CHANDIGARH HOUSING BOARD vs JASMER SINGH SAINI

THIS appeal has been directed by Chandigarh Housing Board-respondent No. 1 against order dated 28.5.2004 passed by the District Consumer Disputes Redressal Forum-I, U.T. Chandigarh, vide which the appellant has been directed to refund the earnest money to Sh. Jasmer Singh Saini, complainant (respondent No. 1 in the present appeal), without deducting 10% of the amount, and further, to refund Rs. 3630 along with interest @ 10% p.a. from the date of deduction till its payment. Respondent No. 1 (complainant) was held entitled to interest @ 10% p.a. on the amount of Rs. 32670 from the date of deposit till its refund i.e., 10.3.2000. Costs were also awarded to the tune of Rs. 550.

BRIEFLY stated the facts are that the Chandigarh Housing Board and respondent Nos. 2 and 3 had floated a scheme known as "The Chandigarh allotment of Sites of Cooperative Societies Scheme, 1979"; under the said scheme the people who were aspiring for residential units in the city were asked to form house building cooperative Societies duly registered under the Punjab Cooperative Societies Act, 1961. A few promoters floated a Cooperative house building society known as "The Chandigarh Sector-18 Cooperative House Building Society Ltd." The respondent No. 1 applied for his membership and accordingly was allotted membership No. 93 on 22.4.1982. He deposited the total amount of Rs. 36,300 on account of earnest money as demanded by the appellant and respondent Nos. 2 and 3, from time-to-time, and was duly transferred in the bank account of the appellant through the society. However, the appellant and respondent No. 2, unduly delayed the allotment of land to the society and went on demanding additional amount from the society. It was next averred that in the meantime, the family circumstances due to his job requirements changed, and, therefore, he requested respondent No. 3 to refund the amount deposited by him, amounting to Rs. 36,300 with interest vide his application dated 17.7.1997, on which the President of Society asked him to make an application to the appellant as well. Accordingly, he made another application dated 24.7.1997 to appellant and respondent No. 2, but he received letter dated 13.8.1997 from the appellant asking him to submit demand for refund of the amount through the society. Consequently, he submitted another application dated 18.9.1997 through the society requesting for the refund of the amount. After a protracted correspondence, he received a copy of the letter dated 10.3.2000 from the appellant through the society vide which an amount of Rs. 32,670 was refunded to him after deducting 10% of the total earnest money i.e., Rs. 3,630. He accepted the amount vide his letter dated 7.4.2000, under protest. He was not allowed any interest on the said amount, although, the appellant earned interest by depositing the amount of society in the bank.

With these allegations, respondent No. 1 prayed that Rs. 3630 deducted by the appellant be refunded to him along with interest @ 18% and he be allowed compensation of Rs. 5,000 on account of harassment and mental agony and further he should also be allowed interest @ 18% p.a. on his amount of Rs. 36300 till its refund.

RESPONDENT Nos. 2 and 3 did not appear despite service and were proceeded against ex parte. However, appellant appeared and filed reply. It admitted that a sum of Rs. 9,73,700 was deposited on 1.6.2002 with the Chandigarh Housing Board in respect of its 88 members of the society including a sum of Rs. 12,200, on behalf of the respondent No. 1. The society further deposited a sum of Rs. 6,38,800 towards balance of 15% on behalf of some members including respondent No. 1 on 31.3.1993, and further, a sum of Rs. 18,000 was shown to have been deposited on behalf of respondent No. 1 by the said society with the Chandigarh Housing Board. Since, the price of the land was enhanced, so, the society also deposited Rs. 2,90,840 in the account of the appellant on 13.8.1994 including Rs. 6,000 on behalf of respondent No. 1. In this way, it was admitted that respondent No. 1 deposited Rs. 36,300 on account of earnest money. However, it asserted that since, the society had done fabrication of the record, so, an inquiry was ordered by the Chandigarh Administration in August, 1994, and on this account the amount could not be refunded to respondent No. 1. Moreover, respondent No. 1 had not applied properly for the refund of money and he was requested vide letter dated 13.8.1997 to submit his request through the society, which was received, later on, through the society in the Board''s office on 6.3.1998 and another request was received in its office on 6.4.1999. Since, an inquiry was going on, a clarification was sought from the Finance Department, U.T. Chandigarh, as to whether request of some members was to be kept pending till finalization of the inquiry or the amount could be refunded to them, and on receipt of the clarification, the refund of Rs. 32,670 was given to respondent No. 1, after deducting a sum of Rs. 3,630, being 10% of the total earnest money. It further pleaded that under Clause 8 of the notified scheme no interest was payable on any amount which remained deposited with the appellant and, as such, it prayed that the complaint be dismissed. Parties led their evidence in the shape of affidavits.

