DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi-110016

Case No.1087/2007

Mrs. Usha Kiran

W/o Shri N.C. Garg,

Sunder Bhavan,

P.Paras Ram,

Rohtak-124001 (Haryana).                                       

….Complainant

Versus

Delhi Development Authority

Through Commissioner Housing

Vikas Sadan, Near INA Colony,

New Delhi.                                                  

      ….Opposite Party

                                                  Date of Institution      :      28.09.2007      Date of Order    :       17.02.2018

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

As per the averments made in the complaint, the complainant registered herself with the OP under “Self Financing Scheme No.-5” vide application No. 000598 along with FDR No. 004134 dated 14.08.1982 for Rs.10,000/- for the allotment of residential flat and subsequently in response to an advertisement, the complainant submitted her application for draw of lots giving options/ preferences for certain areas as desired by the OP in the said advertisement. The complainant visited the office of the OP sometime in April / May 1986 and she was told that one flat in Madipur Pocket-III had been allotted to her in the draw of lots and she would receive original demand-cum-allotment letter during the course of time. After waiting for almost a year, she wrote registered A/D letter dated 09.05.1987 to the OP in response to which she received copy of demand-cum-allotment letter No. A/c No. 137/(0078)/85/SFS/MP/II dated 22.05.86 from the office of OP sometimes in October, 1987 thereby she received a copy of demand-cum-allotment letter (not original) thereby confirming allotment of one flat in category II located at Madipur Pocket III to her at an estimated cost of Rs.2,28,700/- with permission to her to deposit a sum of Rs.44,362.05p after adjusting a sum of Rs.12,912.9p being amount of FDR of Rs.10,000/- and interest accrued thereon of Rs.2912.95p. She accordingly deposited a sum of Rs.44,362.05p vide receipt No. 93664 dated 28.10.1987. Subsequently sometime in November 1987, she received letter No. F(137) 85/SFS/MP/II dated 28.09.1987 from the OP intimating the complainant about delay in construction and the revision in payment schedule as mentioned in para-10 of the complaint (Ist, IInd, IIIrd, IVth installment as 01.10.87, 01.03.88, 01.08.88, 01.01.89 respectively). She received another letter dated 30.03.1988 on 01.06.1988 from the OP intimating her that alternate flat in Paschim Puri in lieu of earlier allocation of flat in Madipur Pocket III had been allotted to her and directed her to pay and deposit Rs.1,92,917.04p being 90% of the cost of the flat after adjusting Rs.12,912.96p towards the amount of FDR of Rs.10,000/- along with interest but the credit of Rs.44,362.05p deposited by her on 28.10.87 vide receipt no. 93664 was not given and stipulated that interest @12% per annum shall be charged for any delay upto one month and @ 18% per annum for further delay beyond one month. The said letter further stipulated that she would be liable to pay interest @ 10% per annum calculated on the basis of payment schedule stated in demand-cum-allotment letter dated 22.05.1986 but received by the complainant after vigorous follow up in October 1987, totally and completely disregarding the letter dated 28.9.1987 intimating the complainant about delay in construction and consequently rescheduling the payment installments. Her consent for change of allocation was not taken. She wrote a letter dated 05.06.2008 (sic) expressing her inability to make the down payment and offered to make payment as per the revised schedule intimating to her vide letter dated 28.09.1987 and she also pointed out about the payment of Rs. 44,362.05p deposited on 28.10.1987. She did not receive any reply from the OP and again wrote a registered letter to the concerned Assistant Director and Vice Chairman’s office. Inspite of number of personal visits to the office of the OP on several occasions and ultimately in response to her letter dated 29.05.1998 addressed to the Chief Vigilance Officer, she received a letter dated 21.05.1999 from the Assistant Director/ SFC of the OP directing her to furnish payment  proof of Rs. 1,92,917.04p. She replied to the said letter vide her letter dated 09.06.1999 enclosing therewith a copy of letter dated 30.4.1999 addressed to the then Vice Chairman of the OP. She received another letter dated 24.06.1999 from the Assistant Director/ SFS office of the OP in response to her letter dated 30.04.1999 addressed to the then Vice Chairman and was once again required to furnish the proof of deposit of Rs. 1,92,917.04p.  After making reference to subsequent correspondence made between the complainant and the OP’s officials and bureaucrats it is stated that she sent a legal notice dated 15.10.2006 through her advocate to OP through Commissioner  Housing detailing therein deficient services, unfair trade  practice and inter-alia asking the OP to give / hand over the possession of the flat to the complainant in terms of the allocation made to her by the OP and also to pay a sum of Rs.1,00,000/- towards damages and compensation for the mental agony suffered by her in last 20 years. On receipt of the service of legal notice, she received an allegedly predated letter dated 04.10.2006 from the OP in response to her letter dated 26.04.2006 and reminder letter dated 06.07.2006 and it was stated that the matter had been examined and the request of the complainant for alleged restoration of allocation had not been acceded to and she was required to submit the required documents for refund of registration money and other deposits. Reference has been made about the subsequent correspondence taken place between the parties. However, she did not get any relief. Hence, pleading deficiency in service on the part of the OP,  the complainant has filed the present complaint for issuing directions to the OP to handover the physical possession of the flat allocated to her; to pay a sum of Rs. 1,50,000/- [towards mental agony and torture and litigation cost and conveyance correspondence & postal cost of Rs.50,000/-].

