DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi-110016

Case No.93/2008

Smt. Meera Singh

C/o Mr. S. P. Singh

R/o F-47, Subh Enclave,

H-4/5, West Zone, Pitampura,

New Delhi-110088                                                       ….Complainant

Versus

Delhi Development Authority

Housing/MIG/NP, 2^nd Floor,          D-Block,

Through its Vice-Chairman

Vikas Sadan, INA Market,

New Delhi                                                                   ….Opposite Party

                                                  Date of Institution      :    2008            Date of Order             :   26.04.18

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

In the present complaint filed for issuing directions to the OP  to immediately hand over the legal possession of the property i.e. House No.138, Ground Floor, Sector-23, Pocket-I, Dwarka, Delhi allotted to the complainant,  to settle the balance amount to be paid by either of the contracting parties as per the Hire Purchase Agreement, to settle the interest amount which had accrued on the blocked money which the complainant  had paid till date and/or to pass any other appropriate order. Case of the complainant  is that the complainant  had entered into a Hire Purchase Agreement with the OP to purchase/acquire MIG flat (ground floor) in the Dwarka locality at the disposal cost of Rs.6,50,000/- as per the DDA’s Scheme termed as “ AAY -89” (marked Ex. CW-1/A); that as per the Hire Purchase Agreement the complainant paid to the OP the total amount of Rs.4,76,000/- till date as per the following details:

Payment Details

According to the complainant, the main cause of the dispute is non- handing over the  legal possession of the allotted house i.e. the above stated flat as proposed in the Hire Purchase Agreement  Ex. CW1/A.  It is stated that the complainant has paid more than fifty percent of the disposal cost and still the legal possession has not been given to her (though according to the assurance given to this Forum she is even prepared to pay the balance amount  provided the OP is prepared to hand over the legal possession to her).  It is stated that the OP has failed to perform its part of the contract which amount to deficiency in service as per section 2 (1) (g) of the Consumer Protection Act, 1986  (in short, ‘the Act’); that the OP made a false and misleading representation to the complainant  that the legal possession of the aforesaid house would be made to the complainant  in the earliest due course but the same is not made available which amounts to false and misleading representation under section 2 (i) (r) of the Act.  It is stated that due legal notice dated 08.10.07 was served upon the OP but to no effect. Hence, this complaint with the above stated prayers.

In the written statement it is denied that Hire Purchase Agreement took place between the complainant and the OP.  It is stated as follows:-

“3      ….. it is submitted that the complainant applied under the ‘Ambedkar Awas Yojna’ under SC/ST category.  That the complainant was allotted a flat in Dwarka and a demand cum allotment letter was issued to the complainant in block dates of 1-11-96 – 09-11.96. The allotment was made on hire purchase basis. The complainant was required to pay the amount in terms of the demand cum allotment letter, failing which there was automatic cancellation. Copy of the demand cum allotment has not been filed by the complainant. As per the terms and conditions of demand letter the allottee had to deposit Rs.298065.13 upto 9-12-96 and Rs.305516.75 if paid upto 07-02-97. The complainant also had  to pay 180 installments of Rs.5940.86 commencing from 10-01-97.”

4.      … it is submitted that the payments were made by the complainant in piece meals and at her own convenience. The last date to pay initial deposit was 07-02-97 where as the complainant delayed the initial payment by 333 days. Further the complainant also failed to pay the demanded amount as per the schedule contained in the demand cum allotment letter. That further the complainant failed to deposit the third copy of challans of  the payment made by her as per the terms and conditions of demand cum allotment letter. The show-cause notice was sent to the complainant on 14-03-97 as to why her allotment be not cancelled as she failed to comply the terms and conditions of  allotment.  The cancellation letter was sent to the allottee on 05-06-97. After receiving the cancellation letter complainant submitted some of the challans along with details of payment vide letter dt. 17-06-97. Photocopies of all the challans were received only on 18-01-99. After verification the complainant was requested to make the full payment of initial deposit vide letter dt. 05-02-99. The document were submitted by the allottee/complainant only on 21-12-00. As there was a delay in payment and submission of documents for 1414 days from the stipulated period the case was put up to the competent authority for regularization. The   delay was regularized and the complainant was asked to deposit a sum of Rs.863/- towards interest and restoration charges vide letters dt. 05-04-2002, 14-05-02, 18.06.02. The complainant deposited Rs.1000/- on 26-07-02. Since the complainant failed to pay the monthly installment, therefore, DDA vide letter dated 30.06.03 requested the complainant to deposit monthly installment up-to-date. The complainant vide letter dated 06.04.06 requested the opposite party to intimate the number of pending monthly installments. Accordingly, DDA vide letter dated 24.07.06 intimated to deposit remaining 113 monthly installments due  upto 10.05.06 and the interest thereon would be calculated as and when the amount of monthly installment is deposited.  The complainant deposited a lump sum amount of Rs.1,50,000/- vide Challan no: 52015 dated 18.10.06. Thereafter, DDA vide letter dated 06.03.2007 requested the complainant to deposit a sum of Rs.6,18,064/- on account of monthly installments and interest thereon. However, instead of depositing this outstanding amount, the complainant has filed the present complaint.”    

