BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 108 of 2018
Date of Institution : 22.3.2018
Date of Decision : 22.2.2019.
Sandeep Kumar aged about 40 years son of Shri Sunder Shyam, resident of village Talwara Khurd, Tehsil and District Sirsa now resident of Petrol Pump Wali Gali, Gobind Nagar, Hisar Road, Sirsa, District Sirsa.
……Complainant.
Versus.
- Chief Revenue Officer, (PM) for Chief Administrator, Housing Board, Haryana, Panchkula, Plot No.C-15, AWAS BHAWAN, Sector-6, Panchkula.
- Estate Manager, Housing Board Haryana, Hisar, Sector-15A/305A, Hisar.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. ISSAM SINGH SAGWAL …… MEMBER.
Present: Sh. Sandeep Khattar, Advocate for the complainant.
Sh. Sachin Nanda, Advocate for opposite parties.
ORDER
The case of the complainant in brief is that complainant had applied for allotment of a Type-B flat measuring 46.071 Sq. meter in Sector 19, Sirsa and as per the policy of the ops, 10% of the total amount i.e. Rs.75,000/- was deposited by him with the ops through Financer Haryana Gramin Bank, Sirsa and the remaining amount was to be paid by the complainant with the ops on his being declared successful for allotment of the flat. That thereafter vide letter bearing No.HBH/CRO(PM)/ 2010/6214 dated 12.11.2010, the complainant was declared to be successful for allotment as per the draw held by ops on 20.9.2010 vide provisional registration No.6003 and final registration No.974. Vide this letter, the complainant was asked to deposit the remaining amount of Rs.1,15,000/- with the ops on or before 31.12.2010. That in compliance of the aforesaid letter dated 12.11.2010, the complainant got deposited the aforesaid remaining amount of Rs.1,15,000/- with the ops but inspite of making the payment of the total demanded amount, the allotment of the complainant was cancelled by ops and on 2.2.2015 the amount of Rs.1,15,000/- deposited by the complainant was refunded to him alongwith upto date interest totaling Rs.1,60,021/- through cheque in his account whereas 10% amount i.e. Rs.75,000/- was kept by the ops with them saying that same is being kept by them as security/ application fee for the allotment of another flat in the same locality of the same price. Then they at their own applied for another flat in the same locality in the name of complainant and thereafter vide letter bearing No.HBH/CRO (PM)/2015/9149 dated 26.10.2015, the complainant was declared to be successful for allotment as per the draw held by the ops on 20.8.2015 vide registration No.1214/SRS/T-B/HB/GENER, final registration No.774. Vide this letter, the complainant was asked to deposit a further sum of Rs.3,53,987/- (Rs.1,15,000/- as 15% of the tentative price of the flat and Rs.2,38,987/- as amount of ELC as per the demand raised by HUDA) with the ops which was paid by complainant with the ops vide DD No.50565 dated 20.11.2015. It is further averred that after making the payment of the aforesaid amount, instead of making the allotment of the flat to the complainant, the ops issued a further letter bearing No.4967 dated 8.10.2016 vide which the total amount of the flat was informed to the complainant as Rs.16,61,710/-. It was further informed to the complainant that out of this amount, an amount of Rs.4,28,986/- has already been deposited by the complainant with the ops. That was for the utter surprise of the complainant because at the time of cancellation of allotment of the earlier flat, it was promised and assured by the ops that the another flat shall be allotted to the complainant in the same locality on about same price but on receipt of the letter bearing No.4967 dated 8.10.2016, the complainant became surprised as the flat was beyond the economical capacity of the complainant. This act on the part of the ops was totally unlawful, unwarranted and arbitrary. Thus, the complainant contacted the ops in this regard but the ops openly stated that in case the complainant is interested to the allotment of the said flat, he has to deposit the demanded amount within the fixed period otherwise his allotment shall be cancelled and the amount of security shall be forfeited. It is further averred that as the complainant was left with no other alternate, therefore, on 25.11.2016 he made an application to the Estate Manager, HBH, Hisar vide which he desired to surrender his flat and requested to refund the amount paid by him to the ops. The application filed by complainant is still lying unheard and the amount paid by him is still lying with the ops. That complainant has been making rounds and rounds to the office of ops time and again but the ops are not paying any heed to the genuine request of the complainant and are avoiding him on one false pretext or the other. That such act and conduct on the part of ops amounts to deficiency in service, unfair trade practice and they have committed gross negligence in performing their statutory duties and on account of the same, the complainant has suffered unnecessary harassment, hardship and mental tension for which he is entitled to be compensated by the ops. That now about a week ago, the ops have flatly refused to admit the genuine claim of complainant. Hence, this complaint.