In the written statement, OP has inter-alia stated that demand-cum-allocation letter in respect of flat No. 256, First Floor, pocket III, Madipur, New Delhi was issued to the allottee on 23.06.1986. It is denied that copy of the demand-cum-allocation letter and not the original one was sent to the complainant. It is submitted that due to the delay in construction of SFS flats at Madipur, the schedule of installments was revised; that the allocatees were pressing hard to adjust them in nearby areas; that accordingly, the complainant was allocated a category II SFS Flat in Paschim Puri in pocket III and the demand letter dated 17.05.1988 was issued to her to deposit an amount of Rs.1,92,917.04p after adjusting the FDR amount and interest thereon. The receipt of any correspondence/ letters from the complainant is denied. However, it is submitted that the complainant had written a letter to the VC in reply to which letters dated 21.05.1999 and 24.06.1999 were sent to the complainant asking her to give the proof of payment so that necessary action could be taken into the matter. It is stated that the reply to the letter dated 29.12.1999 of the complaint had been sent to her vide letter dated 24.03.2000 and further reminder was sent to her vide letter dated 11.09.2002 but no response was received from her. It is further submitted that a letter dated 25.04.2006 addressed to the VC was received by the OP. It is further stated that as the complainant failed to deposit the requisite amount within the stipulated period, hence the allocation stood cancelled automatically as per the terms and conditions of allocation letter. It is denied that the letter dated 24.08.2000 or any other letter intimating the complaint about the cancellation of the flat or any show cause notice was not received by her or that letter dated 24.03.2000 referred to in the letter dated 04.10.2006 is nothing but a fabricated one to build a story to cover up the lapses and save the skin of the official  of the OP or that there was no question or occasion to seek restoration of allocation or refund of money when neither any steps had been taken for cancellation of allocation nor the cancellation had  ever been communicated to the complainant. It is stated that finally due to nonpayment the allocation along with registration was cancelled and conveyed to her on 24.03.2000 and she was requested to surrender the original FDR and other connected papers for refund of her deposits. It is stated that reply to the legal notice was given on the basis of the record and policy of the OP. It is prayed that complaint be dismissed.

Complainant has filed rejoinder to the reply of OP and denied all the averments.

Complainant has filed her own affidavit in evidence. On the other hand, affidavit of Shri O.P. Gupta, Director Housing has been filed in evidence on behalf of the OP.

          Written arguments have been filed on behalf of the parties.

          We have heard the oral arguments on behalf of the parties and have also carefully gone through the record and the copies of judgments filed on behalf of the parties.

It is admitted fact that earlier the OP had issued demand-cum-allotment letter dated 23.06.86 to the complainant thereby allotting her flat No. 256, Mudipur Pocket-III, Category-II First Floor and she was required to pay Rs.44,362.05p on or before 22.06.86. The copy of the demand-cum-allotment letter is exhibit CW-3/22. The same was received by the complainant in October 1987. The complainant has filed a copy of draft receipt No. 93664 dated 28.10.87/ 20.11.87 to show that she had deposited the amount of Rs.44,362.05p. with the OP on that date. This document has not been specifically denied on behalf of the OP. Thus it stands proved on the record that in compliance of demand-cum-allotment letter (copy exhibit CW3/22) the complainant had deposited the said amount vide receipt (copy Ex. CW4/22).

Admittedly, vide letter dated 22.05.87 the complainant was intimated about the revision of the schedule of payment of installments on account of delay in start of construction of SFS flats at Madipur and first installment was to be paid on or before 01.10.87. It appears that the amount of Rs. 44,362.05p vide receipt copy of which is exhibit CW4/22 was infact deposited by the complainant with the OP after receipt of the revision of the payment plan.

