Rita Dhingra vs Haryana Urban Development Authority Through its Chief Administrator and Haryana Urban Development Authority Through its Estate Officer

THIS revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 by the petitioner against the impugned order dated 07.05.2012, passed by the Haryana State Consumer Disputes Redressal Commission (for short ''the State Commission'') in FA No. 1839/2008, "Rita Dhingra versus HUDA & Anr.", vide which the order dated 26.08.2008, passed by the District Consumer Disputes Redressal Forum, Karnal in complaint no. 613/2005 was upheld, but the direction given in the order of the District Forum for the refund of the amount deposited by complainant was also set aside. The District Forum had dismissed the consumer complaint in question, as being time barred, but allowed refund of the amount deposited with the respondent/OP. Brief facts of the case are that the complainant was allotted plot no. 175 in sector 5, Urban Estate Karnal on 07.04.92 for Rs. 3,09,600/ -. The complainant deposited 25% of the total amount and the remaining amount was to be deposited in instalments. The complainant deposited the first instalment of Rs. 38,700/ - in the year 1993 and thereafter, they did not deposit any instalment taking the plea that the respondent/OP had not delivered the possession of the plot to them. The respondent issued a show -cause notice to them on 7.12.94, asking them to explain, why the delayed interest and penalty may not be imposed upon them. Thereafter, there was correspondence between the complainants and respondents, but the complainant did not deposit the amount demanded by the respondent. The complainant filed the consumer complaint in question in the year 2005, stating therein that the OP should be directed to hand over physical possession of the plot in question and should be asked to accept the principal amount of balance cost, enhancement compensation and some other charges, but should be directed to waive off interest and penalty on the amounts so demanded. The District Forum dismissed the complaint being time barred, but directed that the OP should refund the amount deposited by the complainant within a period of 30 days of the receipt of the order. This order was challenged in appeal before the State Commission. The State Commission vide impugned order upheld the order of the District Forum, but also stated that the direction to refund the amount is set aside. It is against this order that the present petition has been filed.

IT was contended by the authorised representative of the petitioner at the time of arguments that he had paid 25% of the price of the plot at the time of allotment and the balance money was to be paid in six instalments to the OP. However, the allottee had paid only one instalment and thereafter did not deposit any money. He has drawn our attention to notice dated 7.12.1994 issued under section 17(1) of the Haryana Urban Development Authority Act, 1977 by the respondent/OP, in which the petitioner has been asked to remit the amount of instalment along with interest for the delay in depositing the instalment and a penalty of Rs. 3,870/ -. Another show -cause notice was issued on 3.7.98, asking them to show cause why a penalty of Rs. 32,640/ - may not be imposed on them. The authorised representative of the petitioner stated that since the possession of the plot was not delivered to them by the OP, they had not deposited the amount, in question. He stated, however, that they were prepared to deposit the requisite amount for the plot including the enhanced compensation but the penalty, interest and non -construction fee etc. should be waived off. He further stated that they had tried to remit the amount to OP by means of demand draft, but this was returned by them. Learned counsel for the OP stated that the petitioner/complainant had failed to deposit the necessary amounts as per the terms and conditions of the allotment letter in time. Even the first instalment was not paid in time. OP had offered possession of the plot too in the year 1995, but the possession was never taken. Further, the amounts mentioned in the demands raised by the OP from time to time, were never deposited by the petitioner. The learned counsel further stated that the complaint in question was hopelessly time barred, as it had been filed after a period of 11 years from the date of cause of action and the complaint had been rightly dismissed by the District Forum and the State Commission. Learned counsel further stated that the Estate Officer, HUDA, Karnal had sent letter to the petitioner on 29.03.2005, giving them the last opportunity to deposit the overdue amount within a period of 7 days. In response to this letter, the petitioner sent a reply on 19.04.2005, stating that the HUDA was duty bound to resume the plot and refund the amount deposited by him after the issue of show cause notice dated 07.12.1994. However, since HUDA had not given him physical possession, they had no right to charge any interest etc. The learned counsel further stated that HUDA had not challenged the order of the District Forum because the said order was in their favour. He stated that the OP was prepared to refund the amount deposited by the petitioner.

WE have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

FROM the record of the case, the facts of the case are very clear that the plot in question was allotted to the petitioner in the year 1992, but after depositing the initial 25% amount and one more instalment, further money was never deposited by the petitioner with the OP. Despite issue of show -cause notices to the petitioner under the relevant provisions of the HUDA Act, 1997, the overdue amount was never deposited with the OP. In his letter dated 19.04.2005 sent by the petitioner in response to letter dated 29.03.2005 from the OP, the petitioner has clearly stated that after the issue of show cause notice 07.12.1994, HUDA was duty bound to resume the plot and refund the money deposited by them with HUDA. Further, it is very clear that the consumer complaint in question has been filed in the year 2005, meaning thereby that the same was not filed within the statutory time limit of two years from the cause of action as laid down under section 24(A) of the Consumer Protection Act, 1986. It has been rightly observed by the District Forum and State Commission that if the cause of action is taken to be the date of first show cause notice dated 07.12.1994, the complaint had been filed after a period of 11 years. There is no convincing explanation or justification shown for the delay in filing the appeal; hence the learned State Commission and District Forum were right in taking the view that the complaint is time barred and deserved to be dismissed on this ground alone.

IN so far as the refund of the amount deposited by the petitioner with the OP is concerned, the District Forum in their order ordered for the refund of the said amount within a period of 30 days of the receipt of the copy of the order, failing which the said amount shall carry interest @ 10% p.a. from the date of the order till payment. The State Commission while passing the impugned order, decided to set aside the direction for the refund of the amount.

IN normal course, in similar cases, when a plot is surrendered or cancelled for non -payment of outstanding dues, the amount deposited by an allottee is refunded after deduction of certain amount of money as laid down in the terms and conditions of the allotment. The District Forum have observed in their order that "Had the OP taken action against the complainant at the earliest within specified period as provided in the show -cause notices, the situation would have been different as after deducting the reasonable expenses, OP could have refunded the remaining amount to the complainant." However, while ordering relief, the learned District Forum stated that the amount deposited by the complainant with the OP should be refunded meaning thereby that the entire amount should be refunded. The OP did not file any appeal against this order rather at the time of hearing before us, the learned counsel for the OP stated that they are prepared to refund the amount in question as per the order of the District Forum. In the light of this situation, the order of the State Commission setting aside the direction for the refund of the amount is not justified. The complainant is held to be entitled for the refund of the amount deposited with the OP as admitted by the OP itself. In the light of this discussion, while upholding the order of the State Commission dismissing the complaint on the ground of being time barred, we feel it necessary to modify the findings of the State Commission that the amount deposited by the petitioner with the OP should be refunded to them as ordered by the District Forum. This revision petition is, therefore, partly allowed with the direction that amount deposited by the petitioner with the OP shall be refunded to her in accordance with the order passed by the District Forum. There shall be no order as to costs.