Haryana Urban Development Authority Through its Estate Officer vs K.K.KHANNA

THIS appeal has been preferred by HUDA against order dated 28.10.1999 passed by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as the District Forum-I), in Complaint Case No. 857 of 1997. The contextual facts narrated briefly are as under :

THE respondent/complainant, Mr. K.K. Khanna, in response to an advertisement floated by Haryana Urban Development Authority, impleaded as opposite party No. 2 applied for a residential plot measuring 14 marlas (300 sq. mts.) in any of Sectors of 30, 31, 32 A part 30, 39, 40 and 41 at Gurgaon (Haryana). THE prescribed earnest money amounting to Rs. 13,500/- was deposited in the authorized Bank i.e. Punjab National Bank, Shimla Branch vide Receipt No. 8154 dated 10.8.1988 along with Application Form No. 01550 (Annexure-2). As per averments made, inter alia, by the respondent/complainant, the allotment made by opposite party No. 2, namely, HUDA was to be made as per Condition No. 10(C) of the terms and conditions given in the application form. THE complainant has alleged that he did not receive any intimation regarding the allotment of or otherwise of the plot and his registered letters dated 12.12.1989, 10.4.1990, 31.5.1990 and 14.8.1990 did not evoke any response from the appellants/opposite parties. THE respondent/complainant was informed by opposite party No. 3 vide letter dated 7.12.1990 that he has not been successful in the draw of lots held on 26.3.1989 and his earnest money deposited of Rs. 13,500/- was refunded through a cheque on 22.12.1990 (Annexure-1). THE main grievance of the complainant/respondent is that he was not allotted any Registration Number or Code etc. by the opposite parties, so his application was not included among the other applicants for the draw of lots held by the opposite parties Authorities. THE respondent/complainant has further stated that the refund of his earnest money without his consent by the appellants/opposite parties is against the terms and conditions of the application form sent by him. Also the complainant has contended that refund of the same after two years was illegal and the appellants/opposite parties were bound to allot the plot applied for by him. THE respondent/complainant has prayed to direct opposite parties to allot a plot in residential area of any of the Sectors of Gurgaon against his application dated 10.9.1988 and till date he has not encashed the cheque of earnest money returned by the HUDA Authorities and the same has been brought on record vide Cheque No. QNH 302743 dated 4.12.1990. In addition respondent/complainant has prayed that the opposite parties be directed to pay Rs. 10 lacs towards escalation in the cost of construction, Rs. 1 lac for mental agony suffered by him due to deficient services of the opposite parties and be paid interest @ 24% on the earnest money of Rs. 13,500/- from the date of deposit i.e. 10.8.1988 till date of decision. In the reply filed by the appellants/opposite party Nos. 2 and 3 under the preliminary objections the plea of lack of jurisdiction as envisaged under Section 50 of HUDA Act of 1977 has been taken. The complaint has also been stated to be bad on account of misjoinder and non-joinder of necessary parties. The plea of application of principle of res-judicata as given in Civil Procedure Code has also been raised because an earlier complaint by the said complainant on the same cause of action filed before the Himachal Pradesh State Commission was dismissed. The answering opposite parties have also stated that as no cause of action has accrued against them, the complaint deserves to be dismissed. Another plea of lack of jurisdiction of the consumer disputes redressal agencies at Chandigarh to try and entertain the complaint has also been taken as the property in dispute is situated in the State of Haryana.

On merits, the factum of submission of application form, the payment of earnest money at the authorized branch of the Bank stands admitted. However, the opposite parties have denied that the communications/letters sent by the respondent/complainant were not replied to. The information regarding the Registration Number of the applicants including to the respondent/complainant was sent by the answering opposite parties. Further the appellants/opposite parties have stated that the respondent''s Registration Number was 2040054 for 14 marlas plot. Further that the list of candidates successful in the draw of lots held on 26.3.1989 was published in the leading newspaper on 31.3.1989. The opposite parties have further denied having written any letter dated 7.12.1990 to the respondent/complainant informing him regarding his being unsuccessful in the draw of lots. The opposite parties have admitted having refunded the earnest money vide their letter dated 7.12.1990 to the appellant/complainant. The opposite parties have explained that the successful candidates were intimated through newspapers only vide their advertisement dated 31.3.1989. The opposite parties have vehemently denied that the respondent/complainant''s application was not considered etc. but after holding the draw, since unsuccessful in the same, the earnest money was refunded to him like all other candidates as per Rules of HUDA, on the subject. The opposite parties have denied any kind of deficiency on their part and have prayed that the complaint be dismissed with costs.

