Chandigarh

DF-I

CC/678/2014

Ashwani Kumar - Complainant(s)

Versus

Chandigarh Housing Board - Opp.Party(s)

Rohit Goswami

25 Mar 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/678/2014
Date of Institution	:	13/10/2014
Date of Decision	:	25/03/2015

 

 

Ashwani Kumar son of Shri Mohinder Partap, resident of House No.947-A, Sector 7-B, Chandigarh.

…..Complainant

V E R S U S

1. Chandigarh Housing Board through the Chairman, Chandigarh Housing Board, Sector 9, Chandigarh.
2. Chairman, Chandigarh Housing Board, Sector 9, Chandigarh

……Opposite Parties

 

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                                                       

                       

ARGUED BY	:	Sh. Rohit Goswami, Counsel for complainant
		Sh. Indresh Goel, Counsel for OPs.

                       

                 

PER P.L.AHUJA, PRESIDENT

1.         Sh. Ashwani Kumar, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Chandigarh Housing Board and another, Opposite Parties (hereinafter called the OPs), alleging that the Chandigarh Housing Board/OPs had floated the Self-Financing Housing Scheme-2008 for the employees of Chandigarh Administration as well as the Punjab and Haryana High Court etc. on 14.1.2008. Copy of the brochure is at Annexure C-1. In response to the same, initially the complainant applied for a 2 bed room flat after depositing Rs.1,22,000/-. Subsequently, in view of the judgment dated 18.9.2008 of the Hon’ble High Court in CWP No.2215 of 2008, as the complainant fell in Category ‘A’, therefore, he deposited further amount of Rs.53,000/- with the OPs for being eligible in three bed room flat.  As such, the complainant deposited total amount of Rs.1,75,000/- with the OPs towards the earnest money.  The draw of lots was to be conducted within six months but due to pendency of writ petitions, the same was held on 4.11.2010 wherein the complainant was placed at Sr.No.36 of the waiting list and subsequently registration no. was allotted to him vide letter dated 24.5.2011 (Annexure C-4). Thereafter, without allotting any flat to the successful candidates, the waiting list was scrapped and the earnest money amount of Rs.1,75,000/- was refunded to the complainant vide banker’s cheque dated 2.12.2011.  It has been averred that since the scheme regarding giving flats to everyone was under active consideration of the OPs as well as the Chandigarh Administration, therefore, the complainant personally contacted the OPs and they agreed to take the cheque back with the condition that he would have to give an undertaking that he would not claim any interest on the amount of earnest money. The complainant vide application dated 18.1.2012 [(Annexure C-5 Colly.)] gave the undertaking and the OPs took the cheque back.  However, after a lapse of about five years, the OPs returned earnest money of Rs.1,75,000/- to the complainant vide letter dated 16.1.2013 (Annexure C-6) without paying any interest thereon.  Accordingly, the complainant sent a legal notice dated 18.2.2013 (Annexure C-7) to OP-1 for grant of interest but the same was declined by it vide letter dated 25.3.2013 (Annexure C-8). It has been stated that as per sub Clause (v) of Clause VIII of the terms and conditions of the said Self Financing Housing Scheme–2008, the refund of the earnest money was to be made by the OPs within a period of 30 days of the draw of lots without any interest, but if such refund is delayed beyond 30 days, interest is to be allowed by the OPs at the savings bank rate. It has been averred that the OPs deposited the earnest money of the applicants in various banks and earned interest thereon and they cannot be allowed to usurp the same. According to the complainant, non-payment of interest on the amount of earnest money amounts to deficiency in service on the part of the OPs. The complainant has made a prayer to award interest on the refunded earnest money of Rs.1,75,000/- from 4.11.2010 till the date of receipt of refund @10.50% p.a.; to pay compensation of Rs.50,000/- for mental torture, agony and harassment; to award costs of Rs.30,000/- for compelling the complainant to approach this Forum and Rs.33,000/- as litigation expenses.
2.         In their joint reply, OPs have pleaded that they had floated a housing scheme i.e. “Self Financing Housing Scheme–2008” for the employees of Chandigarh Administration on 14.1.2008 and finally the draw of lots was conducted on 4.11.2010. It has been further pleaded that as per Clause (IV) under para VIII of the brochure of the said scheme, waiting list to the extent of 20% of the total number of units available under each category, subject to minimum one was prepared for a period of one year from the date of draw of lots. It has been further pleaded that Clause VIII (V) of the brochure of the said housing scheme provided that initial deposit would be refunded within 30 days from the draw of lots, to the applicants, who remained unsuccessful and also did not figure in the waiting list and in case the refund was not made within the stipulated time period of 30 days, interest was payable at the savings bank rate beyond the period of 30 days. It has been stated that the complainant and a number of unsuccessful applicants suo-moto approached the office of Chandigarh Housing Board and gave an undertaking dated 30.11.2010 that his earnest money be retained, till a final decision is taken by the Chandigarh Administration and also that he will not claim any interest from 4.11.2010 onwards on the earnest money deposited by him. The earnest money of all the unsuccessful applicants, who had not submitted any undertaking regarding the retention of the earnest money, was refunded.  