CUTTACK DEVELOPMENT AUTHORITY vs SAUBHAGYA CHANDRA BISWAL

THE opposite party No. 3 in C. D. Case No. 141 of 2006 has filed this appeal against the complainant/respondent No. 1 and opposite party Nos. 1 and 2/proforma respondent Nos. 2 and 3 to set aside the orders dated 30. 5. 2007 of the District Forum, Cuttack in the C. D. case directing the opposite parties to allot a plot of land in Sector-8, Bidanasi Project Area or anywhere with all facilities to the complainant and complainant is to pay the escalation cost, etc. and opposite parties further to pay compensation and cost of litigation Rs. 10,000 and 20,000 respectively to the complainant within 45 days from the date of order.

FACTS in brief is that on 26. 5. 2006, complainant filed the aforesaid C. D. case praying to direct opposite parties to deliver him possession of residential plot vide Registerd No. 34-B 276-38 in Markatnagar, Sector-8, Bidanasi Project Area or in the same category plot in the said sector and interest @18% per annum over his deposited amount of Rs. 1,69,080 from 14. 9. 2000 till realization of interest and compensation Rs. 15,00,000 and cost of litigation Rs. 50,000. Complainant had applied for allotment of ''b'' category plot at Sector 9, Bidanasi Project Area as per Brochure No. 1/91 and made initial deposit of Rs. 35,000. There was no allotment of plot this time in his favour. So, vide letter dated 20. 3. 1995 (Annexure-2) the Secretary of Cuttack Development Authority (hereinafter be referred to as the ''c. D. A. '') (appellant) advised complainant to take back the initial deposit or allow them to retain the initial deposit which is interest free, so that they would consider for allotment of a plot in his favour on priority basis in the next allotment. Complainant preferred to wait till the next allotment. Then vide letter No. 15518 dated 4. 5. 1995 (Annexure-3), appellant intimated him in respect to provisional allotment of ''b'' category plot in Sector 8, Bidanasi Project Area requesting to deposit the price of the plot Rs. 1,69,080 in 16 quarterly instalments, each instalment being Rs. 8,380. Complainant deposited dues on instalment till last part of August, 2000 Rs. 1,69,080 in view of letter (Annexure-3 ). But, vide letter No. 17742 dated 22. 10. 1999 (Annexure-4) the appellant intimated that out of the provisional cost of Rs. 1,69,080, he has already deposited Rs. 60,140 in view of letter (Annexure-3) and the escalated cost of ''b'' category plot having been fixed at Rs. 2,54,160, he requested him to deposit the differential amount viz. Rs. 1,74,020 (Rs. 2,54,160 - Rs. 60,140) as per the provision in paragraph 2. 2 of brochure 1/91 and interest of Rs. 48,034 on defaulted amount there being default of payment of instalment dues, in total Rs. 2,42,054. Vide said letter, intimation was given that additional amount would be charged over and above escalated cost of plot towards its situational advantage and for additional land which would be intimated before final allotment of plot. The further case of the complainant in brief is that though he has already deposited the provisional cost of the land, Rs. 1,69,080 in view of Annexure-3, yet without taking note of it, with ill intention to deprive him from the selected land, opposite party No. 3 illegally and arbitrarily vide letter dated 16. 4. 2002 (Annexure-6) cancelled the allotted plot wrongly stating therein that he has only deposited Rs. 35,000 towards initial deposit and Rs. 50,280 towards instalment in total Rs. 85,280. In view of this as well as opposite parties having not delivered him possession of the plot in spite of his repeated representations as per Annexure-7 series dated 24. 7. 2002 and 29. 8. 2002, he suffered from mental agony. He is a Class-I Industrialist and is the owner of the B. K. Marine Enterprises situated at Bisakshpatnam. He has sustained loss of business Rs. 2,00,000 from financial year 1995 till end of February, 2006. Therefore, he filed the C. D. case.

