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. Further contention of the OP is that the complainant did not take the possession. Perusal of Ex.OP-1 shows that in the year 2018, notices were issued to the allottees to take the possession and Ex.OP-2 shows that some of the allottees were allotted the possession in the year 2016 and 2017, but it is not proved that all the allottees had taken the actual possession, as there was no development in the flats nor LPG facility nor other basic facilities like electricity connection or sewerage were provided nor the OP has proved that all the facilities have been provided and the flats were complete in all respects as per the condition of the allotment letter Ex.C-1. It has been held by the Hon’ble Supreme Court in a case titled as ‘Dharmendra Sharma Vs. Agra Development Authority’, decided on 06.09.2024 that ‘an offer made by a real estate developer to a home buyer to take possession of a flat without obtaining completion certificate and firefighting clearance certificate would not be considered to be valid.’ It has been held by the Hon’ble State Commission, in “Manoj Bagroy Vs. M/s N. H. Matcon” in consumer complaint no.429 of 2019, decided on 07.01.2020 that ‘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. 

9.                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 Flat in question as well as basic amenities in the entire complex have been completed in all respects.

10.              The OP has further contended that the present complaint does not lie with the Forum (now Commission) in view of the provisions of Real Estate Regulation and Development Act, 2016 whereby the legislature has framed the special statue for adjudication of matter of real estate wherein the buyers of the house/flat may approach the Real Estate Regulatory Authorities established under the Act, but this contention is not tenable as per the law laid down by the Apex Court in a case titled as ‘M/S Newtech Promoters and Developers Pvt. Ltd. Versus State of UP and Others etc.’ Improvement Trust case filed before RERA not maintainable as the OP’s project not registered with RERA. So, from all the angles, it is clear that there is deficiency in service and negligence on the part of the OP and as such, we are of the opinion that after waiting for a long time, the complainant became frustrated and demanded the return of the money along with interest, compensation and litigation expenses. It has been held by the Hon'ble State Commission, Punjab Chandigarh in First Appeal No.87 of 2020 titled as ‘Jalandhar Improvement Trust versus Mahabir Prasad’ decided on 10.08.2020, that ‘complainant cannot be made to wait for delivery of possession for an indefinite period and his demand for refund of the amount deposited by him was justified on account of failure of OP to complete the project/fiat within the stipulated time period Even no completion certificate or occupancy certificate has been produced on record by OP to complete the project/flat within the stipulated time period’. Thus, the complainant is entitled for the relief.

11.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OP is directed to return the amount deposited by the complainant to the OP alongwith interest @ 9% per annum from the date of making deposits till its realization. Further, OP is 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 Flat deposited by the complainant. This complaint could not be decided within stipulated time frame due to rush of work.

12.              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     

30.10.2024         Member                          Member           President