It has been contended that the complainant was kept at Sr.No.36 in the waiting list, validity of which expired on 3.11.2011, and the earnest money was refunded to him on 2.12.2011 i.e. within 30 days from the expiry of the validity period. It has been further stated that meetings at various levels were held and after detailed deliberations and discussions, on 26.12.2012, it was decided that the earnest money of the unsuccessful applicants, lying with the Chandigarh Housing Board be refunded to them. Thus, the earnest money deposited by the complainant, was refunded to him.  It has been contended that the complainant is not entitled to any interest whatsoever on the earnest money deposited by him.
3.         The parties led evidence in support of their contentions.
4.         We have gone through the entire evidence, written arguments of the complainant and heard the arguments addressed by the learned Counsel for the parties.
5.         It is the admitted case of the parties that the complainant, who is working in the Punjab and Haryana High Court, Chandigarh, had applied for a 3-Bed Room flat in response to the scheme launched by the Chandigarh Housing Board under the name “Self Financing Housing Scheme 2008” for the employees of Chandigarh Administration as well as Punjab and Haryana High Court etc. and deposited total amount of Rs.1,75,000/- as earnest money. The draw of lots was held on 4.11.2010 in which, the complainant was put in the waiting list at Sr.No.36 (General Category). The earnest money was refunded to the complainant vide banker’s cheque dated 2.12.2011. The complainant returned the said cheque with his letter dated 18.1.2012 [Annexure C-5 (Colly.)] submitting that he wanted to keep his money with Chandigarh Housing Board to keep his claim alive so long any concrete decision is not taken by the Chandigarh Housing Board to invalidate the waiting list and matter is not decided in respect of unsuccessful candidates. He undertook that he would not claim any interest on the earnest money so long it was deposited with the Chandigarh Housing Board till final decision was taken by it. Later on, the complainant received the refund of the earnest money of Rs.1,75,000/- vide letter dated 16.1.2013 (Annexure C-6) whereby the OPs annexed the cheque No.071118 dated 2.12.2011 by revalidating the same on 19.12.2012.  The most material question that arises for determination is whether the complainant is entitled to the interest on the amount of refund of Rs.1,75,000/-, if so, for which period ?
6.         It has been urged by the learned Counsel for the complainant that OPs had invited an undertaking from the unsuccessful applicants that their earnest money lying deposited with it be withheld and that they would not be eligible to claim interest on the earnest money. Thereafter, without allotting flats to the successful candidates, the waiting list was scrapped. He has argued that the complainant gave an undertaking in anticipation of allotment of a flat after reconsideration by the Chandigarh Housing Board, after the lapse of waiting period. He has argued that now the case of the complainant is similar to unsuccessful candidates because he did/does not stand any chance to get a flat. He has argued that this Forum in other cases have ordered to pay interest at the savings bank rate on the amount of earnest money from 4.12.2010 (i.e. one month after the draw of lots, wherein, the complainant was not successful) to the date of receipt of refund by the complainant. The learned Counsel for the complainant has vehemently argued that in this case also, since the complainant did not stand a chance to get a flat, therefore, he is also entitled to the interest w.e.f. 4.11.2010 till the date of receipt of refund i.e. 16.1.2013 along with compensation and litigation expenses.
7.         On the other hand, the learned Counsel for the OPs has urged that the complainant was not in the list of the unsuccessful applicants but he was in the list of the waiting list applicants and Clause No.(iv) under para No.VIII of the brochure for the waiting list applicants reads as under :-     

“iv)   A Waiting List to the extent of 20% of the total number of units available under each category subject to minimum one, shall also be prepared by draw of lots which shall remain operative for a period of one year from the date of draw of lots. However, the applicants on the waiting list can withdraw from the scheme at any time during the validity of the Waiting List and the amount of initial deposit shall be refunded in full, without interest. If the validity of Waiting List has lapsed, the applicant(s) of the said waiting list shall be refunded the initial deposit without interest within 30 days of the date of expiry of the validity period.”

