DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.802/2009
Smt. Shyam Bala Bansal (since deceased)
through her LRs
1. Sh. Anand Kumar Bansal
S/o Late Sh. S.M. Bansal
2. Sh. Deepak Bansal
3. Sh. Neeraj Bansal
All R/o
B-33, Gulab Bagh,
Matiala Road, Uttam Nagar,
New Delhi-110059
4. Smt. Arti Aggarwal
W/o Sh. Ajay Aggarwal
R/o 36-A, Indira Vihar,
Mukherjee Nagar, Delhi ….Complainants
Versus
1. Delhi Development Authority
Through its Chairman
2. Delhi Development Authority
Through its Director
Both are at:-
D-Block, Vikas Sadan,
Behind INA Market,
New Delhi ….Opposite Parties
Date of Institution : 05.11.09 Date of Order : 02.04.18
Coram:
Sh. N.K. Goel, President
Ms. Naina Bakshi, Member
ORDER
Smt. Shyam Bala Bansal filed the present complaint against the OP on 05.11.09. During the pendency of the complaint, she died and her LRs have been brought on the record vide order dated 15.10.15. However, for the purpose of this complaint the word “Complainant” wherever does it appear shall mean the “original Complainant”.
Aggrieved by non-handing over the peaceful possession of the house No.117, Type B, Bindapur, Dwarka, New Delhi despite making the payment by the OP the Complainant has filed the present complaint. As per the averments made in the complaint, in response to an advertisement given by the OP in respect of its Scheme for expandable Houses under EHS (Expandable Housing Scheme) in the year 1996 the Complainant applied and she was declared successful in the draw held on 21.03.97 and a type B House No.117 in Block D, Bindapur, New Delhi was allotted to her. The OP issued demand letter dated 30.05.97-16-06-97 for payment of Rs.20,000/- as confirmation deposit by 16.07.97 vide file No.502(972)97/EHS/DW and the complainant accordingly deposited Rs.20,000/- on 15.07.97; that the complainant was to deposit Rs.273433.41p between 30.10.97 and 13.11.97 as per the demand letter; that since the complainant had availed the installment option, the complainant deposited Rs.15000/- vide receipt No. 22364 dated 10.10.96, Rs.20,000/- on 15.07.97 vide receipt No. 006774 as confirmation amount, Rs.50,000/- and Rs.2,08,433/- vide receipt No.008799 dated 13.11.97 totalling to Rs.2,93,433/-; that the total cost of the allotted house was Rs.5,66,200/- and 50% i.e. Rs.2,83,100/- was to be deposited by her to take over the possession of the allotted house out of which she had deposited Rs.2,93,433/- by 13.11.97; that as per installment condition, the complainant deposited Rs.41,706/- vide receipt No.008804 dated 12.12.97 as first installment within time. She also submitted all relevant documents for the possession of the said house on 05.02.98 vide acknowledgement No.640. It is stated that despite doing all these the OP did not handover the peaceful possession of the said house and the complainant received a letter dated 12.02.98 from the OP to the effect that the complainant had not made the deposit of Rs.20,000/- as well as 50% payment and not furnished the documents as required in allotment-cum-demand letter. As per averments made in the complaint, thereafter the complainant made visits to the office of the OP and wrote letters but to no effect. Complainant received a letter No.I-502 (972)97/EHS/B dated 23.09.99 from Asstt. Director, EHS showing deposit Rs.5000/- on account of short payment without giving any details of the same and the complainant in reply clearly mentioned that she had already deposited Rs.3,35,139/- till 13.12.07 in excess of 50% amount of Rs.2,83,100/- to get the possession but, however, having been left with no other option she deposited Rs.5000/- through DD No. 005547 dated 03.12.99 vide challan No. 008805 of the Central Bank of India with the OP. Thereafter, the complainant received letter No.502(972)97/EHS/DW/328 dated 28.01.15 directing her to deposit Rs.5000/- and to submit 3rd copy of challan in response to which she vide her letter dated 21.03.05 informed the OP that the amount of Rs.5000/- had already been deposited and further she submitted the photocopies of challans for a sum of Rs.3,40,139/- with the OP but in vain. She again received letter No. 502(972)97/EHS/DW/1192 dated 15/06 directing her to deposit the entire 9 balance installments alongwith interest and only then action would be taken. The Complainant requested the OP vide her letter dated 02.03.06 to give the calculation of the