On the other hand, the case of the opposite parties is that complainant is a regular defaulter of payment of dues, for which on 5. 3. 1999 they had issued complainant show-cause notice to cancel provisional allotment of plot, but C. D. A. had not cancelled taking a liberal view. Again C. D. A. had issued similar notice to him on 24. 7. 2001 as complainant defaulted payment of dues. But complainant did not bother to reply to show cause, as a result of which C. D. A. vide aforesaid letter dated 16. 4. 2002 (Annexure-6) cancelled the allotment as per the brochure condition. According to him, the provisional cost of ''b'' category plot was Rs. 1,69,080 in the year 1991. Complainant could not be allotted with ''b'' category plot in Sector-9 at the first instance. C. D. A. , therefore, took steps for development of Sectors 8 and 11. C. D. A. escalated the cost of plot due to high rate and other reason and demanded Rs. 85,080 as escalation cost vide letter dated 22. 10. 1999 and situational advantage Rs. 7,625 vide letter dated 7. 1. 2000 as per brochure condition, for which the total cost of plot is Rs. 2,61,785. Besides this amount, complainant is required to pay interest Rs. 2,32,881 for not paying dues in total Rs. 4,94,166 in time. Opposite parties admit that complainant in the meantime deposited Rs. 1,69,080 towards the cost of plot. But, as deposit particulars were not available to them in their office and complainant failed to furnish deposit particulars in spite of repeated request, whereas only particular in respect to payment of Rs. 85,280 was available in their office, opposite parties could only mention about payment of Rs. 85,280 in the letter of cancellation of plot. They have not intentionally ignored deposit of Rs. 1,69,080 by the complainant. However, out of the escalated price of said plot, Rs. 2,61,785, complainant did not deposit the balance amount after deducting Rs. 1,69,080. He was also to pay interest for not depositing due amount in time. Therefore, even if the figure in respect to amount outstanding against the complainant is not properly shown Rs. 1,69,080 having not been taken into account, which was not intentional, yet cancellation of the plot allotted provisionally is justified, the complainant having not fulfilled the other requirement. Said plot has been allotted in the meantime in favour of another. It is stated in paragraph 7 of the appeal memo that at present ''b'' category plot in Sector 13 is available, whose cost is Rs. 8,52,000. Though the District Forum has directed to allot a plot in favour of the complainant, it has not stated as to at what price a plot be allotted in his favour. It is also stated in same paragraph that C. D. A. is an instrumental of the State. It allots plots to general public in no profit no loss basis. Therefore, if C. D. A. would allot a plot at present receiving Rs. 2,54,160 or at the cost which was provisionally fixed in the year 1999 and interest, due to default, it would be financial hardship to opposite parties. Thus filing this appeal, opposite party No. 3 has prayed to set-aside the impugned orders of the District Forum.

WE have heard the learned Counsel appearing from both sides and perused the xerox copies of documents filed by both sides. It is contended on behalf of the appellant that the complainant was a regular defaulter in payment of the provisional cost of the land on 16 quarterly instalments and defaulted payment of escalation cost and situational advantage in spite of letters dated 5. 3. 1999, 22. 10. 1999, 7. 1. 2000 and 24. 7. 2001 written to him. Of course, opposite parties have not taken into account Rs. 1,69,080 due to non-availability of payment particulars. But, had complainant contacted them after receipt of the aforesaid letters and even the cancellation of allotment of plot, letter dated 16. 4. 2002, the matter would have been different. Moreover, in spite of repeated request, complainant did not furnish payment particulars in respect to deposit by instalments. In these end of the view, the appellant and opposite party Nos. 1 and 2 have caused no deficiency in service. It was also contended on behalf of the appellant that the District Forum has committed wrong in admitting the C. D. case and passing the impugned orders as the C. D. case has been filed beyond the prescribed period of limitation.

