Arun Kumar Arora vs Ghaziabad Development Authority

THE applicant Shri Arun Kumar Arora has filed a compensation application under Section 12B of the MRTP Act, 1969 (the Act for brief), charging the respondent with adoption of and indulgence in unfair and restrictive trade practices. It has been complained by the applicant that in response to an advertisement, he applied for a flat under Scheme Code 615 in the Indira-Puram Housing Scheme, Distt. Ghaziabad, on hire purchase basis, and deposited Rs. 22,300/- as registration amount. It has been further stated by him that he was issued a reservation-cum-payment schedule/ allotment letter dated 6.1.1992 wherein the tentative cost of the LIG flat was indicated as Rs. 2,23,000/- and while acknowledging the registration amount, the respondent asked the applicant to pay Rs. 22,300/ - as reservation amount and further make payment in instalments in accordance with the payment schedule indicated in that letter. It also transpires that he was allotted Flat No. 38A, Gyan Khand-III as per the letter dated 13.10.1993 of respondent.

THE grievance of the applicant is that though he deposited four instalments of Rs. 11,150/- each before the due dates as per the payment schedule, in addition to the registration amount and reservation amount totalling Rs. 90,893/- upto May, 1995, the possession of the flat was not given to him. It has been further mentioned by the applicant that during his visit to the respondent''s office, he came to know that a letter dated 15.1.1998 had been sent to him by the respondent wherein it was stated that it was not possible for the respondent to give possession of the flat allotted earlier in Gyan Khand-III, Indira-Puram but instead a one-room flat in the lower category could be allotted to him. The case of the applicant is that since he had deposited four instalments besides the registration amount and the reservation amount which total upto approximately 40% of the cost of the flat, the possession of the flat allotted to him should have been handed over to him as per the allotment letter of 6.1.1992. It has been further stated by him that the alternative offer of a one- room flat to him in the lower category does not suit him as his requirement was for a two-room flat and he had applied for such a flat. He has accordingly, through the present application, sought compensation in terms of refund of the amount of Rs. 90,893/- deposited by him with interest @ 18% per annum, in addition to other compensation for mental agony and loss suffered by him as well as legal expenses incurred by him.

In reply, the respondent has denied the allegation of adoption of and indulgence in unfair and restrictive trade practices and stated therein that it had, vide its letter dated 15.1.1998, informed the applicant that it was not possible to give possession of the two-room flat, allotted to him, and instead an alternative offer of LIG flat of one- room was made. It has been further stated that the respondent through this letter asked the applicant to give his consent for allotment of one- room flat but the applicant failed to do so and the applicant could be given refund of the amount as per the terms and conditions spelt out in the brochure.

ON completion of pleadings, the following issues were framed : (1) Whether the respondent has been indulging in unfair trade practices as indicated in the compensation application? (2) Whether any loss or damage has been caused to the applicant as a consequence of the alleged unfair trade practices ? (3) Relief, if any.

Affidavits of evidence with supporting documents have been filed by both the parties. No oral evidence has been led by the parties. I have considered the pleadings and perused the affidavits of evidence as also the oral submissions made by the learned Advocates representing the parties.

IT is not denied that the applicant booked a two-room flat and was allotted Flat No. 38A, Gyan Khand-III, Indira-Puram by the respondent. IT is also not disputed that the applicant deposited a total amount of Rs. 90,893/- upto May, 1995 as per the payment schedule indicated in the reservation-cum-payment schedule/ allotment letter dated 6.1.1992. However, the dispute is about the letter dated 15.1.1998 issued by the respondent to the applicant informing him that the flat applied for by him cannot be given to him and instead, a one-room flat in a lower category could be allotted and for that he should give his consent for its allotment. While the contention of the respondent is that the letter was sent to the applicant, the grievance of the applicant is that it was not despatched by the respondent and it was thus not received by him. Moreover, it has been stated by him that it was not received by him as it was sent at his old address. IT has also been stated by the applicant that he had duly intimated his change of address to the respondent and the respondent should have sent the intimation with regard to the non-availability of the flat booked by him at his new address. As far as the refund of the amount is concerned, there is no dispute and the respondent has offered to give the refund @ 5% per annum. The only dispute is about the rate of interest on the amount of Rs. 90,893/- which was paid by the applicant to the respondent. From the facts highlighted above, it is apparent that the applicant did not cancel the allotment and in fact, had not only applied for a two-room flat and paid the necessary amount he was required to deposit but also was eager to get its possession. In fact, it transpires that it is the respondent who could not give possession of the two-room flat allotted to him in Gyan Khand-III and instead gave an offer of one-room flat which the applicant states he had not receive. At any rate, the applicant cannot be forced to accept one-room flat when his requirement is for two- room flat and for which he had already deposited about 40 % of its cost as per the payment schedule given by the respondent. Moreover, it is also not certain whether the applicant received the letter of 15.1.1998 sent at his old address. In the absence of any acknowledgement or any certificate of posting, the version of the applicant can''t be disbelieved or discarded. In view of these facts, the applicant cannot be treated like any other allottee whose allotment has been cancelled due to default of payment or who has refused to accept the allotment or possession for reasons which are not valid or which violate the terms and conditions in the brochure. Thus there is no escape from the conclusion that a case of unfair trade practices by and on behalf of the respondent has been established and accordingly, the finding on issue No. 1 is in the affirmative. The respondent has not been able to provide the flat in question, to the applicant despite having accepted the payment in accordance with the payment schedule and the applicant can, therefore, be said to have suffered loss and damage as a result of it. As the respondent failed to give the flat, in question, the applicant is entitled to refund of the full amount paid by him with interest @ 12% for the entire period it remained with the respondent. Interest @ 12% is considered reasonable and adequate and is being awarded in the light of the ruling of the Hon''ble Supreme Court in case Ghaziabad Development Authority v. Union of India &Anr., reported in II (2000) CPJ 1 (SC)=IV (2000) SLT 654=2000 CTJ 205 (Supreme Court) (MRTP). Based on the same ruling, no compensation for mental agony is being awarded. The compensation application is disposed of accordingly, with no order as to costs on the facts and in the circumstances of the case. C.A. disposed of.