REJOINDER to the reply of the opposite party Nos. 2 and 3 has been filed by the complainant on 18.5.1994, wherein the respondent has stated, inter alia, that the provisions of the Consumer Protection Act as envisaged in Section 3 are in addition to and not in derogation of any other Act. Hence the jurisdiction under Consumer Protection Act is not legally barred in anyway under Section 50 of the HUDA Act, 1977. The respondent/complainant has also stated that the plea of res-judicata does not apply as the Hon''ble State Consumer Disputes Commission, Himachal Pradesh did not decide the complaint on merit and place any bar on the complaint to pursue the matter in any competent Forum in accordance with law. The plea of limitation has also been denied as the complaint in the District Forum-I was instituted within 30 days of the decision of the Himachal Pradesh, State Commission. Further the plea of territorial jurisdiction has been held up on the ground that the opposite party Nos. 1 and 2 have their offices in Chandigarh, hence consumer disputes redressal agencies at Chandigarh are very much competent to try the complaint. The respondent/complainant has reiterated the allegations that he was not allotted any Registration Number and none of his communications were replied to and the earnest money which has been refunded through a cheque has not been encashed by him. Hence for all practical purposes his money is still withheld in the accounts of the appellants/opposite parties Authorities. In evidence, the respondent/complainant has filed his affidavit, wherein he was deposed about not having received any Registration Number and any intimation regarding the fate of his any application for the plot. The opposite parties have brought on record the affidavit of Mr. M.C. Nagpa, Estate Officer, HUDA, Gurgaon, in which he deposed, inter alia, that all eligible candidates including complainant/respondent were informed of their respective Registration Number by the office of the deponent and that the Registration Number of the respondent/complainant as 2040054 in 14 marlas category.

THE District Forum-I in its order dated 28.10.1999 held the opposite parties/appellants guilty of deficiency in service. THE operative part of the order reads as under : Aggrieved against the above order of the District Forum-I, an appeal under Section 15 of the Consumer Protection Act, 1986 was filed by HUDA. The main grounds taken in appeal are that the District Forum-I had erred in holding the HUDA deficient in service as the complainant/respondent was informed of his Registration No. i.e. 2040054/14 marlas and the list of successful candidates was published in the newspaper dated 31.3.1989 (copy of the list published in the Tribune of the same date has been brought on record) and since the respondent was not among the successful candidates, his money was refunded to him vide Cheque No. QNH 302743 dated 4.12.1990. Further the appellant contended that since the amount of earnest money stands refunded to the respondent vide Cheque stated above, the District Forum-I is wrong in ordering 15% interest from the date of deposit till the date of actual payment on the same as the amount has already been paid to the respondent as far as HUDA is concerned. Regarding the grant of compensation of Rs. 8,000/- and litigation expenses of Rs. 2,000/-, the plea of the appellant is that compensation can be granted only in the event of actual loss which in the instant case has not been caused to the respondent/complainant. Hence the District Forum-I has erred in giving compensation and litigation expenses. The appellant has also taken other pleas like complainant having accepted the terms and conditions of the application form and accordingly is debarred from challenging and raising any consumer dispute at this stage. The other pleas like complaint being time barred by the limitation as well as under Section 50 of HUDA Act, 1977 and barred on account of res-judicata etc. have also been reiterated. After thorough perusal of the entire record of the case and hearing the learned Counsels of both the parties and having gone through the entire record and grounds of appeal in detail, this Commission is of the considered opinion that the District Forum-I was right in holding the opposite parties i.e. HUDA deficient in services rendered vis-a-vis the present complainant, Mr. K.K. Khanna. The appellants/opposite parties, inspite of having given ample opportunities to produce relevant record and show it to the satisfaction to the complainant that his name was included among the applicants for the draw held on 26.3.1989 have not been able to produce any such document. The same fact stands recorded by the District Forum-I in its order, as under : "...The learned Counsel for opposite party has also submitted that he had written number of letters to the Estate Officer, as well as to the Chief Administrator, HUDA, but he has not been given any reply by HUDA nor record has been produced showing that the name of the complainant was included in the list of those applicants with regard to which draw of lots were to be drawn. It is settled principle of law that if a material document is withheld, and not produced by a party, an adverse inference can be drawn against that party."

FURTHER, the District Forum-I has in its order recorded a statement wherein it has been clearly stated that the respondent/complainant visited the HUDA office at Gurgaon and despite the orders by District Forum-I to that effect the appellants/opposite parties Authorities did not show any document to corroborate their claim that he was allotted a Registration Number prior to the draw of lots held on 26.3.1989 and satisfy him that his name was actually included in the draw held on the relevant date. Consequent to the non-production of the above mentioned record and having not been able to show to the complainant and the District Forum-I about the inclusion of complainant/respondent''s name in the draw held, District Forum-I was legally justified in drawing an adverse inference and holding the appellant, HUDA guilty of deficiency in services rendered to the respondent/complainant. Since the cheque of earnest money has not been encashed by the complainant and the complainant has been deprived of the use of his money, the District Forum-I was justified in awarding interest @ 15% from the date of deposit till the date of actual payment. As far as the plea of appellant, HUDA regarding compensation of Rs. 8,000 having been granted by the District Forum-I without actual loss having been suffered by the respondent/complainant, this Com-mission is of the opinion that since the deficiency on their part has clearly been established and the appellant/opposite party HUDA could not prove that the complainant/respondent has not been deprived of his chances of inclusion of his name among the applicants for the plot the award of compensation of Rs. 8,000/- and litigation expenses of Rs. 2,000/- is justified. The District Forum-I has rightly appreciated the facts of the case and consequently, we find no infirmity in the impugned order of the District Forum-I with regard to facts or law on the basis of record produced by both the parties in support of their respective contentions.

IN view of the above discussion, the impugned order of the District Forum-I is upheld in toto. The appeal is dismissed with no order as to costs. The order be complied with within 3 months from the date of receipt of this order. Copy of the order be supplied to the parties free of charges. Appeal dismissed.