NOW question arises as to whether the C. D. case was barred by limitation and secondly whether opposite parties in the C. D. case including the appellant are liable for causing deficiency in service to the complainant. In respect to aforesaid first point, complaint petition discloses that as illegally and arbitrarily opposite party No. 3/ appellant cancelled the allotted plot issuing letter dated 16. 4. 2002 to the complainant, cause of action arose to file the C. D. case. Undisputedly, C. D. case, at the beginning, was filed before the State Commission in the year 2006 (Annexure-1) State Commission had given liberty to the complainant to file the C. D. case before the concerned District Forum on the ground of pecuniary jurisdiction. The record of C. D. case No. 141 of 2006 discloses that this case was filed on 26. 5. 2006 and was admitted on 31. 5. 2006. There was no move by the complainant to condone delay in filing the C. D. case. In view of Section 24-A of the Consumer Protection Act, 1986, though the C. D. case would have been filed within two years from the time / date of cause of action viz. from 16. 4. 2002, yet the C. D. case has been filed beyond the two years period of limitation without applying for condonation of delay. Therefore, the C. D. Case No. 141 of 2006 being barred by limitation, the impugned orders of the District Forum be vitiated. Coming to next point of deficiency in service by the opposite party Nos. 1 to 3 alleged to have been committed to the complainant, we would like to quote the meaning of deficiency as per Section 2 (1) (g) of the Consumer Protection Act, 1986, in short, the C. P. Act as follows : "section 2 (1) (g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. " it was contended on behalf of the respondent No. 1 (complainant) that the opposite parties are in fault and have shown imperfection and shortcoming in providing service to the complainant in allotment of the plot in spite of receipt of the price of the plot Rs. 1,69,080 and initial deposit. According to the opposite parties, as complainant failed to deposit escalated price of plot Rs. 2,61,785, situational advantage and interest Rs. 2,32,881 for not paying dues in time, they have cancelled the allotment of plot. They do not deny to have received the provisional cost of Rs. 1,69,080 but explains that as payment particulars in respect to Rs. 1,69,080 were not available to them, they could not take the same into consideration while issuing letter of demand dated 22. 10. 1999 (Annexure-4) and letter of cancellation of allotment of plot dated 16. 4. 2002 (Annexure-6 ). Complainant has produced xerox copies of these letters which means, he was aware about the reason of show-cause as per Annexure-4 and reason for cancellation of allotment as per Annexure-6. But complainant did not explain as to why after receipt of these two letters he remained silent. Had he approached opposite parties and convinced them in respect to deposit of provisional cost by him, we are sure that opposite parties would not have cancelled the allotment of plot provided that complainant agrees to deposits the escalated price and situational charges as per the brochure condition. The second letter dated 24. 7. 2000 and first letter dated 29. 8. 2002 of Annexure-7 Series filed by the complainant shows that complainant vide letter dated 24. 7. 2000 while intimating opposite party No. 3/appellant in respect to deposit of second instalment, has requested to acknowledge the balance amount which he would deposit within a short period. That means till this letter was written though deposit period of dues in sixteen instalments had expired since long yet complainant has not deposited the provisional cost of land in view of letter dated 4. 8. 1995. In view of finding dated 20. 7. 2006 by this Commission in C. D. Appeal No. 756 of 2002 (Pramod Ch. Mahanty v. The Secretary, B. D. A. , Bhubaneswar and Others), the allottee of plot is liable to pay interest in case he has delayed payment of instalment dues. Moreover, letter dated 29. 8. 2002 under Annexure-7 Series mentioned above, has been written by the complainant with reference to aforesaid letter dated 22. 10. 1999 (Annexure-4) to opposite party No. 3/appellant giving a chart of deposit of instalment dues on different dates till 24. 7. 2000. As per said letter, complainant has requested him to allot the earmarked plot in his favour in Markatnagar, Sector-8 of Bidanasi Project area thereby agreeing to pay the interest if any due to late remittance of instalment dues. Thus, as per this letter, the complainant admits negligence committed by him in not depositing the amount on instalment basis in time. This letter has also been written to opposite party No. 3 /appellant four months after cancellation of allotment of plot vide letter dated 16. 4. 2002 (Annexure-6 ). All these establish the laches on the part of the complainant who was not at all interested to acquire the plot allotted in his favour vide letter dated 4. 8. 1995 (Annexure-3) on payment of escalation price. In a decision dated 20. 9. 2007 of this Commission in C. D. Appeal No. 479 of 2002, it has been decided that non-allotment of plot in favour of the applicant where applicant did not pay the escalation price is justified and the applicant is entitled to get refund of the initial deposit, where it has only been deposited.

IN the present case, due to laches of the complainant in not enlightening opposite parties in respect to earlier deposit of instalment dues Rs. 1,69,080 and in not responding to the letters/notices as per Annexures-4 and 6 thereby agreeing to deposit escalation charges and situational charges, complainant has lost the chance of demanding the aforesaid plot. The said plot is not available now and the price of plot in the said locality is comparatively much high viz. Rs. 8,55,000. Without taking all these adverse situations, in allotment of plot into consideration, the District Forum has committed gross error directing the opposite parties to allot a plot in favour of the complainant and to pay compensation and cost of litigation.

IN view of our consideration made above, we find that the C. D. case was not maintainable since it was filed beyond the period of limitation. Moreover, the opposite parties are found not to have caused deficiency in service to the complainant, for which impugned orders of the District Forum is not sustainable. In the result, the appeal is allowed on contest against respondent No. 1 and proforma respondent Nos. 2 and 3 without cost. The impugned orders dated 30. 5. 2007 of the District Forum is hereby set aside. The C. D. Case No. 141 of 2006 stands dismissed. Records received from the District Forum may be sent back forthwith. Appeal allowed.