DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Ex. Case No.19/2016

Sh. Saurabh Aggarwal

LR of Mrs.  Saraswati Devi Aggarwal

R/o C-118, East of Kailash,
New Delhi 110065

….Complainant

Versus

Delhi Development Authority

Through its Vice Chairman

Vikas Sadan, INA, New Delhi

        ….Opposite Party

 Date of Institution    :    14.03.2016   

 Date of Order            :    20.07.2022  

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

President: Ms. Monika A Srivastava

The present execution petition has been filed to execute an order dated 24.02.2000 passed by this Commission had directed the OP-DDA to allot a flat to the Decree Holder(DH) of the type of category of III SFS V scheme at the rates prevalent at the time when other persons were allotted flats of that category of that scheme. This order was later modified by the Hon’ble SCDRC vide their order dated 22.09.2006 and rate of flat was changed to the rate prevalent on the date of its order i.e. 22.09.2006. The relevant extract of the order of SCDRC is reproduced hereinbelow:

“8. The grievance of the respondent can be remedied by directing the appellant to allot one flat in the aforesaid locality at the rate prevalent today.”

In pursuance to the orders passed by Hon’ble State Commission, the Judgment debtor (JD) initially issued a demand letter against 5th and final instalment dated 14.07.2008 wherein the cost of flat was stated to be Rs.51,12,770/- and after adjusting a sum of
Rs.1,50,000/- paid earlier, raised a demand of Rs.50,97,770/- from DH. The DH challenged the valuation of the flat vide its legal notice dated 15.10.2008, consequent to which JD revised its demand vide another letter dated 26.03.2009 wherein the  cost of flat was stated to be Rs.37,97,612/- and after adjusting a sum of Rs.15,000/- paid earlier raised a demand of Rs.37,82,612/- from DH.

It is stated by the DH that order passed by SCDRC was partially complied with in as much as DH was allotted flat no. L-182, Sarita Vihar vide allotment letter dated 14.07.2008. It is, however, stated that JD has incorrectly calculated the cost of flat on two counts, the first being the rates were quoted as on the date of issuance of letter though they were required to quote the rates as applicable on 22.09.2006 and secondly, surcharge of 20% was included in the calculation, which surcharge has been declared to be illegal by the Hon’ble Supreme Court of India in the matter of DDA vs Joint Action Committee, (2008) 2 SCC 672. The DH has prayed for refund of a sum of Rs.79,78,997.25 which she claims comprises of amount paid in excess, interest of excessive payment and damages for delay in compliance.

JD, in response, has stated that it has complied with the order passed by Hon’ble State Commission by allotting the flat to the DH, therefore the present execution petition is not maintainable. It is further stated that conveyance deed has been executed in favour of Shri Saurabh Aggarwal, (one of the LR’s of the deceased DH) on 25.11.2009 and no protest was lodged by the DH hence they are estopped from filing the present execution petition. It is further stated that the costing of the flat was calculated at Rs.37,35,242/- as per rates prevalent during 22.09.2006. Free hold charges of Rs.62,370/- was added to it raising the value of the flat to Rs.37,97,612/-. It is further stated that issue of pricing is outside the purview of the executing Court.

Section 71 of Consumer Protection Act of 2019 is clear that the provisions of Order XXI of Code of Civil Procedure 1908 would be applicable to the proceedings before this Commission in execution. Part II of the Code of Civil Procedure 1908, comprising of section 36 to section 74 pertains to execution of decrees hence would be applicable to execution proceedings before this Commission. Section 47 thereof deals with questions which an executing court has to deal with. Relevant extract of section 47 is reproduced herein below:

Section 47: Questions to be determined by the Court executing decree-

(1).    All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit.

The Hon’ble Supreme Court in the matter of Jugal Kishore vs Raw cotton AIR 1955 SC 376 has categorically held Section 47 of the Code of Civil Procedure 1908 requires that the executing Court alone must determine all questions arising between the parties or their representatives and relating to the execution, discharge or satisfaction of the decree and authorises it even to treat the proceedings as a suit.

The DH in the present application has claimed execution on following three counts:

1. JD has demanded excessive money by incorrectly calculating the cost of the flat as on the date of passing of order by Hon’ble State Commission;
2. DH is entitled to interest on excessive money paid
3. DH is entitled to damages for delay in allotment of flat

This Commission is of the view that it shall fall within the purview of an executing court to determine whether JD has correctly valued that flat and raised a justified demand in its demand letter 26.03.2009. The executing court can investigate to arrive at a finding in this regard. Accordingly, the present issue is being entertained by this Commission, as executing court.

JD has filed certain pages which appear to be part of official file wherein the cost of subject flat as on 22.09.2006 is indicated as Rs.37,35,242/- which included following five components:

(a) Cost of construction

(b) Department charges

(c) Interest @ 10% for eighteen months,

(d) Cost of land and surcharge and

(e) Surcharge @ 20%

The total amount claimed under headings (a) to (d) above arrive at Rs.31,12,702/- on which a surcharge of 20% was charged as Rs.6,22,540/- thereby raising the total cost of flat to Rs.37,35,242/-. Another sheet filed by JD claimed Rs.62,370/- towards free hold charges. After adjusting a sum of Rs.15,000/- paid earlier, as registration money, the balance due is calculated at Rs.37,82,612/-.

Per contra, DH has filed its own calculation wherein the basic cost of construction was calculated at Rs.1,85,334.52/-, cost of land was calculated at Rs.2,82,395.10/-. Total due, as per DH is Rs.5,00,000/-. The cost of flat according to DH after adding conversion charges is Rs.5,20,370/-. DH has not added any money towards surcharge and interest on delayed payment. DH has also filed a reply received through RTI and a statement showing tentative cost of flats of Mukherjee Nagar, Kondli, Gharoli and Vasant Kunj. It is relevant to note that pricing indicated by DH are ipse dixit. The tentative cost of flat at Sarita Vihar has also not being filed.

The Hon’ble Supreme Court in DDA vs Joint Action Committee, (2008) 2 SCC 672  has clearly barred imposition of surcharge @ 20% thus JD is not entitled to claim the same from DH. Therefore, the calculation given by JD emanates from the official records is accepted as correct except the imposition of surcharge @20%.

JD is thus directed to refund a sum of Rs.6,22,540/- charged as surcharge along with interest @ 7 % from 14.03.2016 being the date of filing of present execution petition till the date of payment. The payment be made to DH within three months from the date of passing of this order.

File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.