DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi-110016

Case No.14/2005

Nava Kairali C.G.H. Society Ltd.

Plot No.10, Sector-3,

Dwarka, New Delhi-110045                                        ….Complainant

Versus

Delhi Development Authority

Vikas  Sadan,

I.N.A.  New Delhi-110023                                          ….Opposite Party

                                                  Date of Institution      : 05.01.05        Date of Order                 : 22.08.17

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

The complainant society’s case, in brief, is that in pursuance of a circular dated 01.10.1990 issued by the OP DDA stating that the complainant society had been found to fall within the zone of consideration for allotment of land in Dwarka /Rohini and in case the society was interested in allotment of a land a sum of Rs.5,00,000/- be deposited between 01.10.90 to 23.10.90 as earnest money; that  though the said demand of Rs.5 lacs as earnest money was not within the parameter of the Delhi Development (Disposal of Developed Nazul Land) Rules, 1981 the complainant deposited the same on 10.10.90; that thereafter in pursuance of a demand letter dated 25.01.91 the complainant deposited a sum of Rs.23,15,625/- towards cost of land on 21.03.91; that the High Court vide order dated 01.05.1991  allowed CW 459/91  alongwith other petitions holding that “ the collection of the amount that were being collected was contrary to the manner of realization laid down under the rules and illegal” and hence quashed the same “ with the directions that a sum of Rs.5,00,000/- would be adjusted in future payment.” that a Division Bench of the High Court vide judgment reported as AIR 1991 Delhi 217 quashed the memorandum dated 20.01.90 in pursuance of which the list of societies for the purposes of allotment of land were prepared and that it was observed by the High Court that it was open to the DDA to refund the money to those who had paid the allotment money for the allotment of the land which had been quashed and the said decision was affirmed by the Apex Court vide judgment reported as AIR 1993 SC 155. It is stated that the members of the complainant society had deposited the amount with the complainant for being paid to the DDA after raising loans from their own sources and had paid interest on the said amounts in order to procure land and ultimately the members, despite the fact that they had paid higher rate of interest on the amount deposited by them, could neither get the land nor the refund of the money deposited with the OP and thus the OP had the benefit of using the huge amount of Rs.28,15,625/- for their own benefit and deprived the complainant society and its members for the use of their own money. It is stated that the OP re-allotted the land to the complainant and the above said amount was adjusted on 16.01.93; that as a consequence a sum of Rs.28,15,625/- had been used by the DDA w.e.f. 10.10.90 to 16.01.93 and the OP is liable to pay interest to the complainant society @ 18% p.a. at which rate the OP  has collected the penal interest on the delayed payment of the dues from the complainant society.  It is inter-alia stated that the society made repeated requests to the OP  to pay the interest  on the amount of Rs.28,15,625/- but to no effect and  the higher authorities refereed the matter to the OP for making enquiry as to why the interest was not being paid to the complainant; that the OP vide its reply through letter No. F-7 (150)90/GH/DDA/16598 dated 01.11.04 addressed to the Under Secretary to the Govt. of India, Ministry of Urban Development and Poverty Alleviation with copy to the complainant stated that  no interest was payable to the complainant on account of deposit of the earnest money on 10.10.90 and the amount deposited against the demand letter dated 25.01.91. According to the complainant, the OP has intentionally suppressed the true and material facts from the authorities which are available with the OP and the version of the OP in the letter is wholly incorrect, false and irrelevant and that this case may be an act of insubordination calling for strict disciplinary action against a person who has authored and signed the said letter dated 01.11.04. The details of the facts stated to be suppressed by the OP in the said letter are detailed in the complaint. It is submitted that the OP has made the payment of interest to a number of societies on the amount deposited by them in October, 1990 and March, 1991, as has been done by the complainant society in compliance with the order passed by the State Commission and (affirmed) by the National Commission and Supreme Court. It is stated that the complainant is entitled to the award of interest on the above stated amount. According to the complainant, the letter dated  01.11.2004 (Annexure-A) has given cause of action to the complainant for approaching this Forum for appropriate directions to the OP to pay the interest to the complainant as has been paid to the other societies about which no mention has been made by the OP in the letter. Hence, it is prayed that the OP be directed to pay interest @ 18% p.a. on a sum of Rs.5 lac w.e.f. 10.10.90 and on a sum of Rs.23,15,625/- w.e.f. 21.03.91 @ 18% p.a. which comes to Rs.9,21,442/- and to pay Rs.25,000/- for causing mental agony and torture to the officers of the complainant society and also to pay cost of litigation amount to Rs.10,000/-.

