SECRETARY, GREATER NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY vs PREM CHAND JAIN

THIS appeal is directed against the order dated 18.2.2005 of Consumer Disputes Redressal Commission Uttar Pradesh, Lucknow allowing the complaint with direction to the petitioner to refund Rs. 8,500/- with interest @ 6% p.a. 27.3.1992 to the respondent.

FACTS giving rise to this appeal lie in a narrow compass. On 27.3.1992, the respondent/ complainant applied for a plot and along with the application sent a draft of Rs. 8,500/- drawn on Oriental Bank of Commerce, Kanpur to the appellant/ opposite party- authority. The authority allotted a plot to the respondent on 8.8.1992. Respondent alleged that he sent a letter on 1.9.1992 to the appellant surrenderring the plot and asking for refund of the said deposited amount. This letter was followed by the letters dated 5.10.1992, 26.10.1992, 10.1.1993 and 23.2.1999. However, the appellant did not refund the deposited money. In the complaint, the respondent sought refund of the said amount with interest @ 18% p.a. and Rs. 2.00 lakhs as compensation towards mental agony. Appellant contested the complaint by filing written version. Receipt of the application for allotment of a plot and Rs. 8,500/- from the respondent was not disputed. However, it was alleged that vide allotment letter dated 8.8.1992, the respondent was asked to deposit the allotment money of Rs. 17,000/- within 30 days from the date of receipt of that letter. But the respondent failed to deposit that amount. On the other hand, by the letter dated 5.10.1992 the respondent sought cancellation of the plot and asked for refund of Rs. 8,500/-. It was stated that under condition No. F-3 of the terms and conditions of the Scheme, the said amount was forfeited by the Authority. It was pleaded that the respondent neither sent the letters dated 1.9.1992 and 26.10.1992 nor were those received by the Authority. Pursuant to the order dated 30.4.2007, the appellant has filed the copy of affidavit filed by way of evidence by Smt. Anita Malhotra, Deputy Manager (Property) before the State Commission. Copy of the affidavit filed in rebuttal by the respondent is placed at pages 62 to 66. Before we proceed to examine the issue of receipt/ non-receipt of the respondent"s letter dated 1.9.1992 by the appellant- authority, we would like to refer to aforementioned clause F of the terms and conditions of allotment (at pages 18 to 23). This clause reads thus; " SURRENDER/ CANCELLATION F-1. In case of surrender before allotment, the entire registration money deposited shall be refunded without interest. F-2. In case of surrender after the allotment but within 30 days from the date of allotment, 25% of the Registration Money shall be forfeited and balance amount deposited shall be refunded without any interest. F-3. In case the allottee fails to deposit the due amount within the stipulated time, allotment will be liable for cancellation and in case of such cancellation, the money so deposited till the date of cancellation will be forfeited."

To be noted that the State Commission passed the order under appeal holding that the allotment of plot made to the respondent was not clear. Letter dated 8.8.1992 (copy at pages 24 & 25) would show that it is for allotment of a plot to the respondent. In para No. 4 of the complainant, the respondent himself has admitted that he was allotted a plot by the Authority on 8.8.1992. We are, therefore, unable to endorse the said finding returned by the State Commission. Respondent is entitled to the refund of aforesaid amount only when he is able to prove the receipt of the alleged letter dated 1.9.1992 by the appellant- authority. Letters other than this letter having been sent beyond 30 days after allotment of plot would not make the respondent entitle for refund of the money under said condition No. F of the Scheme. As noticed above, in written version the appellant has denied the receipt of the letter dated 1.9.1992. In para No. 3 of her affidavit, Smt. Anita Malhotra, Deputy Manager(Property) has averred that this letter was never received by the authority. In this para, it is further averred that the respondent by the letter dated 31.8.1992 had requested for time till 7.10.1992 to deposit the allotment money. In his said affidavit dated 11.4.1992 the respondent has averred that the letter dated 1.9.1992 was sent under certificate of posting to the authority. It is pertinent to mention that in this affidavit the respondent has not denied that by the letter dated 31.8.1992 he had sought time to make payment of the allotment money till 7.10.1992 as stated in para No. 3 of the affidavit by Smt. Anita Malhotra. Copies of two letters dated 1.9.1992 and 5.10.1992 are placed on the file. Letter dated 5.10.1992 would show that no reference is made therein of the letter dated 1.9.1992. In case the letter dated 1.9.1992 would have been sent, the respondent in all probabilities must not have omitted to make mention thereof in the subsequent letter dated 5.10.1992. Further, statement in regard to respondent having sought time to deposit the allotment money through the letter dated 31.8.1992 goes unchallenged. It was unlikely that only after one day of the dispatch of the letter dated 31.8.1992 the respondent may have sent the letter dated 1.9.1992 surrendering the plot. Presumption of service of a letter sent under certificate of posting is rebuttable. We are, thus, not inclined to believe the respondent that the letter dated 1.9.1992 was sent by him and received by the appellant authority. Appellant Authority had, therefore, rightly forfeited the said amount under condition No. F-3. Order under appeal, thus, deserves to be set aside being not legally sustainable.

ACCORDINGLY , while allowing appeal the order dated 18.2.2005 is set aside and complaint dismissed. No order as to cost.