Ghaziabad Development Authority Ghaziabad (U.P.) Through Vice Chairman vs Harishankar Mahaur

THIS revision petition has been filed by the petitioner against the order dated 31.5.2012 passed by the U.P. State Consumer Disputes Redressal Commission, Lucknow (in short, ''the State Commission'') in Appeal No. 360/2010 - Ghaziabad Development Authority Vs. Harishankar Mahaur by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

BRIEF facts of the case are that complainant/respondent applied for HIG house in Pratap Vihar HIG Duplex Housing Scheme of the Opposite party/petitioner on 20.4.1998. In response thereof, the OP Ghaziabad Development Authority issued allotment letter (6Ga/2) in respect of House No. P -212. Estimated cost of the house was informed at Rs.8,16,000.00. As per the allotment letter, the estimated cost was to be paid in 10 instalments. After allotment of the aforesaid house in favour of the complainant, a spot inspection of the house was conducted in which no development work was found to be there. In this connection, when the complainant contacted the officers of the Authority, they did not give satisfactory reply to him. The complainant was directed to deposit the cost of the house Rs.8,55,742.00 with interest of Rs.4,15,281.00 i.e. a total sum of Rs.12,71,023.00. In this connection, the complainant made several requests to the OP to right off the aforesaid amount but the OP did not take any action. On the contrary, the OP issued order dated 16.10.2003 thereby cancelling the allotment of the aforesaid house no. P -212. The complainant wrote a letter dated 11.12.2005 to the OP thereby requesting them to consider his request and withdraw the cancellation order. Considering the request of the complainant, the aforesaid house was reinstated in the name of complainant. The complainant again wrote a letter to the OP requesting for calculation of the total amount due with interest against the aforesaid house. But the OP did not provide any details regarding outstanding amount and interest therein. According to the complainant, the aforesaid house is in a lackadaisical condition and the scheme of the OP is lying totally undeveloped. Under the circumstances, it is not correct to demand interest by the OP. Alleging deficiency on the part of OP, complainant filed complaint before District forum. OP/petitioner resisted complaint, admitted allotment, non -payment of instalments, cancellation of allotment and revival of allotment with the directions to the complainant to deposit amount for execution of deed and for taking possession of the house. Complainant failed to deposit amount, hence, prayed for dismissal of complaint. Learned District forum after hearing both the parties, allowed complaint and directed OP to calculate cost of house as per cost mentioned in the allotment letter plus interest as per Section 4 of the Interest Act, 1978 and in accordance with higher rate of interest paid by scheduled Bank on FDs after adjusting Rs.4,15,281/ - deposited by complainant and to execute Registry in favour of the allottee. Appeal filed by OP was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

HEARD leaned Counsel for the parties finally at admission stage and perused record. Learned Counsel for the petitioner submitted that learned District forum committed error in directing interest to be charged as per Interest Act and learned State Commission further committed error in dismissing appeal, though, demand raised by petitioner was as per allotment letter; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that Conveyance Deed has already been executed in favour of respondent and possession has already been given to him and order passed by learned State Commission is in accordance with law; hence, revision petition be dismissed.

PERUSAL of record reveals that Conveyance Deed has already been executed by petitioner in favour of the respondent and possession has already been given to him.

IT is admitted case of the parties that complainant was allotted HIG Duplex by OP vide allotment letter dated 15.7.1998 and balance amount was payable in 10 instalments with interest. Condition No. 1 of the allotment letter runs as under: "If the amounts payable to Ghaziabad Development Authority are not paid within the prescribed time then penal interest at the rate of 21% per annum shall be payable along with the payable amount. If the payment is not sad within three months after its due date along with penal interest, if any, the allotment shall be treated cancelled without notice".

Complainant failed to make payment inspite of notice by OP and vide letter dated 16.10.2003 his allotment was cancelled and he was directed to submit all original documents relating to the house for refund proceedings. It is also admitted case of the parties that as per the request of the complainant, OP vide letter dated 28.4.2004 reinstated allotment of house and directed complainant to deposit all dues within one month for execution of Registry and handover possession of the house. It was specifically mentioned that remaining rules and conditions shall remain unchanged. From the record it also reveals that complainant vide letter dated 20.5.2006 requested OP to apprise amount due along with interest and OP vide letter dated 14.6.2006 asked complainant to make available photocopies of deposits made by him for calculation of amount due. No document has been placed by the complainant on record that he submitted photocopies of deposit receipts to the OP for calculation of principal amount due and interest on that amount. Complainant filed complaint in the year 2007 and it appears that during pendency of proceedings before District Forum. OP vide letter dated 9.4.2009 asked complainant to deposit Rs.35,93,235/ - including interest and Rs.10,569/ - as free hold charges for execution of Conveyance Deed. Later on, it appears that OP vide letter dated 13.7.2009 asked complainant to deposit Rs.24,85,058/ - in reference to order dated 9.6.2009 passed by District Forum.

LEARNED Counsel for the petitioner submitted that as per terms and conditions of allotment letter, petitioner was entitled to charge penal interest @ 21% p.a. and learned District Forum committed error in reducing interest. On the other hand, learned Counsel for the respondent submitted that as petitioner himself delayed in giving intimation about due amount, learned District Forum rightly allowed complaint.

PERUSAL of record reveals that petitioner asked respondent by letter dated 14.6.2006 to submit photo copies of deposits made by him, but no intimation has been placed on record by respondent to show that he submitted photo copies of deposits made by him with the petitioner, but filed complaint before District Forum in 2007 and in such circumstances, it cannot be inferred that any delay was made by petitioner in intimating due amount to the complainant.

LEARNED Counsel for the respondent further submitted that petitioner himself reduced amount in letter dated 13.7.2009 from the amount shown in letter dated 9.4.2009. It is true that amount has been reduced from Rs.35,93,235/ - to Rs.24,85,058/ -, but this amount has been reduced in the light of order of District Forum dated 9.6.2009 which has not been placed on record by any of the parties. In such circumstances, this argument of Counsel for the respondent is devoid of force that petitioner himself reduced the amount later on and in such circumstances, respondent was not able to ascertain due amount and deposit it with the petitioner.

PERUSAL of revival letter also makes it clear that allotment cancellation was revived subject to same rules and conditions mentioned in the allotment letter and as per allotment letter respondent was bound to pay penal interest @ 21% p.a. and in such circumstances, learned District Forum committed error in reducing rate of interest and allowing complaint and learned State Commission further committed error in dismissing appeal. Petitioner is entitled to recover interest as per allotment letter dated 15.7.1998 and impugned order and order of District Forum are liable to be modified.

IN such circumstances, revision petition filed by the petitioner is to be allowed and impugned order is liable to set aside and order of District Forum is to be modified.

CONSEQUENT LY , revision petition filed by the petitioner is allowed and impugned order dated 31.5.2012 passed by learned State Commission in Appeal No. 360/2010 - Ghaziabad Development Authority Vs. Harishankar Mahaur is set aside and order of District Forum dated 28.1.2010 passed in Complaint No. 35/07 Harishankar Mahaur Vs. Ghaziabad Development Authority is modified and petitioner is allowed to recover due penal interest @ 21% p.a. as per allotment letter. Parties to bear their own costs.