SURESH CHAND GUPTA vs HARYANA HOUSING BOARD

WHETHER the Haryana Housing Board is obliged to make monetary refund to the unsuccessful applicants (for its various housing schemes) only by way of bank drafts? This has been raised as the primal question in this appeal.

THE facts are not in dispute at all. THE appellant applied to the Board for allotment of an MIG-II category house proposed to be built at Palwal and deposited the earnest money of Rs. 4,830/- by a bank draft on the 16th of July, 1991. THE draw therefor was held at Chandigarh a little after three months on the 31st of October, 1991. THE applicant was duly informed on the 14th of November, 1991 regarding his failure in the draw of lots. THE deposited amount was refunded to him by a cheque dated the 2nd of December, 1991 which was however, collected by the Bank and credited to the appellant''s account on the 7th of January, 1992. The complainant-appellant before the District Forum primarily urged for the payment of interest to him on the earnest money which was allegedly used by the respondents for six months. This claim was stoutly resisted by the respondents The District Forum on the appraisal of the material before it came to the conclusion that a welfare organization like the respondent-board had to handle thousands and thousands of applications which have to be duly processed and refund sent to a large number of unsuccessful bidders which is a time-consuming process. Holding that since the refund was allowed and delivered to the appellant within three months, there was no merit in his claim of interest and therefore, dismissed the complaint.

Mrs. Daya Chaudhary, the learned Counsel for the appellant herein had put in the fore-front her plea that the respondent board received the deposit only by way of a bank draft and was consequently obliged to make the refund as well in the identical manner. It was contended that the failure to do so is unwarranted and would be a patent deficiency in the services undertaken to be rendered As a matter of practice, it was pointed out that the payments by way of cheques takes inordinately long time in the collection thereof, thus placing the consumer-applicant to unnecessary and unwarranted financial hardship.

THOUGH the aforesaid submission has been pressed with great vehemence and forensic ability, we are unable, to find a modicum of merit therein. What first calls for notice as a matter of approach is the fact that within the consumer jurisdiction in the context of the hiring of services, relief can be granted in the case the hiring of services only in the event of a deficiency therein. This is a term of art and has been precisely defined under the Act. It is, therefore, apt to recover thereto at the very out-set: "2(1)(g) "deficiency" means any fault, imperfection, shortcoming or inadequancy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being, in force or has been under taken to be performed by a person in pursuance of a contract or otherwise in relation to any service."

Now a plain reading of the above would show that any fault, imperfection of shortcoming in this context has first to be either with regard to some thing which is required to be maintained by or under any law for the time being in force. The learned Counsel for the appellant could not even remotely point out to any law or other enforceable provision which requires that the refund must necessarily be done by bank draft alone and not otherwise. Indeed, it is somewhat plain that there is no such legal requirement in strictitude. In the alternative, such a liability could arise in pursuance of a contract as mentioned in the definition. Herein again, no term or condition in the offer or in the contract betwixt the applicant and the board could be pointed out which mandates the refund of the money only through bank drafts. Consequently, there is no such contractual liability laid on the respondent-board. There remains a residuary clause where such an obligation may otherwise arise in relation to any service. Equally even under this nothing could be pointed out which lays this burden on the respondent or clothes the appellant with enforceable right of this nature. Once it is so, it would, be clear that the repayment of the refund by way of cheques to the applicants cannot be brought within the four corners of any deficiency under the Act.

IN appraising the somewhat doctrinaire plea of the appellant one cannot loose sight of the actual ground realities. It was rightly pointed out on behalf of the respondents that in order to encash the deposited money and to process the matter expeditiously for the draw of lots, the Housing Board has necessarily to seek such deposits either in cash or by way of demand drafts. Were it otherwise, the collection of thousands of cheques of the applicants may take a long time and thus withhold the draw of the eligible applicants, wherein the condition of the payment of deposit is primal. Therefore, the theory of the alleged reciprocity in the mode of refund is not rested on any sound foundational base. Nor is it easily practicable for the Board to get bank drafts prepared in the names of thousands and thousands of such applicants as has been noticed by the District Forum. Significantly, in such a situation, the parties are ordinarily to be governed by the terms of the agreements. It is nowhere provided either in the advertisement or in the application or for that matter anywhere else that the refund will be done in the identical mode of the receipt of the deposit or that the same will necessarily be made through bank drafts. The absolute claim raised in this context appears to us as somewhat far-fetched. In this context it would lastly appear that the source of the grievance of the applicant is the delay in the collection of the cheques issued by the Board. As in the present case, it is suggested that though the cheque issued by the respondent was dated the 2nd of December. 1991 it was not actually collected and credited to the appellant''s account till nearly a month and a half thereafter on the 17th of January. 1992. It appears to us that the appellant is trying to shift the blame for such delay on the shoulders of the respondent-board whilst in essence this should be squarely laid at the door of the collecting banks. If there is inordinate delay and procrastination in collection, the remedy lies against the banks and not against the respondent-board wherein it issues the cheques promptly and its creditworthiness is not in serious doubt, For the foregoing reasons, the answer to the question posed at the out-set is rendered in the negative. It is held that the Board is not obliged to make the refunds to the applicants by way of bank drafts only.

ONCE it is held as above, it would be plain that the main plank of the appellant''s case falls to the ground. However, an ancillary plea was raised repeating the stand that because of the passage of nearly six months betwixt the deposit of the earnest money and the collection of the refund cheque the appellant was entitled to interest thereon for the whole period. Reliance was placed on the short order of the Chandigarh Commission in II (1991) CPJ 583, Punjab Housing Development Board v. Shri Anil Sharma.

WE regret our inability to agree. What first merits notice in this context is the fact that the deposited earnest money has to be necessarily retained by the Board till the holding of the draw of lots. It bears repetition that in the context of the thousands of applications made for the housing schemes, the same have to be necessarily processed and the eligible applicants clearly demarcated. In the present case, it merely took three months from the closing date of the receipt of the applications till the holding of the draw on the 31st of October, 1991. One cannot characterise this period as inordinate delay from which any penal consequences could ensue. It is only thereafter that the issue of refunding the amount to the unsuccessful candidates would arise. In the present case in a little more than a month, the cheque dates 2nd of December, 1991 was despatched to the appellant. Herein, again one cannot possibly characterise it as belated. What next calls for notice is .the fact that the Board is a statutory organisation which is governed by its regulations. Our attention was drawn by the learned Counsel for the respondents to Regulation 12 framed under the Haryana Housing Board Act. This is in the following terms :- "12. Refund of amount of initial payment : If an applicant is not allotted any tenement under these regulations, the amount of deposit and of initial payment made by him shall, within ninety days of the dale on which the lots are drawn, be refunded to him without interest except when his name is kept on the waiting list. In case, however, any applicant does not wish his name to be kept on the waiting list, he shall be entitled to the refund of his deposits."

Mr. K.K. Jagia, learned Counsel for the respondents fairly contended that the Act and its Regulations are public provisions and the applicants are made more than fully aware that they are governed by the terms of the contract and the relevant statutory provisions. Therefore, in view of Regulation 12, the appellant must be deemed to have unilaterally agreed to the terms thereof expressly mandating the non-payment of interest within the period prescribed. Even otherwise, we are wholly inclined to affirm the view of the District Forum that herein the conduct of the respondent-board was quite a bona fide all throughout.. The alternative submission of the appellant therefore, must also fail.

FOR the foregoing reasons, this appeal is without merit and is hereby dismissed. We however, decline to burden the consumer-appellant with any costs. Appeal dismissed.