2. On notice, opposite parties appeared and filed written statement and submitted that in order to clarify the position regarding the claim of complainant, it is essential to mention the allotment process of HBH. When a scheme is floated and applications are invited, in the first stage a draw of lots is held to identify the successful applicants equal to the number of flats advertised. After identification of the successful applicants, the work of construction of flats is stated and after two to three years when the flats are constructed, second draw is held for allotment of flat numbers to the intact applicants. An applicant is required to deposit 10% earnest money alongwith application form and if he/she is successful in the draw of lots, then he/she is required to deposit further 10% to 15%amount and thereafter when the draw of flat numbers is held the applicant is required to deposit another 15% amount as allotment money and the balance amount is to be paid in monthly installment over a period of 10 to 13 years depending upon the scheme. It is further submitted that in the present case, the applicant deposited 10% amount i.e. Rs.75,000/- alongwith application form as earnest money and he deposited another 10% (Rs.75,000/-) as he was successful in the draw of lots. Subsequently the flats were constructed and he was allotted flat No.244-A, HBC, Sector-19, Sirsa, therefore, he was required to deposit allotment money and take possession of flat and pay the remaining amount in monthly installment. The applicant failed to deposit the amount and requested for surrender of his flat. It is submitted that as per regulation 13 of HBH (Allotment Management and Sale of Tenements) Regulations, 1972, if any applicant is allotted a tenement but he failed to take possession within 30 days from date of receipt of allotment letter or surrender the same, then 50% of the earnest money deposited by him is liable to be forfeited. Accordingly, an amount of Rs.37,500/- is liable to be forfeited and balance amount would be refunded to the applicant. It is further submitted that the request of surrender of flat was received from the complainant on 25.11.2016 vide diary No.11161 and the same has been entered in the seniority list of the refund and the name of applicant figures at serial no. 319 of 2017 list which is also available on the website of HBH, hence the balance amount of Rs.3,94,186/- would be refunded to the applicant as per HBH Regulations and as per his seniority ranking. It is further submitted that the land for this scheme was allotted to HBH by HUDA and after construction of the flats, demand for enhanced compensation was raised by HUDA. Since HBH provides affordable housing at nominal rates, therefore, as per policy and regulations, the demand of enhanced compensation was transferred to the allottees proportionately which led to an increase in the cost of the flat. It is further submitted that complainant has concealed true and material facts from this Forum, so he is not entitled to any relief from this Forum. The complainant himself failed to pay the amount claimed by ops vide their letter/Memo No.4967 dated 8.10.2016. It is further submitted that it is entirely wrong to say that amount of Rs.1,15,000/- was the remaining amount. This amount was infact 15% of the tentative price of the flat so that the total amount deposited by complainant becomes equal to 25% of the tentative price (Rs.75,000/- i.e. 10% deposited earlier and Rs.1,15,000/- i.e. 15% deposited after draw of lots). It is further submitted that draw held on 20.9.2010 was set aside by the Hon’ble High Court vide its order dated 1.5.2012, so the allotment of the complainant was cancelled legally. The amount of Rs.1,15,000/- refunded by the ops to the complainant is a matter of record. The draw for the allotment of flats was held again with the consent of complainant and complainant was again allotted one flat at Sirsa. The complainant was duly informed vide letter dated 26.10.2015 regarding allotment of new flat at Sirsa in draw held on 20.8.2015. The contents regarding deposit of Rs.3,53,987/- by complainant with ops are matter of record. It is further submitted that it is correct that vide letter no.4967 dated 8.10.2016 the complainant was informed that the actual cost (Final Price) of the flat comes to Rs.16,61,710/- and the complainant was further requested through this letter to take possession of the house within 30 days of the issuance of this letter after depositing Rs.7,81,909/- as first installment and rest amount is to be paid in monthly installments of Rs.10,995/- per month. It is further submitted that no promise or assurance regarding price as alleged by complainant had been given by the ops at the time of cancellation of allotment of earlier flat. As per the conditions of allotment, the amount of monthly installment, rate of interest to be charged and the total cost of the house/ flat can be increased at any time without assigning any reason. The complainant failed to execute the agreement and take possession of the house within 30 days of the issuance of allotment letter i.e. latest by 7.11.2016, so his name is liable to be removed from the allotment register and 50% of the earnest money deposited by him is liable to be forfeited. It is further submitted that complainant has no cause of action to file the present complaint as the refund of 50% of earnest money to the allottees who have surrendered their flats is under process as per list of applicants and there has never been any denial on behalf of the op board rather the amount is being refunded to the applicants as per the list. It is further submitted that this Forum has no jurisdiction to entertain the present complaint. As per the general conditions of the Broacher, it was made clear to the applicants that all the disputes concerning allotment of dwelling units under the scheme shall be subject to Panchkula jurisdiction. Remaining contents of the complaint are also denied.
