DELHI DEVELOPMENT AUTHORITY vs Veena Tamta Bhatia

APPELLANT which was the opposite party before the State Commission has filed this Appeal against the judgment and order dated 26.9.2008 passed by the State Consumer Disputes Redressal Commission, Delhi (in short, ''the State Commission'') in Complaint Case No. C -219/2000 whereby the State Commission partly allowing the complaint has directed the Appellant to refund the amount of Rs. 1,69,663 to the Complainant along with compensation of Rs. 25,000. Averments made in complaint:

Complainant/Respondent applied for an MIG Flat with the Appellant under the "Ambedkar Awas Yojna, 1989 Special Housing Registration Scheme vide Application No. 0013904. Vide draw of lots dated 7.8.1996, she was allotted MIG flat in Kondli -Gharoli, No. 28 -D, Phase II, GR -IV, Pocket No. 3. Respondent was asked to give her option between Hire Purchase and Direct Purchase. Respondent opted for direct purchase and deposited Rs. 20,000 as confirmation on 6.12.1996 well before the last date, i.e. 7.12.1997. On 17.2.1997, the Assistant Director (MIG), NP, DDA realizing that the due date for payment was already over made a note that "One month extension of time has been granted". The letter dated 19.2.1997 extending the time for deposit of the amount was actually despatched on 4.3.1997 and received by the Respondent after the due date of 7.3.1997. On 17.4.1997, Appellant sent a show cause notice to the Respondent for cancellation of the flat. Respondent misconstruing the show cause notice as cancellation letter, requested the Appellant vide letters dated 19.8.1998 and 1.10.1998 to send a fresh payment schedule as the payment schedule was received by her after the due date. Appellant misinterpreting the said letters as a request for restoration of allotment, intimated the Respondent that there was a delay of more than one year in making the payment and in such cases the allotment stood automatically cancelled. However, in response to her representation dated 11.9.1998, the Vice Chairman agreed to acceptance of payment at old rate but with interest and restoration charges of Rs. 1,69,663. Respondent deposited the full cost of the flat and the same was restored. Since, there were some defects in the allotted flat, Respondent requested the Appellant to rectify the same but in vain. Respondent alleged that the Appellant could not have imposed such high rate of interest on unfinished flat having no basic civil amenities like water, electricity, sewer, etc. Complainant, being aggrieved, filed the complaint before the State Commission.

Stand taken in written statement

APPELLANT , on being served, put in appearance and filed its written statement resisting the complaint on the grounds that the Respondent was allowed change of mode of payment vide letter dated 19.2.1997 but she failed to make the payment even after extension of one month; that in response to show cause notice dated 17.4.1997, she requested for refund of the deposited amount of Rs. 20,000; that considering her request dated 19.5.1998 in public hearing, allotment of the flat at current price was restored; that the Respondent herself had requested for cancellation and refund of money and had never applied for extension of time and, therefore, there was no deficiency in service on their part. State Commission holding the Appellant deficient in rendering the service, allowed the complaint and directed the Appellant to refund the sum of Rs. 1,69,663 charged extra to the Respondent along with compensation of Rs. 25,000. State Commission in its order observed as under:

Aforesaid conspectus of facts shows that the entire problem arose due to the confirmation letter dated February 19, 1997 sent by the OP demanding Rs. 6,05,658 by which time the payment demanded in November 1996 was already over. All the due dates of instalments were already over. DDA letter Ex. P/4 was intimation about the approval of cash down basis and payment schedule wherein the last date of payment was shown as February 7, 1997 but the letter itself was sent on February 19, 1997. The complainant had deposited Rs. 20,000 towards the confirmation amount. Since the OP had not cancelled the allotment the question of restoration did not arise. Once the OP rejected the inclusion of her name in the next draw the offer was made by her under the mistaken bona fide belief that the flat had been cancelled.

The complainant was also dillydallying and not making the payment as demanded though she claims that she had no problem arranging finance and her grievance was that she was not given timely notice. She had also promised to make payment by June 30, 1997 and undertook that she would pay interest for the intervening period.

Thus, the whole grievance of the complainant revolves around the point that she had never received any demand notice for making payment and, therefore, she should not have been held defaulter and charged interest.

Admittedly, the original cost of the flat was Rs. 6,76,250 and due to the aforesaid circumstances she had to pay Rs. 1,69,663 more vide challan Nos. 342 and 942 dated December 6, 2001 though she made this payment under protest.

The OP -DDA cannot take advantage of its own acts of omission and commission that has forced the complainant to pay unnecessarily Rs. 1,69,663.

APPELLANT , being aggrieved, has filed the present appeal. We have heard the learned Counsel for the parties at some length.

During the pendency of the complaint before the State Commission, Respondent had paid the entire amount and the possession of the allotted flat was handed over to her on 8.3.2002. Since the possession of the flat had already been handed over, the State Commission had adjudicated upon only charging of extra sum of Rs. 1,69,663 by the Appellant from the Respondent.

RESPONDENT was allotted a flat which was cancelled by the Appellant for default in making the payment as per payment schedule. Respondent in response to the show cause notice issued by the Appellant for cancellation of the flat requested the Appellant to refund the deposited amount of Rs. 20,000. Prayer made by the Respondent in her letter dated 13.5.1997 reads as under: Since, the above allotment stands cancelled by the DDA, it is requested that the amount of Rs. 20,000 deposited as confirmation amount may kindly be refunded to me and I may be allotted some suitable accommodation in the future draw of lots or otherwise available elsewhere.

Later on, she requested for restoration of the cancelled flat which was declined by the Appellant. Subsequently, in pursuance to the representation dated 1.6.1998, Appellant agreed to restore the cancelled flat subject to payment of current costs of the flat in question. Revised demand was to be issued later on. Restoration order was conveyed by the Appellant to the Respondent vide its letter dated 2.7.1998 (Annexure A -6) which reads as under: Your case has been referred to the Housing Account Branch for working out the current cost of the flat in question. As soon as the cost of the said flat is made known, revised demand will be issued.

RESPONDENT accepted the offer and deposited the entire amount. Once the Respondent had accepted the offer and taken the possession after paying the current price, she cannot turn around and plead that the Appellant was not justified in charging Rs. 1,69,663 in excess. This was as per the terms and conditions mentioned in the revised demand -cum -allotment letter. State Commission has erred in accepting the complaint and directing the Appellant to refund the sum of Rs. 1,69,663 charged towards the difference between the original and current price of the flat.

FOR the reasons stated above, we accept the appeal and set aside the order passed by the State Commission. In compliance of our order dated 31.3.2009, a sum of Rs. 1,00,000 has been deposited by the Appellant with the State Commission. We direct the concerned State Commission to release the sum of Rs. 1,00,000 along with interest accrued thereon to the Appellant. Registry is also directed to refund the sum of Rs. 35,000 deposited by the Appellant as statutory deposit along with accrued interest.