It is submitted that the delay has been caused by the complainant  herself by not complying the terms and conditions of the demand-cum-allotment letter. It is prayed that the complaint be dismissed.

In the rejoinder, the complainant has stated that despite making payment of Rs.4,76,000/- the legal possession was not handed over to her. It is stated that Hire Purchase Agreement had been made in the name of Smt. Meer Singh and the complainant has also been filed by Smt. Meera Singh. It is further stated as under:

“4.     …All the installments were paid as per the installment schedule laid down by DDA. At no stage the complainant has refused to pay any installment. But the compliance can not be one sided. If the DDA has received Rs.4,76,000/- (Rupees  four lac seventy six thousand) it was the duty of the respondent DDA to hand over the legal possession and to create confidence in the mind of the allottee complainant. But this has unfortunately not been done by the respondent….”

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

On 11.04.14, the complainant stated before this Forum that she had deposited the demanded amount prior to 07.02.97/cancellation of her flat on 27.05.97. She also filed some documents alongwith the affidavit. She was directed to consolidate all the documents and to give the complete details of the amount paid by her to the OP. At the same time, the OP was also directed to furnish its details of payment received.  Thereafter, vide order dated 30.04.15 the complainant was directed to comply with the directions contained in the order dated 11.04.14, if the same were not already complied with. On 24.09.15, the complainant stated that she had made the payment of Rs.4,76,000/- to the OP and she also filed the copy of the calculation sheet by making her own endorsement.  The OP filed the reply to the calculation sheet of the complainant on 14.12.17.

According to the submission made on behalf of the complainant on 20.09.17, the original cost of the flat has been shown in the copy of demand-cum-allotment letter Ex. CW-1/A.

Written arguments have been filed on behalf of the parties.

We have heard the oral arguments advanced at the bar on behalf of the parties and have also carefully gone through the file.

Ex. CW-1/A is the copy of the demand-cum-allotment letter of the block date 01.11.96-9.11.96 vide which the complainant  Smt. Meera Singh had been allotted flat No.138 (ground floor), Sector-23, Pocket-I, Dwarka  in the draw held on 07.08.96 and  the total disposal cost was shown as Rs.6,50,000/-. Confirmation deposit of Rs.20,000/- was to be made by the complainant  by 09.12.96 and the amount of Rs.2,98,065.13p was to be paid between 10.11.96 - 9.12.96. Thereafter, an amount of Rs.299555.45p was to be paid by the complainant between 10.12.96 - 24.12.96, Rs.301045.78p between 25.12.96 - 08.1.97, Rs.303281.26p between 09.01.97 to 23.01.97 and Rs.305516.75p between 24.01.97 -07.02.97. It was also stipulated that if the said amount was not paid within 90 days till 07.02.97 the complainant  could pay the same in 120 monthly installments of Rs.5940.86p commencing from 10.01.97 till 01.01.99 and the ground rent payable after expiry of two years was to be Rs.4685/-.  Thus, the complainant had been given two options to pay the disposal cost of the said flat. Admittedly, the complainant did not pay the amount of Rs.6,50,000/- till 07.02.97 or till 01.01.99 as stipulated in the demand-cum-allotment letter.