In the written statement the OP has inter-alia stated that the complaint is hopelessly barred by time U/s 24 of the Consumer Protection Act as the payment was made by the society in 1991-92 and the re-allotment of the land was made in 1993 and the complainant has filed the present complaint in the year 2005. It is stated as follows:-

“Brief facts of the case:-

In the year of 1990 about 400 societies were offered land in Dwarka/Narela and were asked to deposit Rs 5,00,000/ on  account of earnest money. The complainant society was one of them. The complainant was further requested vide letter dated 25.11.91 to deposit 25% of land premium subject to condition “That the proposed allotment shall be subject to final decision in CWP no: 3389/1990 and   various other Writ Petition pending in Delhi High Court and the proceedings pending before any court/forum challenging the criteria/bases/guide lines for allotment of land. If felt necessary, as a result of the decision therein, the allotment is liable to be reviewed and cancelled. In that event,  the entire amount received by the DDA from the society shall be refunded without any interest and society shall  have no right or claim for any compensation /damages/alternative allotment on any ground what so ever” (emphasis given by us).

That the allotment of land could not be made to the complainant society as the Hon’ble High Court of Delhi  had quashed all the allotment vide order dated 10.05.92 in CWP no: 2885/1990 and directed the Registrar Co-operative Society office  to prepare fresh seniority list. Hon’ble Supreme Court vide order dated 17.09.92 had upheld the orders of Hon’ble High Court.

In view of the orders of Hon’ble Supreme Court, a fresh seniority list was prepared by the Registrar Co-operative Society office and on the basis of the seniority, the society bearing registration no: 582 to 857 were offered land in November 1992. the complainant society was one of these societies having registration no: 665. After that the federation of CGHS had filed another Writ Petition no: 4184 in 1992 for the payment of interest on the amount so, deposited by the societies in the year 1990 & 1991.  The Hon’ble High Court in its decision passed on 31.3.93 held that in the allotment letter in clause-6 itself it was stated that on the allotment being cancelled no interest would be payable. Therefore, there can be no claim of interest by the societies with effect from the date of their deposits. Further, moreover the High Court contemplated interest not being awarded to those societies who were re-allotted land.

That some of the Co-operative societies had written to the DDA for refund of money. That the Supreme Court has held that “ It would be unfair and DDA would not be  entitled to take benefit of the aforesaid clause-6 and escape the liability to pay interest when a demand for refund on the money is specifically made on it by a Co-operative Group Housing Society. In such a case, in our opinion the DDA would be liable to pay interest @ 12% per annum, which was awarded by the Supreme Court in Sriniketan C-operative  societies a case (supra) w.e.f.  the date the notice of demand was  served on the DDA till the date of payment”. This payment of interest was made only be those societies to whom no re-allotment of land had been made.

 Since the Complainant society has been re-allotted land, plot on the Basis of draw of lots on 22.2.93 that is before the date of decision of Hon’ble high Court i.e. 31.3.93 Hence, the claim of the society for payment of interest is not proper and justified in view of the judgment of Hon’ble High Court as aforesaid as well as the clause No-6 of the letter 25.1.1991.”

It is further stated that the complainant has never  applied for refund as  the society was in queue of allotment of land and that the complainant  has been re-allotted the land on 03.11.92. It is stated that there was no restriction imposed by the OP on the complainant society to apply for refund of its deposit but as the society did not desire to apply for refund, no refund was made and that as per the Supreme Court order no interest was to be made to the societies who were re-allotted land. Letter dated 01.11.04 is admitted.  It is, however, stated that the interest was paid only to those societies to whom the re-allotment of land was not made upto to the date of judgment by the High Court on 31.03.93 in CWP No.4184/92. Denying deficiency in service on its part, OP has prayed for dismissal of the complaint.

Complainant has filed a rejoinder and stated that it is a settled principle of law that the limitation starts from the date when the claim is refuted by the OP. 

Affidavit   of Sh. R. K. Panaickar, President of the complainant society has been filed in evidence.  He has reiterated the averments made in the complaint. On the other hand, affidavit of Sh.  B. S. Jaglan, Director (RL) has been filed in evidence on behalf of the OP.

Written arguments have been filed on behalf of the parties.

We have heard the arguments on behalf of the parties and have also gone through the file very carefully.

First, we deal with the question whether the complaint is time barred.  As stated hereinabove, the letter dated 01.11.04 is admitted by the OP.  The complainant has filed the present complaint on the basis of the said letter. Therefore, we hold that the complaint is not time barred.

