GITA JOLLY vs DELHI DEVELOPMENT AUTHORITY

THIS complaint has been filed by the complainant Gita Jolly against the O.P. DDA alleging deficiency in rendering services.

FACTS of the case are that the complainant applied for a flat in response to VIIIth SFS Scheme floated by the O.P. in the year 1995 for allotment of flats in Sector 12, Pocket I, Dwarka, Delhi. It is admitted position that the flats were almost complete and appear to have been left over from earlier schemes, which could not be allotted. The cost of the flat was Rs. 6,70,000/- payment schedule was Rs. 50,000/- along with application, Rs. 5,53,600/- within one month of the issue or date of allotment letter and balance 10% together with increased cost, if any, within one month of the letter of possession. In the present case letter of allotment was issued on 20.11.1995-30.11.1995 allegedly received by the complainant in the first week of January, 1996 - since the money mentioned in the letter was not deposited within the time limit precribed, the allotment was cancelled on 4.2.1996 by O.P. The money (Rs. 5,53,100) mentioned in the letter of allotment referred to earlier, was deposited by the complainant on 4.9.1996. Complainant made several requests, as per record, to let her know the amount of interest payable on account of late deposit of the amount-but no reply was forthcoming. It is only on 26.11.1997 that the complainant was informed about the regularisation of delay in making payment subject to payment of interest and restoration charges as per terms and conditions. It was also stated in the said letter that flat would be allotted through a mini draw to be held in near future. It was only on 22.12.1997 that the complainant was informed to deposit Rs. 71,958/- on account of ''late payment-interest'' and restoration charges. It was on 26.6.1998 that complainant was allotted flat No. 397 (G.F.), Sector 12 Part I, Dwarka on a basis of draw held on 17.2.1998. This allotment letter mentioned the price of the flat at Rs. 10,85,276/- and after adjusting for the amounts already paid by the complainant, the complainant was asked to pay a further amount of Rs. 4,92,285/- within one month i.e., by 25.7.1998 and different amounts, if the payments are made on later dates, but within four months. It also carried a clause of automatic cancellation after 25.10.1998. This amount was also paid; however no date is available on record as to on which date the amount was paid. Thus the complainant, in all, paid Rs. 11,77,151/- to the opposite party. It is in these circumstances that the complainant filed the present complaint before us on 8.4.1999 seeking following reliefs: (1) Refund of Rs. 11,77,151/- paid by the complainant to the opposite party with interest @ 18% p.a. with quarterly rest i.e., 4,41,207/- (this interest is calculated up to 31.3.1999) w.e.f. the date on which payments were made to opposite party. (2) Cost of paying the amounts at .025% (bank charges) Rs. 2,943/-. (3) Damages on account of mental torture and tension and insecurity of residence Rs. 5,00,000/-. (4) Cost of the present proceedings.

The complainant wrote several letters protesting on a huge jump in the cost of a completed flat from Rs. 6,70,000/- in 1995 to Rs. 10,85,276/- in 1998, which elicited a response from the O.P. by way of a letter dated 11.10.1999 indicating the price of the allotted flat at Rs. 9,60,818/- and accordingly modifying the remainder outstanding amount against what was communciated earlier vide letter 26.6.1998. Based on the differences of cost and the money paid, it was a clear case of over-payment of Rs. 1,52,487/- (Rs. 11,77,151/- paid (-) Rs. 9,60,818/- being the revised cost of the flat. These figures are as per application dated 23.3.2001 made before us by the complainant and do not tally) for which refund was sought by the complainant along with interest @ 24% p.a. Admitted position is that O.P. refunded Rs. 71,958/- on 31.7.2001.

Written version was filed by the O.P. stating that the complainant is not a consumer. There has been delay in payment of instalments by the complainant on account of which allotment had to be cancelled. All the requisite infrastructure like electricity and water was available in site. Consumer Forums cannot go into the question of pricing of flats. There is no provision in the Brochure to refund the money with any interest. Complaint is frivolous and needs to be dismissed with costs. Affidavits were filed by way of evidence reinstating the respective points. Arguments were heard.