Ex.CW1/B is the copy of challan dated 05.12.96 whereby the complainant deposited Rs.20,000/- (as confirmation deposit) within time.  Thereafter, she deposited Rs.75,000/-, Rs.1,15,000/, Rs.100000/-, and Rs.16000/- on 20.12.96, 20.12.96,  17.12.97, 05.01.98 respectively vide receipts copies of which are Ex. CW1/C, Ex. CW1/D, Ex. CW1/E and Ex. CW1/F respectively. The complainant has also filed the copy of receipt dated 18.10.06 as Ex.CW1/G whereby she deposited Rs.1,50,000/- on that day by means of a bank draft dated 12.10.06.  Thus, she deposited a total amount of Rs.4,76,000/- till 05.01.98 and, hence, did not deposit the amount in monthly installments of Rs.5940.86p. Thus, the version made by the complainant on 11.04.14 that she had deposited the demanded amount prior to 07.02.97/cancellation of the flat on 27.05.97 is patently wrong and is against the record.

Ex. RW1/2 is the copy of notice dated 14.03.97 whereby the complainant  had been asked to show cause as to why the allotment of the above stated flat should not be cancelled on account of non-deposit of the amount in time. Vide letter No. 41 (419)96/DW/MIG/AY dated 05.06.97 copy of which is Ex. RW 1/3 the allotment of the above stated flat had been cancelled for non- compliance of the terms and conditions of the demand-cum- allotment letter dated 01.11.96 - 9.11.96. There is no dispute so far as the cancellation of the flat and communication regarding the same to the complainant are concerned. 

Case of the complainant, on the other hand as stated on 11.04.14, is that she had deposited the demanded amount prior to 07.02.97/cancellation of her flat on 27.05.97.  It is crystal clear and stand proved on the record that the complainant infact did not make the payment of the installments in time and she had deposited the amount in lumpsum as detailed hereinabove as per her own will and volition.

In this regard the case of the complainant as argued at the bar is that the monthly installments had to start after handing over the possession of the flat in pursuance of the Hire Purchase Scheme. She has stated that they will start making the payment of the remaining amount after the possession of the flat is handed over to them and that the cancellation of the allotment is not proper. We do not agree with her. There is no such stipulation that the installments of the disposal cost were to be started after the handing over the possession of the above stated flat to the complainant. As stated hereinabove, in compliance with the demand-cum-allotment letter copy of which is Ex. CW1/A, the complainant had been given two options i.e. (1) to deposit the amount in installments till 07.02.97 and (2) to make the payment in 120 monthly installments of Rs.5940.86p each commencing from 10.01.97 till 01.01.99 with ground rent of Rs.4685/- after expiry of two years. Thus, nowhere in the said demand-cum-allotment letter it has been mentioned that the payment of the installment was to commence after handing over the possession of the flat. 

Clause 14 of the Scheme (copy Ex.CW1/H) inter-alia provides that the allottee shall be entitled to take the delivery of the possession only after he has completed all the formalities, paid all dues and furnished/executed all the documents as required in the allotment cum-demand letter or the Delhi Development Authority (Management and Disposal of Housing Estates) Regulations 1968, as the case may be. Thus, from the said document relied by the complainant herself she was entitled to take the delivery of the possession of the allotted flat only after the payment of all dues as required in the demand-cum-allotment letter copy of which is Ex. CW1/A.  Therefore, we do not agree with the submission made on behalf of the complainant that the installment had to be commenced only after handing over the possession of the flat allotted to the complainant.

 We have not been able to understand the meaning of the term “legal possession” as used in the complaint.  Let the things remain as they are.

