Soma Devi vs G.D.A.

THIS order disposes of a compensation application filed by Smt. Soma Devi, Delhi under Section 12B of the Monopolies and Restrictive Trade Practices Act, 1969 (for brief, the Act) seeking compensation from the respondent-Ghaziabad Development Authority (GDA) on the ground that the respondent indulged in unfair trade practices.

THE facts of the case as contained in the compensation application can be summarised as below: The applicant applied to the GDA on 25.5.1989 for allotment of a flat in Govindpuram under Self-Financing Scheme of Basera EWS at a cost of Rs. 32,000/-. In accordance with the reservation letter dated 8th November, 1989 issued by the GDA, the applicant paid the reservation amount as well as four instalments on dates ranging from 6.12.1989 to 30.12.1991. The applicant had in all deposited a sum of Rs. 32,020/-. According to the applicant the respondent had neither allotted any flat nor have refunded the amount paid by her. Consequently, she has claimed the refund of the amount deposited by her with interest.

The respondent filed a reply to the compensation application in which it has stated that due to the increase in the cost of construction the cost of the flat was increased to Rs. 80,900/-. It was also pointed out that looking to public interest the respondent also provided all basic facilities and mosaic flooring. The increase in cost of the flat was communicated to all the allottees and the applicant has neither deposited the increased cost nor asked for refund of money deposited by her. After the pleadings were complete, the following issues were framed : (1). Whether the respondent has indulged in or is indulging in unfair trade practices alleged in the compensation application ? (2). Whether the applicant has suffered any loss or damage as a consequence of the alleged unfair trade practices ?

BOTH the parties agreed that the case could be decided on the basis of affidavit of evidence and counter affidavit of evidence which were duly filed. I gave a hearing to Mr. N.R. Samy, Advocate for the applicant and Mr. Rakesh Upadhyay, Advocate for the respondent. I have carefully gone through the records of the case and also given due consideration to the arguments advanced during the final hearing. The applicant in her affidavit has reiterated what was stated by her in her complaint. There is no dispute about the amount deposited by the applicant. In the counter affidavit of evidence the respondent has pointed out that in the Brochure relating to the scheme only an estimated cost of the flat was provided and the respondent was entitled to charge the actual cost of flat. The respondent looking to public interest decided to construct the flats with all facilities by applying modern techniques. It was also decided to increase the flat area and make the lat safer and earthquake resistant. It was also decided to provide mosaic flooring and wash basin, bath WC with cistern facilities. Since the actual cost of the flat came to Rs. 80,900/- the respondent informed all the allottees of the scheme including the applicant through the letter dated 2.6.1994 and asked for the written consent of each and every allottee within 15 days of the receipt of the said letter. The respondent has filed a copy of the letter-dated 2.6.1994. In this letter, it has been stated that the respondent decided to construct three-storey apartments instead of two-storey apartments and the flat would have mosaic flooring, wash basin, bath WC facilities. In the letter the allottees have been asked to send a written consent within 15 days for the acceptance of the same. The respondent has also attached a list showing the name of the applicant to whom the letter had been sent. The respondent has not stated whether the letter was sent by registered post nor has he given any proof that the letter was received by the allottee. The applicant denies that such a letter was received by him.

IT is true that the Brochure relating to the scheme indicated the only approximate cost of the flat and the final cost would be decided later. IT is, however, clear from the counter affidavit filed by the respondent that the cost of the flat was increased to Rs. 80,900/- from Rs. 32,000/- because the area of the flat was increased and the respondent decided to introduce new features like provision of mosaic flooring and provision for a park and the like. That the respondent is not entitled to recover the extra cost merely on the basis of the terms and conditions as contained in the Brochure is clear from the fact that in the letter dated 2.6.1994 the respondent itself had asked for the written consent and acceptance of the allottees for the revised cost. Admittedly, it is not the case of the respondent that a reply to this letter was received from the applicant. Where there is no such consent for acceptance, the respondent cannot presume that the allottee had opted for the revised terms and conditions specially when there is not even a proof that the letter dated 2.6.1994 was received by the allottee. IT would have been reasonable, where there was no response from the allottees the respondent had refunded the amounts received from them on the ground that the allottees had not opted for the revised terms and conditions. In this case the applicant had applied for a flat as early as 25.5.1989. Even though the applicant in this case has paid the entire amount by 30.12.1991, the respondent had not offered the possession of the house till 2.6.1994 when only it is reported to have asked for the consent by the allottees for the revised cost. This enormous delay in making the flat available after getting the full payment for the flat certainly falls within the definition under Section 36A of the Act constituting an unfair trade practice. In the case of Director General (Investigation and Registration) v. Ghaziabad Development Authority, RTPE 57/95 reported as I (1998) CPJ 9 (MRTP)=1998 CTJ 151 (MRTPC), the Commission held that with reference to the same Self-Financing Scheme with Code No. 549 announced by the respondent GDA that it had indulged in unfair trade practices within the meaning of various clauses of Section 36A of the Act. The Commission had come to this conclusion even though in the compensation application in C.A. 358/97, it was established that the respondent had informed the applicant about the increase in cost of the flat. In the present case, it has not even been established that the applicant was informed of the increase in cost resulting from modifications to the flat. IT has already been pointed out by me that the terms and conditions of allotment of flat cannot be modified without giving an option to the allottees to withdraw from the scheme and to receive back the amounts deposited by them. I am in entire agreement with the conclusion arrived at by the Commission in UTPE 57/95 and have no hesitation to hold that the respondent indulged in unfair trade practices in the present case. There is also little doubt that the applicant who applied for allotment of the flat and discharged his obligations by way of payment of all instalments of money has suffered loss and damage due to the actions of the . respondent which constitute unfair trade practice. The only question which remains to be examined is the quantum of compensation to which the applicant is entitled. Having regard to the facts and circumstances of the case, I am of the view that the applicant is entitled for getting the refund of the entire amount deposited by her alongwith interest at the rate of 18% per annum in respect of instalments of money paid by her from the dates of their payment till the date of refund. I, therefore, direct the respondent to refund the amount of Rs. 32,020/- paid by the applicant alongwith 18% interest per annum calculated from the dates of each deposit till the date of refund. I further direct that the above refund should be made within eight weeks from the date of receipt of this order subject to the condition that the respondent shall file an affidavit of compliance within one week thereafter. There is no order as to costs. C.A. disposed of.