SINCE the parties admitted that in all Rs. 11,77,151/- (O.P. says this amount is Rs. 11,77,122/- was paid and received, of which Rs. 71,958/- has been refunded by the O.P. to the complainant, and since the prayer of the complainant and reiterated before us during the arguments is for refund of money, which O.P. is willing to refund, the only point remains to be determined by us is the rate of interest on the refunded amount and compensation, if any. It is the case of the complainant pleaded by Mr. Wadhwani that the sequences of events narrated chronologically clearly reveal deficiency on the part of O.P. It is his case that the cost given out for the flat was Rs. 6,70,000/-, the flats were already constructed, hence there was no room for escalation of cost of the flat, which in this case was done arbitrarily by the O.P. On inquiry no explanation was forthcoming from the O.P. On this point, we have seen the material on record and find that even in the complaint, in Para 4(c) the complainant himself has mentioned the following : "Balance amount of Rs. 67,000/- being 10% of the cost together with increase in the cost, if any, was payable within one month from the date of letter of possession". (Emphasis supplied) Thus, it is clear that the provision in the ''terms and conditions'' exist for increase in cost. As is by now a settled law on the subject, Consumer Forums cannot go into the question of pricing of flat/house/plots. Second point made is that for the first time allotment letter was made on 20.11.1995-30.11.1995 which as per written version of O.P. was picked up by the complainant''s father on 22.1.1996-earlier letter having come back undelivered. Two dates and one period are important to note. The above letter is to be deemed to have been received by the complainant on 22.1.1996 and last date of payment of huge amount of Rs. 5,53,100/- was 30.1.1996. In the written version stand taken by the O.P. is that since the complainant "did not make payment of the demanded amount within 120 days, hence the allocation stood cancelled automatically". In view of the stated position we are unable to appreciate this stand of O.P. Our poor and simple arithmetic by no mode of calculation makes the cancellation fall within 120 days whichever way it is calculated. 30.11.1995 could be taken to be date of issue of letter as per reference in the letter of cancellation dated 4.2.1996 and cancellation is made on 4.2.1996. It will make 66 days even if the count down is deemed to start from 30.11.1995; it will be 76 days if worked out from 20.11.1995. Pity is, that O.P. admits that father of the complainant collected the letter only on 22.1.1996. In any of the situations the cancellation was unjust, improper, irregular and contrary to the stand taken by the O.P. as per their written version. This is a clear case of deficiency of service on the part of O.P. After depositing the requisite money on 11.9.1997, the complainant repeatedly asked O.P. vide its letters dated 11.9.1996, 1.10.1996 and 16.12.1996 to let him know the interest payable on account of delayed deposit of money. No reply is given by O.P. It is only on 26.11.1997 after several meetings with the officers of the O.P. that delay in making the payment is regularised, yet no amount of interest is indicated. Complainant again wrote to O.P. on 18.12.1997 to let him know the amount payable by way of interest which is informed to the complainant on 22.12.1997, which amount is deposited by the complainant. If the cancellation is restored after taking the interest for the delayed period as per terms of the Brochure as well as restoration charges as per O.P.''s Rule, then how come, the flat is not restored! There is no material on record brought by the O.P. that the flat allotted to the complainant was not available for allotment. Restoration of cancellation, simply means restoring status quo ante. Any thing else shall mean exposing the complainant to double jeopardy-paying penalty by way of penal interest and restoration charges + not getting the flat. Having accepted this money and restoring the allotment compounded by the fact of very long time taken to intimate the amount required to be paid by way of interest for delayed payment, itself in our view amounts to deficiency in service by a public body. It is appalling to see the functioning of O.P. that while on 26.6.1998 on a fresh allotment of flat No. 397, price of this flat is communicated as Rs. 10,85,276/-, on 11.10.1999 a revised allotment for the same flat (397) is issued and price given out is Rs. 9,60,818/-. Having accepted Rs. 11,77,151/- no effort is seen on the part of O.P. to return the difference till 31.7.2001 when only Rs. 71,958/- are returned. This is the same amount charged for delayed payment of first four instalments of Rs. 5,53,100/- plus the restoration charges.