The learned Counsel for the OPs has argued that the complainant was refunded the amount of Rs.1,75,000/- vide banker’s cheque dated 2.12.2011 i.e. within the validity period of the waiting list of one year, therefore, he is not entitled to any interest. He has further argued that later on the complainant himself returned the cheque of earnest money vide his request dated 18.1.2012, wherein, he specifically undertook that he would not claim any interest on the earnest money so long it is deposited with the Chandigarh Housing Board till final decision is taken by it. The learned Counsel for the OPs has argued that the amount of Rs.1,75,000/- was refunded to the complainant as per the deliberations and discussions in the meetings at various level and in view of the undertaking given by him, therefore, the complainant is estopped from taking a stand, which is contradictory to the stand already taken by him.

8.         We have carefully considered the rival contentions.  Pertinently, the case of the complainant is squarely covered by an earlier decision of this Forum in Consumer Complaint No.368 of 2014-Varinder Singh Vs. Chandigarh Housing Board & Ors. decided on 4.9.2014.  In the instant case also, it is Clause No.(iv) and not Clause No.(v), which is applicable because the complainant was placed in the waiting list. The terms and conditions of the brochure Annexure C-1 are binding on the complainant. Once the complainant was placed in the waiting list, he is entitled to the interest as per Clause (iv) and not as per Clause (v). Since the amount of the earnest money was refunded to the complainant vide banker’s cheque dated 2.12.2011 i.e. during the validity period of the waiting list, therefore, he is not entitled to any interest from 4.11.2010 to 2.12.2011. However, we feel that after the complainant re-deposited the cheque of earnest money with the OPs on 18.1.2012, he becomes entitled to the interest on the same till the date of refund on 16.1.2013. No doubt, the complainant himself gave an undertaking vide letter dated 18.1.2012 for keeping his money with the Chandigarh Housing Board to keep his claim alive so long any concrete decision was not taken by the Chandigarh Housing Board and also undertook that he would not claim any interest on the earnest money till the final decision is taken by the Chandigarh Housing Board, however, it is significant that the Chandigarh Housing Board did not give any reply to the letter dated 18.1.2012 sent by the complainant. Complainant was not informed that the amount of Rs.1,75,000/- sent by him was not being refunded because his request for allotment of the flat was still under consideration. Further, the Chandigarh Housing Board did not take any prompt decision in the matter. The amount of the complainant was kept from 18.1.2012 till 16.1.2013 without any justification.  The information obtained by the complainant through RTI at Annexure P-9 shows that the OPs have been earning higher amount of interest on the deposits with different banks. Evidently, the OPs could not retain the earnest money deposited by the complainant for an indefinite period. Since the amount was utilized by the Chandigarh Housing Board for the above said period, we are of the opinion that the complainant is certainly entitled to savings bank rate interest for the above said period at the rate granted to the unsuccessful applicants by this Forum in other cases.
9.         So far as the question of payment of compensation by the OPs is concerned, it is important to note that in an appeal against one similar case titled Chandigarh Housing Board Vs. Rupinder Kaur, First Appeal No.474 of 2013, decided on 17.12.2013, the Hon’ble State Consumer Disputes Redressal Commission, UT, Chandigarh did not allow the grant of compensation of Rs.20,000/- awarded by this Forum on the ground that the complainant had himself requested to the Chandigarh Housing Board not to refund the earnest money until and unless the issue with regard to the allotment of flats to the left out employees was decided. Thus, in view of the law laid down by our own Hon’ble State Consumer Disputes Redressal Commission in Chandigarh Housing Board Vs. Rupinder Kaur (supra), the complainant of this case is also not entitled to get any compensation for mental agony and harassment.
10.           For the reasons recorded above, we find merit in the complaint and the same is partly allowed. OPs are directed as under :-

i)      To pay interest at the savings bank rate on the amount of Rs.1,75,000/- from 18.1.2012 to 16.1.2013 to the complainant.

ii)     To make payment of an amount of Rs.7,000/- to the complainant towards litigation costs. 

11.         This order shall be complied with by the OPs within one month from the date of receipt of its certified copy; failing which the OPs shall be liable to pay the interest on the amount of Rs.1,75,000/- to the complainant @9% p.a. from 18.1.2012 to 16.1.2013, besides payment of costs of litigation of Rs.7,000/-.
12.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-
25/03/2015	[Surjeet Kaur]	[P. L. Ahuja]
hg	Member	President