According to the OP’s witness, photocopies of all the challans were received from the complainant  only on 18.01.99 and after verification the complainant was requested to make the full payment of initial payment vide letter dated 05.02.99 (Annexure-5 = Ex. RW-1/6).  He has further deposed that the documents were submitted by the complainant/ allottee only on 21.12.2000 (Copy Ex. RW/7). The OP’s witness has further deposed that there was a delay in payment and submission of the documents “for” 1414 days from the stipulated period and the case was put up before the competent authority for regularization and that the delay was regularized and the complainant was asked  to deposit a sum of Rs.863/- towards interest and restoration charges vide letters dated 05.04.02, 14.05.02, 18.06.02 [(copies Ex. RW1/7 (Colly)]. According to him,  the complainant  deposited Rs.1000/- on 26.07.02 and since the complainant  failed to pay the monthly installments, therefore the OP vide letter dated 30.06.03 [(Ex. RW1/8 (colly)] requested the complainant to deposit the monthly installments uptodate. According to him, the complainant vide letter dated 06.04.06 requested the OP to intimate the number of pending monthly installments and accordingly the OP vide letter dated 24.07.06 intimated her to deposit the remaining 113 installments due upto 10.05.06 and it was informed to her that the interest thereon would be calculated as and when the amount of monthly installment is deposited. He has further deposed that the complainant  deposited a lumpsum Rs.150,000/- vide challan No. 52015 dated 18.10.06 and thereafter vide letter dated 06.03.07 the OP requested the complainant  to deposit a sum of Rs.6,18,064/- on account of monthly installments and interest thereon but, however, instead of depositing the outstanding amount the complainant  has filed the present complaint. 

Complainant has not filed contrary evidence or document to rebut the above stated averments made in the affidavit of the OP’s witness.

 On the other hand, she has herself filed the copy of the 2^nd reminder received from the OP whereby she had deposited Rs.863/- on account of interest and restoration charges.  She has filed the copy of 4^th challan No.50028 as Annexure -8. She deposited Rs.1000/- towards restoration charges with interest. Annexure R-11 is copy of letter M41996/DW/AY 456 dated 06.03.07 whereby  the OP had asked the complainant with reference to her letter dated 18.10.06 to deposit a sum of Rs.618064/- on account of monthly installment and interest thereon and submit the 3^rd copy of bank challan to the office of the DDA for taking further action.

 Is the complainant entitled to take benefit of her own continuous and intentional wrongs? She continuously failed and neglected to deposit the monthly installments in time and was taking the matter as if she had a legal right to deposit the installments of the flat allotted to her according to her own will and volition.  In our opinion,  this cannot be allowed to be done.     

The counsel for OP has relied on a decision of the Hon'ble Supreme Court in U.T. Chandigarh Administration Vs. Amarjeet Singh, Civil Appeal No. 1994/2006, decided on 17.03.09 to contend that since the present case pertains to Hire Purchase Agreement and allotment of the flat in pursuance to that Agreement, the present case is covered by the law laid down in the said case. To this, the written submission made on behalf of the complainant on 18.04.18 is that the said judgment does not apply to the facts of the present case.  We agree with the submission made on behalf of the complainant that the said judgment is not applicable to the facts of the present case.

In that case the auction was for grant of a lease of sites for 99 years and the auction was governed by the provisions of the Capital of Punjab (Development and Regulation) Act, 1952 and Chandigarh Leasehold Sites and Building Rules, 1973. The terms of the auction were entirely different. Successful bidder was required to complete the construction of the building of the plot within 3 years from the date of auction.  It was held that the act of leasing the plots was auction by the U.T. Chandigarh,  Administration did not result in the successful bidder becoming a “consumer” or the Administration becoming “service provider”.  It was held that in the absence of hiring or availing of any service, the question of deficiency in service or unfair restrictive trade practice with reference to a service, did not arise as the complaint under the Consumer Protection Act was not maintainable.

In the present case, inspite there being Hire Purchase Agreement in question between the parties the OP had issued the demand-cum-allotment letter in respect of the constructed flat to the complainant and had been asked to make the payment of  the disposal cost in the manner prescribed in the demand-cum-allotment letter as already discussed hereinabove. Therefore, in our considered opinion, the facts of the present complaint are entirely different from the facts of the case relied on by the counsel for the OP.

However, as held hereinabove it was the complainant who herself was responsible for making the delayed payment of the installments and, hence, she was/is not entitled to take benefits of her own continuous and intentional wrongs and, therefore, we hold that the complainant now cannot plead any deficiency in service or unfair trade practice on the part of the OP.  Hence, we hold that the complainant has failed to prove any deficiency in service on the part of the OP.

In view of the above discussion, we do not find any merit in the complaint and accordingly we dismiss the complaint 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 26.04.2018.