A further twist to the appalling nature of functioning of O.P. is given by an averment in the reply filed by O.P. In Para 3 of the reply filed by O.P. in response to an application made by the complainant under Order 12 Rule 6, O.P. has stated that "the demand letter dated 11.10.1999 (through which revised cost of the flat at Rs. 9,60,818/- was communicated) was issued due to inadvertence. The respondent is withdrawing the same (Emphasis supplied), whereas in the affidavit by way of evidence filed by the Director (Housing) DDA, this issue is dealt thus "the deponent issued revised demand letter on 11.10.1999 where the complainant has been asked to pay Rs. 3,63,969/- by 9.11.1999." The contradiction and incoherence is too obvious to be stated. Only on this ground both the written versions and the affidavit need to be thrown out. We will like to categorise this not only deficiency of service but worse. The outcome of all these discussions is while we see one-time delay in making payment of the instalments due, which is regularised on payment of interest as per terms of the brochure but there are series of deficiencies on the part of O.P. Had O.P. shown some sensitivity by communicating the interest and restoration charges required in response to several letters of complainant, the complainant would have been happily setting in her flat at pre-revised cost. But for the deficiency on the part of O.P., it would have been so. It is the case of the learned Counsel for O.P. Ms. Wadhwa that deposited amount can be ordered to be refunded but no interest can be granted on the amount as the terms of the brochure do not provide for it. We would like to quote what the Hon''ble Supreme Court had to say in Ghaziabad Development Authority v. Union of India, I (2000) CPJ 1 (SC)=IV (2000) SLT 654=(2000) 3 Comp. LJ 402 (S.C.) "It is true that the terms of the brochure issued by the Authority relevant to any of the cases under appeal and the correspondence between the parties do not make out an express or implied contract for payment of interest by the authority to the claimants. Any provision contained in the Consumer Protection Act, 1986."

But, however, relying upon its own judgment Sovintorg (India) Ltd. v. State Bank of India, New Delhi II (1999) CPJ 4 (SC)=VI (1999) SLT 545=(1999) 6 SCC 406, wherein it had held: "There was no contract between the parties regarding payment of interest on delayed deposit or on account of delay on the part of the opposite party to render the services. Interest cannot be claimed under Section 34 of the Civil Procedure Code as its provisions have not been specifically made applicable to the proceedings under the Act. We, however, find that the general provision of Section 34 being based upon justice, enquity and good conscience would authorise the Redressal Forums and Commissions to also grant interest appropriately under the circumstances of each case. Interest may also be awarded in lieu of compensation or damages in appropriate cases. The interest can also be awarded on equitable grounds."

The Hon''ble Supreme Court had permitted grant of interest on equitable grounds. In the light of this the objection of non-grant of interest, where no provision exists, cannot be sustained.

THE complainant has prayed for interest, damages on account of mental torture and costs. As per decision of the Hon''ble Supreme Court (supra) no damages can be allowed for mental torture. In HUDA & Ors. v. Darsh Kumar & Ors. we have held grant of interest @ 18% to be just and equitable which covers the rate of interest, cost escalation and compensation.

PRESENT case is a fit case where grant of interest @ 18% on the deposited amount shall meet the ends of justice. Accordingly, O.P. is directed to make payment of Rs. 11,77,122/- along with interest @ 18% from their respective dates of deposits till 31.7.2001 and from 1.8.2001 onward interest shall be payable on Rs. 11,05,164/- (Rs. 11,77,122 - Rs. 71,958/- already refunded on 31.7.2001 ) till the date of payment. The O.P. shall also pay cost of litigation which we fix at Rs. 5,000/-. All these payments shall be made within eight weeks of the order. Complaint disposed of.