AFTER hearing the Counsel for the parties, the District Forum-I, U.T., Chandigarh, vide order dated 28.5.2004 allowed relief to the complainant, as stated in the earlier part of the judgment. Aggrieved by the said order, Chandigarh Housing Board has filed the present appeal. We have heard the learned Counsel for appellant Mr. K.K. Gupta, respondent No. 1 in person and carefully gone through the file.

IT is an admitted fact that respondent No. 1 (complainant) had become member of the Chandigarh Sector-18 Cooperative House Building Society Ltd. (respondent No. 3) and he was allotted membership No. 93 on 22.4.1982. IT is also an admitted fact that respondent No. 1 had deposited Rs. 36,300, in all, on account of earnest money through the society as demanded by the appellant and respondent Nos. 2 and 3. There is no dispute about it that respondent No. 1 had applied for the refund of the amount to the appellant on 28.7.1997 and the appellant had asked the respondent No. 1 to send his request through the society. The society, then, forwarded the request of respondent No. 1 dated 11.2.1997 to the appellant for refund of earnest money on 2.3.1998 which was received in the appellant''s office on 6.3.1998. There is also no dispute about it that the appellant refunded Rs. 32,670 by deducting 10% of the earnest money i.e., Rs. 3,630 vide letter dated 10.3.2000.

COUNSEL for the appellant contended that the Chief Executive Officer of the Chandigarh Housing Board vide his order dated 9.2.2000 had allowed request of the respondent No. 1 for the refund of earnest money after deducting its 10%, and the cheque of the amount of Rs. 32,670 was prepared on 25.2.2000, which is clear from Annexure P-16 and was ultimately sent to the society vide forwarding letter dated 10.3.2000-Annexure P-17 and the society handed over the same to the respondent No. 1 vide Annexure P-16. According to the learned COUNSEL for the appellant, since refund of the amount was ordered on 9.2.2000 by the competent authority i.e., Chief Executive Officer of the Chandigarh Housing Board, so, instructions prevalent as on 9.2.2000 with regard to refund of earnest money were to be followed and not as prevalent on 10.3.2000. There is no dispute that fresh instructions for allotment of land to the cooperative house building societies and for refund of earnest money were issued vide letter dated 9.3.2000 vide Annexure, whose photocopy is R-2. It is clearly stated in Clause No. 7 of the said instructions that full refund of earnest money, would henceforth, be made to the societies/its members without forfeiting 10% of the 25% earnest money deposited. This means that prior to the issuance of the said instructions on 9.3.2000, the board was competent to forfeit 10% of the 25% earnest money deposited. Now, question is to be seen, whether the date 9.2.2000 is to be considered when the Chief Executive Officer of the Chandigarh Housing Board had ordered the refund of the amount by deducting 10% of earnest money or the date 25.2.2000 when the cheque was prepared, or the date 10.3.2000 is to be considered when the cheque was forwarded to the society and was received by respondent No. 1, later on. Since, admittedly, new instructions came into force on 9.2.2000 vide which no amount is to be deducted by the appellant while refunding earnest money, in our opinion, the date is to be considered when the society had received the cheque or at the most, when the appellant had forwarded the cheque vide letter 10.3.2000. Since, on 10.3.2000 instructions had come into force, so, the Board was not empowered to deduct 10% of the earnest money. Hence, the District Forum was right in refunding the amount of Rs. 3,630. Counsel for the appellant next contended that according to the old instructions, the amount was to be refunded without any interest. Again, in our opinion, the contention of the learned Counsel for appellant is untenable. According to instructions dated 9.2.2000-Annexure R-2, Sub-clause 2, simple interest @ 10% on the money already deposited by the societies, has to be paid by the appellant. So, the District Forum was right in allowing the interest @ 10% p.a. on the amount of Rs. 3,630 deducted by the appellant and also on the balance amount of Rs. 32,670 from the date of deposit till its refund on 10.3.2000. Consequently, we hold that there is no force in the appeal and the same is dismissed with costs, which are quantified at Rs. 550. Copies of the order be communicated to the parties, free of charge. Appeal dismissed.