Copy of letter No. F-7 (150)90/GH/DDA/16598 dated 01.11.04 has been placed on the record though not marked as Annexure A. Now, we mark it as Mark A for the purposes of identification.  The said letter has been addressed on behalf of the OP to the Under Secretary to the Govt. of India, Ministry of Urban Development and Poverty Alleviation with copy to the complainant.  The relevant portion of this letter reads as under:-

...This is with reference to your letter No.3/DDR/VIP/2004-DD-II-A dt. 08.01.2004 vide which a complaint of the Nava Kairali CGHS Ltd.,  has been forwarded regarding payment of interest on the amount deposited an account of cost land. In this connection the matter has been examined and it has been found that the interest is not refundable to the society. Initially the society deposited earnest money for Rs.5.00 Lacs on 10.10.1990. Later a Demand-cum- Offer letter was issued to the society  on 25.01.1991 for allotment of land and to deposit an amount of Rs.23,15,625/-  in addition to the earnest money. The offer letter was issued subject to final decision in CWP No.3389 of 1990 and various other writ petitions pending in Delhi High Court and the proceedings pending before any other courts/forum- Challenging the criteria/basis/guide lines for allotment of land and it felt necessary, as a result of the decision therein the allotment  was liable to be reviewed and cancelled and in that event the amount received by the DDA was to be refunded without any interest and the Society had no right for claim for any compensation/damages/alternative allotment on any ground whatsoever.

          After decision in the matter the allotment of land was reviewed accordingly and fresh letter was issued to society on the prevailing P.D.R. 3.11.1992 after adjustment of the amount including earnest money deposited earlier. Since the demand issued on 25.01.1991 was subject to the out come of CWP No.3389/90 and there was a clear term that no interest/claim for any compensation damages/alternative allotment on any ground whatsoever will be payable to the society, therefore no interest is payable to the society on account of deposit of earnest money on 10.10.1990 and amount deposit against the Demand letter 25.01.91.”

The judgment in UT Chandigarh Administration Vs. Amarjeet Singh 2009 CTJ 486 (Supreme Court) (CP) cited on behalf of the complainant does not deal with the question with regard to the award of interest on any such amount by the OP DDA.  The judgment in Delhi Development Authority Vs. Parabasee Co-operative Group Housing Society Ltd. III (2007) CPJ 111 (NC) and Holtec Coop. Group Housing Society Ltd. Vs. Delhi Development Authority CC No. 324/02 decided by the Delhi State Commission on 04.05.017 cited on behalf of the complainant are relevant to the facts of the present case and we shall deal it hereinafter. On the other hand, OP has placed reliance on a judgment rendered by the National Commission in Universal Brotherhood Co-operative Group Housing Society Vs. DDA I (2013) CPJ 379 (NC).

In Parabasee’s case (supra) the society had earlier applied for allotment of land for housing purpose but since they were not allowed land in terms of the order of Hon’ble High Court they sought the refund of money which was deposited by them alongwith interest  @12% per annum for the period from the date on which the society asked for refund till the date of refund.  There was condition No.6 in the allotment letter. The said condition is in pari-materia with the same condition written in the Allotment Letter issued by the OP to the complainant and which has been reproduced in the written statement and has been reproduced above by us in italics.  Therefore, it was held that in case the societies were not allotted land then they would be entitled to interest w.e.f. the date of notice of demand served on the DDA till the date of the payment.

 In the present case, admittedly the complainant did not write any letter to the OP for refund of amount of Rs.28,15,625/- to the complainant at any stage and got the land re-allotted and only thereafter filed the present complaint by making the letter dated 01.11.04 the basis of accrual of cause of action.  Therefore, in our considered opinion, the said judgment is of no help to the complainant.

In the case of Universal Brotherhood Co-operative Group Housing Society (supra) it has been held that where the society had been re-allotted the land at the original rate the society was not entitled to the payment of interest.  Here, it is not the case of the complainant that the complainant society had been re-allotted the land not at the original rate but on enhanced rate. Therefore, as has been held in the above noted case, the OP is not liable to pay interest.

 In the case of Holtec Coop. Group Housing Society Ltd. (supra) it appears that the High Court vide order dated 10.05.91 had quashed the allotment of land to the complainant society therein amongst other societies with further direction to the OP DDA to refund the money to all societies including to the complainant and thus the grievance of the complainant society was that the OP had not refunded the interest on the amount paid by the complainant.  In the present case, it is not the case of the complainant that while cancelling the allotment of land to the societies including complainant society the OP had been directed to refund the amount of Rs.28,15,625/-. The complainant afterwards got the land re-allotted on 03.11.92.  Therefore, the said judgment does not apply to the facts of the present case. 

Therefore, we hold that the law laid down in Universal Brotherhood Co-operative Group Housing Society squarely applies to the facts of the present case and, hence, the complainant is not entitled to any interest. 

In our considered opinion, this Forum has also no pecuniary jurisdiction to entertain the complaint since the interest has been claimed on the amount of Rs.28,15,625/- and this amount should be the amount for considering the pecuniary jurisdiction of this Forum. 

In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.

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 22.08.17.