MEERUT DEVELOPMENT AUTHORITY vs ALKA GAUR

THIS is an appeal against order dated 20.11.1989 in Complaint Case No. 631/97 passed by District Forum, Meerut.

THE facts of the case, in brief, are as under : That the complainant Smt. Alka Gaur''s husband Sri Shashi Kumra Gaur had applied for a MIG Plot in Shatabdi Nagar, Scheme of Meerut Development Authority. An amount of Rs. 8,000/- was deposited by him on 16.9.1989 as registration money. Sri Shashi Kumar Gaur was allotted a plot in Shatabdi Nagar Scheme-Phase I, Sector 5 and the plot number was 368. When the allottee Sri S.K. Gaur went to the site he found that plot had not even been ear-marked and no development was done Sri S.K. Gaur had also deposited allotment amount of Rs. 20,000/-. THE allottee requested the Development Authority for possession of the plot. Since no development was done, he was not given possession of the plot mentioned above. He gave a notice to the Development Authority but the Development Authority did not give any reply. THE complainant''s husband. Sri S.K. Gaur who was the allottee filed the complaint in the District Forum, Meerut but during the course of hearing of complaint, her husband got the case dismissed in default. THEreafter, the complainant Smt. Alka Gaur w/o late Shashi Kumar Gaur filed her certificate of legal heirship and completed all other formalities but she was not given possession of the plot in question. She requested for refund of deposited money which was not acceded to by the Development Authority. She, therefore, filed application in the District Forum, Meerut for recovery of amount deposited by her husband alongwith interest @ 24/.. The opposite party-Development Authority Meerut pleaded before the concerned Forum that the property in question was to be delivered to the allottee in the year 1992 but because of certain circumstances, development could not be completed and possession of the plot could not be delivered. The opposite party also stated that the complainant''s husband did not pay the instalments as per schedule of payment fixed by Development Authority and, therefore, the complainant is only entitled to be refunded of the money as per rules of Meerut Development Authority which lays down that 15% deductions on the deposited amount is to be made.

The District Consumer Forum, Meerut, after hearing the case, ordered that the complainant be given back the deposited amount of her husband alongwith interest @ 15% per annum alongwith Rs. 500/- towards the cost of complaint.

THE Meerut Development Authority has come up in an appeal against this order of District Forum, Meerut. In the memo of appeal it has been admitted that an amount of Rs. 28,000/- as deposited by Sri S.K. Gaur, husband of respondent as registration amount of plot. On 5.11.1990, an instalment letter was sent to the respondent''s husband and he was asked to deposit the balance of the cost of plot in eight instalments of six month''s each but the instalments were not paid to the Development Authority. It was also stated that the husband of respondent had filed a Complaint No. 1078/93 in the District Forum, Meerut which was dismissed in default for the same cause of action. Claiming the same relief a complaint was again filed before the same Forum who passed the order against which this appeal has arisen.

WE have gone through the evidence on record and also heard the arguments of learned Counsel for appellants Mr. V.S. Bisaria and learned Counsel for respondent Mr. T.H. Naqvi. The learned Counsel for appellant argued that the complaint case filed by the respondent is barred by res-judicata as for the same relief and for the same cause of action, her husband had filed a complaint before District Forum, Meerut which was dismissed in default. WE propose to dispose off this point first. It is admitted that Sri S.K. Gaur had filed a complaint before District Forum, Meerut and the same was dismissed in default. The respondent Smt. Alka Gaur also made a mention of this fact in her complaint before District Forum, ''Annexure 4'' which is a copy of the complaint makes a mention of the fact that her husband had filed a complaint before District Forum but complaint was dismissed in default. The point of res-judicata was not raised before the District Forum, Meerut by the opposite party-appellant in this case at any stage. The learned Counsel for the respondent also stressed that this objection should have been raised at the initial stage before District Forum, Meerut. From the evidence on record, we find that this point was never raised before District Forum. Moreover, the cause of action in this case arose only after the death of Shashi Kumar Gaur when the respondent was repeatedly assured of the refund of the deposited amount alongwith interest after completing the formalities of succession. In the complaint itself, she has mentioned that she got succession certificate on the death of her husband and filed it before Development Authority to seek refund of the amount deposited alongwith interest which was not decided by the Development Authority and, therefore, she preferred a complaint before the District Forum.

THE learned Counsel for appellant has drawn our attention to the ruling of National Commission, III (1996) CPJ 18 (NC) onwards, case Aroop Mukherji v. Switzer Instrument Limited

WE have perused this ruling and found that the position, in this case, is not exactly the same as in the case referred. Here, the respondent''s husband had filed the complaint which was dismissed in default; as a result of her husband''s death she became the legal heir and submitted succession certificate before the Development Authority-appellant. The Development Authority refused the payment of the amount asked for which attempts time and again were made to pay the same. That did not mean that a fresh cause of action does not arise in fact the fresh cause of action arises and she made effort to obtain the payment from the Authority and after the payment was denied to her, she had a right to approach the District Forum. WE, therefore, hold that the complaint is not barred by res-judicata. Now coming to the merits of the case, we find that it is an admitted fact that likely year of the delivery of the possession was 1992 as per the affidavit filed by the Perokar of the Meerut Development Authority. It has also been admitted in para ''7'' that the area in which the plot was allotted to the respondent''s husband was 60% developed. Also a perusal of order dated 20.11.1998 of the District Forum, Meerut shows that opposite party had admitted before that Forum that the delivery of possession was to be made in 1996 but because of unavoidable circumstances, development could not be completed and the possession could not be delivered. But the appellant''s plea is that as per letter of allotment the allottee was required to pay instalments of the remaining amount towards the cost of plot applicable from 15.11.1990. cannot be taken to be valid as even in 1992, the development was incomplete. Therefore, it is quite natural that any allottee would not like to deposit more amount unless he is satisfied that the property which he is going to take possession of is not going to be handed over to him in time. We, therefore, do not find any fault on the part of respondent or on the part of her husband who was the original allottee.

It has also been argued by the learned Counsel for appellant that interest imposed should be from the end of the year in which the possession was expected to be given. He has cited the ruling of the National Commission in Case No. 82/95, George Thomas & Ors. v. Ghaziabad Development Authority & Ors.

WE have gone through the order of the National Commission but the facts in this case are different. In the proposed scheme development was not even completed in 1992 and allotment of the plot was made way back in he year 1990. The order of National Commission was in regard to the scheme of the Housing Board where the scheme was altogether abandoned and the allottee was asked to opt for a fresh option for allotment in some other scheme. This is not so in this case.

IN view of the above discussion, we find that there is no reason to interfere in the judgment of District Forum and the judgment is upheld. ORDER The appeal is dismissed and the order of District Forum in Complaint Case No. 631 /97 ordered dated 20.11.1989 is confirmed. Appeal dismissed.