3. The parties then led their respective evidence by way of affidavits and documents.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. The complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has reiterated all the averments made in his complaint. He has also furnished allotment letter Ex.C1, copy of pass book Ex.C2, copy of letter dated 26.10.2015 Ex.C3, copy of demand draft Ex.C4, copy of letter dated 8.10.2016 Ex.C5, copy of application for surrender of flat Ex.C6, copy of affidavit Ex.C7 and postal receipt Ex.C8. On the other hand, ops produced affidavit of Sh. Rajbir Singh, Estate Manager Ex.RW1/A, copy of application Ex.R1, copy of letter dated 26.10.2015 Ex.R2, copy of letter dated 8.10.2016 Ex.R3, copy of letter/notice Ex.R4, copy of application for surrender Ex.R5, copy of affidavit Ex.R6, copy of voter card Ex.R7, copy of letter No.6984 of 2016 Ex.R8, copy of letter dated 23.12.2016 Ex.R9, copy of regulations Ex.R10 and copy of regulation No.13 Ex.R11.
6. It is undisputed fact between the parties that complainant had applied for allotment of a Type-B flat measuring 46.071 Sq. meter in Sector 19, Sirsa and same was allotted to him. It is further undisputed fact that complainant had deposited Rs.75,000/- with ops as 10% amount against said allotment and thereafter complainant had further deposited Rs.3,53,987/- as tentative price of another flat on the direction of the ops but as per allegations of complainant later on the amount of allotment was arbitrarily enhanced by ops and complainant was not satisfied with the enhancement as a result of which he surrendered flat to ops and made request for refund of the price which he deposited alongwith interest. During the course of arguments, learned counsel for ops has not denied any fact regarding allotment, deposit of amount by complainant and surrender of the flat but however, he has submitted that due to financial crisis in the housing board they could not make refund of the amount so deposited by complainant despite letter of surrender of flat submitted by the complainant which has already been accepted by ops. But however, the ops have agreed to make refund of this amount vide their different letters written to the allottees like complainant. He has also referred letter Ex.R8 written by Estate Manager, Housing Board Haryana, Hisar addressed to the Executive Engineer, Housing Board Haryana, Rohtak by which they have calculated amount of Rs.3,91,486/- being refundable to the complainant and they have never refused to make refund of the amount, but however, they made request for grant of sometime to make refund. Ld. counsel for ops has further stated at bar that ops have already framed a list of the claimants/ complainants who are entitled to refund and the name of the complainant has been figured at Serial No.319 and as soon as refunds will be available to the board, the board will make refund of the amount so deposited by complainant. So, it appears from the version of learned counsel for ops that there is bonafide request of the ops for grant of time to make refund of the amount so deposited by complainant.
7. Learned counsel for ops has also contended that as per terms and conditions of the allotment, out of earnest money of Rs.75,000/-, in case of surrender of the flat, the ops were entitled to forfeit 50% of the said amount and as such 50% amount of the earnest money i.e. Rs.37,500/- has been deducted from the amount of complainant. Though, learned counsel for complainant has strongly opposed this deduction but however, he has failed to produce any law or any provision which makes him entitled to get this amount of Rs.37,500/- which has been deducted by ops on account of surrender of the flat by complainant.
8. Though, it was legal obligation of the ops to make refund of the complainant after acceptance of the request for surrender of the flat, but however same has not been made due to financial constrain in the board, but however, the ops are liable to pay the amount of refund with interest at contractual rate of interest which board was charging from their allottees and non payment of the amount of refund clearly amounts to deficiency in service on the part of ops.
9. In view of the above, we allow the present complaint and direct the opposite party to pay/ refund amount of Rs.3,91,486/- within a period of 90 days from the date of receipt of copy of this order. The ops are further directed to pay interest at the contractual rate of interest which has been agreed between the parties at the time of agreement from the date of acceptance of surrender request till actual realization. We also direct the ops to further pay a sum of Rs.20,000/- as compensation and Rs.5000/- as litigation expenses to the complainant. The ops are liable to comply with this order within above stipulated period, failing which the complainant will be at liberty to initiate proceedings under Sections 25/27 of the Act against the ops. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced in open Forum. Member President,
Dated: 22.2.2019. District Consumer Disputes
Redressal Forum, Sirsa.
