VICE CHAIRMAN, ALLAHABAD DEVELOPMENT AUTHORITY vs ANAMI SHARAN VERMA

THIS is an appeal against the judgment and order dated 27.8.1996 passed by District Forum Allahabad in Complaint Case No. 106 of 1995. Briefly stated the facts of the case are that the complainant had applied to opposite party for allotment of a flat in Badri Housing Scheme, Ashray II, in the Self Financing Scheme. He deposited an amount of Rs. 11,020/- on 28.4.1994 as registration charges. He was informed on 2.5.1994 that Flat No. A-II-122 has been allotted to him. The cost of the flat was indicated as Rs. 2,74,588/-. The complainant took loan of Rs. 1,94,000/- from his employer M/s. New India Assurance Company Limited. The amount of Rs. 1,94,000/- was deposited with opposite party on 31.8.1994. Before the complainant could deposit the balance amount due he came to know through his friends who had applied for the flats in the same scheme that construction work was at stand still for the past several months. On making enquiry from Contractors and the opposite party he was convinced that the opposite party had given up the construction due to lack of funds since April, 1994. The allottees of 92-93 were not given possession of the flats as they were not complete. The complainant was not informed by the Development Authority to deposit the balance amount. On the loan taken by the complainant interest is being charged by the employer and he is residing in a rented house for which Rs. 1,200/- per month is being paid. THIS has caused undue hardship to him. He had to pay 16% interest on the amount taken from provident fund of Rs. 58,000/-. There is no possibility of getting the possession of flat in the near future. He, therefore, lodged a complaint before District Consumer Forum seeking the refund of the deposited money of Rs. 2,05,020/- along with interest @ 18% from 31.8.1994 till the date of payment. An amount of Rs. 5,000/- was also claimed for mental torture and inconvenience.

IN its written statement before District Forum the opposite party, Allahabad Development Authority denied the allegations and stated that the complainant has made false assertions. The complainant himself failed to deposit the amount demanded by the authority as cost of flat. It was stipulated in clear terms that possession will be delivered only when the complainant deposits the entire amount of estimated cost. The development work was near to completion and the authority will hand over the possession as soon as final payment is made by the complainant. It was admitted that Flat No. A-II-122 of Badri Housing Scheme II Phase was allotted to the complainant and as per terms of brochure the possession was to be delivered only after the complainant deposits the entire amount against the cost of the flat. He has, therefore, to pay the balance amount first and only thereafter the possession can be claimed. The complainant failed to pay the due amount within the stipulated time. The authority had informed the complainant and demanded the amount by letters dated 5.8.1994 and 23.8.1994 but the complainant instead of complying with the letters lodged the complaint before the District Forum. Parties led their respective evidence before the District Consumer Forum. The District Consumer Forum after hearing the case decreed the complaint by directing the Allahabad Development Authority to return the complainant the amount paid by him which comes to Rs. 2,05,020/- along with interest @ 15% p.a. An amount of Rs. 200/- was also awarded as cost to the complainant. For failure of complying the order the interest was to be paid @ 18% p.a.

Aggrieved of this order the Allahabad Development Authority has come in this appeal.

WE have heard the arguments of learned Counsels for the two parties. Learned Counsel for the appellant has argued that the complainant has only paid an amount of Rs. 2,05,020/- and had not paid the balance amount which is due as per terms and condition of the allotment letter. The complainant had violated the terms and conditions of the brochure of the scheme. It was also argued that there was no deley in possession and the construction work was to be completed as soon as the entire amount had been paid by the complainant.

ON the other hand the learned Counsel for the respondent has argued that the allotment was made under the self financing scheme and the allotment involved in the present case was that of one unallotted flat for which the complainant had applied and the same was allotted to him on the basis of cash down payment. Therefore, there was no question of not delivering the possession of the flat for which cash down payment had been made. It was further argued that since the complainant who had deposited the major portion of the amount had come to know that the construction work was not complete. Therefore, he wanted to withdraw from the scheme and take back the amount because of deficiancy on the part of Allahabad Development Authority, the opposite party. We have also gone through the evidence placed on record. A perusal of the allotment letter goes to show that the complainant was allotted the flat on 2.5.1994 in response to his application dated 25.4.1994. On 26.4.1994 the officer concerned of the opposite party passed an order that in case the flat is available the same be allotted to him. The allotment letter indicates that the amount of Rs. 2,63,588/- was required to be deposited by the complainant after adjusting the amount of registration which was Rs. 11,020/-. The allotment letter also indicates that in case the amount is not paid within the prescribed time then the penal interest @ 18% p.a. was payable. Annexure-3 is the letter from Allahabad Development Authority intimating to the complainant that the desired amount had not been remitted by the complainant. It was after three months of the allotment letter. Again a letter was sent by the opposite party to the complainant on 23.8.1994 to deposit the balance amount otherwise the allotment made was liable to be cancelled and the amount would be forfeited. The complainant did not comply with the directions of the opposite party and instead sought the refund of the deposit along with interest. Thus we find that it is the complainant who had violated the terms and conditions of the allotment letter. The complainant deposited an amount of Rs. 1,94,000/- and he did not deposit the entire cost of flat as indicated in the allotment letter. The main plea put forward of the complainant is that possession of the flat in question was not ready and construction work was not complete. If that had been so the flats would not have been allotted to other parties. If the complainant had deposited the entire amount as desired by Allahabad Development Authority and possession was not delivered to him because of the fact that construction work was not complete then the situation would have been different. In this case the Allahabad Development Authority did not commit any deficiency in service by asking the balance amount. Normally in the Self Financing Scheme the opposite party the Development Authority or the Housing Board take minimum time of six months for delivering the possession after the last instalment is deposited. In this case the full amount of the cost was not deposit. The District Consumer Forum, therefore, erred in holding that Allahabad Development Authority was deficient in service. In view of this the judgment and order passed by District Forum are liable to be set aside.

NOW we come to the question of amount to be paid to the complainant. The complainant had deposited an amount of Rs. 2,05,020/-. As far as refund of registration and other money is concerned, it has been the consistent view of this Commission that on the refund of amount, interest paid is normally 9% p.a. Therefore, the complainant shall be entitled to only 9% p.a. interest. The complainant is also not entitled for any cost and, therefore, the order of Rs. 200/- as cost as directed by District Forum is also liable to be struck down and the appeal is liable to be allowed partly. ORDER The appeal is partly allowed. The judgment and order passed by District Forum are set aside. It is directed that the appellant shall pay to the complainant the deposited amount of Rs. 2,05,020/- along with interest @ 9% p.a. from the date of deposit till the date of payment. There will be no order as to cost. Let compliance of the order be made within a period of three months from the date of this order. Let copy as per rules be made available to the parties. Appeal partly allowed.