Chandigarh

DF-I

CC/419/2015

Pawan Kumar Sharma - Complainant(s)

Versus

Chandigarh Housing Board - Opp.Party(s)

In person

18 Nov 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/419/2015
Date of Institution	:	06/07/2015
Date of Decision	:	18/11/2015

 

 

Pawan Kumar Sharma son of Shri Gurudev Prasad Sharma, resident of House No.1194, Sector 28-B, Chandigarh.

…..Complainant

V E R S U S

Chandigarh Housing Board, through its Accounts Officer-III, 8, Jan Marg, Sector 9-D, Chandigarh.

……Opposite Party

 

 

QUORUM:	MRS.SURJEET KAUR	PRESIDING MEMBER
	SURESH KUMAR SARDANA	MEMBER

                                                       

                       

ARGUED BY	:	Sh. Gaurav Bhardwaj, Counsel for complainant
		Sh. Indresh Goel, Counsel for OPs.

                       

PER SURESH KUMAR SARDANA, MEMBER

1.         Sh. Pawan Kumar Sharma, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Chandigarh Housing Board, Opposite Party (hereinafter called the OP), alleging that the Chandigarh Housing Board/OP 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 14.01.2008. In response to the same, the complainant applied for a 2 bed room flat after depositing Rs.1,22,000/-. The draw of lots was to be conducted within six months but due to pendency of writ petitions, the same was held on 04.11.2010 wherein the complainant remained unsuccessful. It has been averred that since the scheme regarding giving flats to everyone was under active consideration of the OP as well as the Chandigarh Administration, therefore, the complainant gave an undertaking that he would not claim any interest on the amount of earnest money, till the final decision is taken by the Chandigarh Administration. Eventually, the earnest money amount of Rs.1,22,000/- was refunded to the complainant vide letter dated 26.10.2012 (Annexure A-4).  When the Complainant took up the matter with the OP, for payment of interest, the OP vide letter dated 06.08.2014 (Annexure A-5) refused to give any interest.  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 OP 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 OP at the savings bank rate. It has been averred that the OP 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 OP. The complainant has made a prayer to award interest on the refunded earnest money of Rs.1,22,000/- from 4.11.2010 till the date of receipt of refund @12% p.a.; to pay compensation of Rs.50,000/- for mental torture, agony and harassment; to award costs of Rs.10,000/- for compelling the complainant to approach this Forum.
2.         In its reply, OP has pleaded that it had floated a housing scheme i.e. “Self Financing Housing Scheme–2008” for the employees of Chandigarh Administration on 14.01.2008 and finally the draw of lots was conducted on 04.11.2010. It has been further pleaded that the complainant 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 04.11.2010 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 earnest money was refunded to the Complainant on 26.10.2012. It has been contended that the complainant is not entitled to any interest whatsoever on the earnest money deposited by him.
3.         The Complainant also filed replication wherein the averments as contained in the complaint have been reiterated and those as alleged in the written statement by the Opposite Party has been controverted.
4.         The parties led evidence in support of their contentions.
5.         We have gone through the entire evidence, written arguments of the complainant and heard the arguments addressed by the learned Counsel for the parties.
6.         It is the admitted case of the parties that the complainant, who is working in the Electricity Wing of Engineering Department in Chandigarh Administration, had applied for a 2-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.1,22,000/- as earnest money. The draw of lots was held on 04.11.2010 in which, the complainant was unsuccessful. 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.1,22,000/- vide letter dated 26.10.2012 (Annexure A-4). The most material question that arises for determination is whether the complainant is entitled to the interest on the amount of refund of Rs.1,22,000/-, if so, for which period?
7.         It has been urged by the learned Counsel for the complainant that this Forum in other cases have ordered to pay interest at the savings bank rate on the amount of earnest money from 04.12.2010 (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. 04.12.2010 till the date of receipt of refund i.e. 26.10.2012 along with compensation and litigation expenses.
8.         On the other hand, the learned Counsel for the OP has urged that the amount of Rs.1,22,000/- 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.
9.         We have given our thoughtful consideration to the rival contentions. It is important to note that in the two identical cases i.e. Rajinder Parshad Joshi and Dalbir Singh Vs. Chandigarh Housing Board & Ors., Consumer Complaints No. 568 and 569 of 2013 decided by this Forum on 01.01.2014, the complaints were filed by the applicants, who were unsuccessful in the draw of lots. In their case, Clause No. (v) under para No. VIII was applicable, in accordance with which, refund of the unsuccessful applicants shall be made within 30 days of the draw of lots without any interest. In case refund is not made within the stipulated period, interest shall be allowed at the savings bank rate beyond the period of 30 days. Hence, in those cases, the interest at the savings bank rate on the amount of earnest money was granted from 4.12.2010 (i.e. one month after the draw of lots, wherein, the complainants were not successful) till the date of receipt of refund by the complainants. The terms and conditions of the brochure Annexure A-6 are binding on the Complainant. No doubt, the complainant himself gave an undertaking vide letter dated 30.11.2010 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 take any prompt decision in the matter. The amount of the complainant was kept from 30.11.2010 till 26.10.2012 without any justification.  Evidently, the OP 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.
10.         So far as the question of payment of compensation by the OP 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.
11.           For the reasons recorded above, we find merit in the complaint and the same is partly allowed. OP is directed as under :-

i)      To pay interest at the savings bank rate on the amount of Rs.1,22,000/- from 04.12.2010 (i.e. one month after the draw of lots, wherein the Complainant was not successful) to 26.10.2012 (the date of receipt of refund by the Complainant).

ii)     To make payment of an amount of Rs.10,000/- to the complainant towards litigation costs. 

12.         This order shall be complied with by the OP within one month from the date of receipt of its certified copy; failing which the OP shall be liable to pay the interest on the amount of Rs.1,22,000/- to the complainant @12% p.a. from 04.12.2010 till realization, besides payment of costs of litigation of Rs.10,000/-.
13.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

 

	Sd/-	Sd/-
18/11/2015	[Surjeet Kaur]	[Suresh Kumar Sardana]
	Presiding Member	Member
“Dutt”