Letter copy of which is Ex. CW6/22 proves that vide this letter dated 30.03.88/ 17.05.88 the OP had intimated the complainant that she had been allocated category II flat on first floor at Paschim Puri pocket GH/13 in lieu of previous allocation at Madipur pocket III under SFS Residential Scheme and she was required to deposit an amount of Rs.192917.04p in four installments as detailed therein after adjusting Rs.12,912.96p towards the amount deposited as registration money. There is evidence on the record to prove that vide letter dated 30.03.88 copy of which is exhibit CW7/22 the complainant had informed the OP about her inability to make down payment and also to give adjustment of Rs.44,362.05p already deposited by her with the OP. Exhibits CW8/22, CW9/22, CW10/22 and CW11/22 are copies of the letters written by the complainant to various officers of the OP though the receipt of such letters has been denied by the OP in a very vague and evasive manner. Copy of letter No. F136(228/88/SFS/PA/II/PT/1570 dated 21.05.94 (sic) written by the officer of the OP to the complainant with reference to her letter dated 29.05.1998 has been filed as exhibit CW12/22 whereby the complainant was asked to submit the payment proof of Rs.1,92,917.04p so that further necessary action could be taken in the matter. Vide letter dated 24.06.99, copy of which is exhibit CW14/22 written in response to the complainant’s letter dated 30.04.99, the OP reasserted for the submission of the payment proof of the above amount. Vide letter dated 01.12.1999, copy of which is exhibit CW15/22, the OP had asked the complainant to submit copy of receipt No. 93664 dated 28.10.87/ 20.11.87 showing the deposit of Rs.44362.05p. Here we would like to say at once that the OP’s officials do not feel interested in doing their work themselves and leave everything to be submitted or proved by the customers/ allottees etc. as it is clear from the letter dated 01.12.99 referred to above. Exhibits CW-16/22, CW-17/22 and CW18/22 are copies of the letters written by the complainant to various officers of the OP. Exhibit CW19/22 is the copy of the legal notice dated 15.10.2006 sent by the complainant to the OP receipt of which is not denied but in response to which the OP sent a reply dated 12.01.2007 copy of which is exhibit 21/22.

In para 10 of the legal notice, the complainant had mentioned about the payment of Rs.44362.05p. deposited by her on 28.10.87 vide receipt No. 93664 mention of which had not been made in the demand for directing her to deposit Rs. 1,92,917.04p. In the corresponding para of the reply dated 12.01.2007 OP denied the receipt of the payment of any such amount from the complainant. As stated hereinabove, the complainant has filed the copy of the receipt for the deposit of Rs.44362.05p. with the OP. Therefore, the averment made by the OP in reply to the legal notice was against the record.

Therefore, in our considered opinion, the limitation for filing the present complaint finally arose in favour of the complaint on receipt of the reply dated 12.01.2007 wherein the receipt of payment of Rs. 44362.05p. has been denied. No specific copy of cancellation letter of the allotment of flat in favour of the complainant has been filed on the record. However, copies of letter dated 11.09.2002 and another letter dated 24.03.000 have been filed on the record as exhibit RW1/7. The former letter dated 11.9.2002 on the subject “refund of registration money and other amount” was sent to the complainant in response to her letter dated 05.01.2000. She was asked to submit some documents mentioned therein. Therefore, no legal reliance can be placed on such a vaguely written letter. Vide letter dated 24.3.000 on the subject “refund of registration money and other amount” OP had informed to the complainant that the allocation made to her is cancelled alongwith registration and that the amount would be refunded to her after adjusting the penalty, if any, as per rules. She was also requested to surrender original FDR duly pre-receipted on revenue stamp and all other original papers.

Reason for cancellation of the flat has not been assigned in the said letter dated 24.3.000. Thus, it is also a quite vaguely written letter and rather throws pathetic light on the poor functioning of the officials/ officers of the OP. In any case, the cancellation of the allotment /flat allotted to the complainant has not been proved. As stated hereinabove, the cause of action for filing the complaint arose in favour of the complainant on receipt of reply dated 12.01.2007 to the legal notice dated 15.10.2006.

The present complaint has been filed on 28.09.2007. Therefore, in our considered opinion, the complaint has been filed within the period of limitation. Therefore, we hold that the judgments relied on behalf of the OP in this regard do not apply to the peculiar facts and circumstances of the present case.

At the same time, we hold that closure of the fifth Financing Scheme will also not affect the case of the complainant in the special facts and circumstances of the case when the officials of the OP have played a game of hide and seek with the complainant and also tried to keep her in the dark and never agreed to admit that infact an amount of Rs. 44,362.05p. had been deposited on behalf of the complainant on 28.10.87 vide receipt no. 93664.

Therefore, in our considered opinion, complainant has proved gross deficiency in service on the part of the OP.

In view of above discussion, we allow the complaint and direct the OP to issue fresh demand-cum-allotment letter in respect of a flat in the same category, of the same size  in the same area or nearby area to the complainant at the rates prevalent on 28.09.2007 (date of filing of the complaint) within 60 days from the date of receipt of copy of this order giving to the complainant option for payment of  the cost amount either in lump-sum without interest within the given time or in installments alongwith interest.

In that case complainant shall be at liberty to deposit the entire amount in lumpsum without interest within the given time positively or as per the installments to be determined by the OP along with appropriate interest strictly within the stipulated period. We also award an amount of Rs. 50,000/- to the complainant towards mental agony, inconvenience and also legal expenses.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 17.02.2018.