balance amount of installments alongwith interest and other dues, if any, but she did not receive any reply. She, however, deposited lumpsum amount of Rs.3,76,000/- against 9 balance installments of Rs.41,706/- each which came to Rs.3,75,354/- through challan No. 011239 dated 30.11.06 and the copy of the same was submitted with the OP through letter dated 17.12.06 which was acknowledged by the OP vide receipt No.RCE/h/07/26,168 dated 17.05.07. The complainant thus deposited Rs.7,16,139/- against the total cost of Rs.5,66,200/- with the hope of taking the possession of the house but in vain. She made frequent visits to the office of the OP. Her husband suffered a heart attack and after recovery her husband saw “Penalty Relief Scheme 2007” in the newspaper showing as last opportunity opened during 01.07.07 to 31.12.07 and the complainant decided to avail this Scheme under protest because she did not want to miss the opportunity from availing the possession of the house. As specified in form No.1 of the said Scheme the complainant paid Rs.3,10,000/- with form No. 105560 alongwith challan deposited in Central Bank of India, Vikas Sadan vide DD No.277265 dated 26.12.07 in favour of DDA vide receipt No.REC/H/07/57,203 dated 27.12.07 and, thus, the complainant deposited Rs.10,26,139/- against the total cost of Rs.5,66,200/- with the OP but still she did not receive the peaceful possession of the said house. She served a legal/ demand notice dated 09.09.09 through her counsel to the OP which was served on 14.09.09 through registered AD and UPC duly received by the OP but the OP neither sent any reply nor did handover the possession of the house. Hence, pleading deficiency in service on the part of the OP, the complainant has filed the present complaint for issuing following directions to the OP:-
“ a. Direct the Opposite Party to handover the peaceful possession of the house No.117, Type B situated at Block D, Bindapur, Dwarka, New Delhi at the earliest;
b. Direct the O.P. to refund the excess amount of Rs.4,59,939/- paid by the complainant on various occasions alongwith interest @ 18% p.a. from the respective date of their deposits till its realization;
c. Direct the Opposite Party to pay damages/compensation to the complainant for a sum of Rs.4,00,000/- for the harassment, mental agony etc. caused to the complainant;
d. Direct the Opposite Party to pay further sum of Rs.25,000/- towards the legal cost and expenses.
In the written statement OP has inter-alia pleaded that the complaint is time barred under section 24A of the Consumer Protection Act; that the complainant is not a ‘Consumer’ as defined under the Consumer Protection Act. It is stated that the complainant had to pay Rs.20,000/- towards confirmation amount upto 16.07.97 and to pay the further amounts as described in the written statement. However, the complainant for the first time intimated the OP on 05.02.98 vide letter dated 08.01.98 that she had paid the amount of Rs.2,93,433/- and deposited the 3rd copy of the challan for the said amount. It is stated that the balance /initial amount of Rs.2,73,433.41p was to be deposited by her upto 13.11.97 but she deposited only an amount of Rs.2,58,433/- on 13.11.97 i.e. less Rs.15,000. It is stated as follows:-
“… From the above facts it is clear that the complainant has to pay Rs.15000/- as Registration money + Rs.20,000/- as confirmation amount + Rs.2,73,433.41/- as balance/initial deposit upto 13.11.97 { Total:- 3,08,433.41/-} but the complainant has paid only a sum of Rs.2,93,433/- upto 13.11.97 i.e. deficient of Rs.15,000/-. Further the complainant has to pay the ten installments as mentioned in the demand cum allotment letter as follows:
1) Rs.41,706.41/- (13.12.97)
2) Rs.41,706.41/- (11.06.98)
3) Rs.41,706.41/- (08.12.98)
4) Rs.41,706.41/- (06.06.99)
5) Rs.41,706.41/- (03.12.99)
6) Rs.41,706.41/- (31.05.00)
7) Rs.41,706.41/- (27.11.04)
8) Rs.41,706.41/- (26.05.01)
9) Rs.41,706.41/- (22.11.01 )
10) Rs.41,706.41/- (21.05.02)
The complainant had further intimated the DDA for the first time on 13.1.98 vide letter dated 8.1.98 that he has paid the amount of Rs.41706/- towards first installment and deposited the third copy of challan of first installment. The first installment amount cannot be taken into consideration by DDA under any other head than the first installment head until and unless the complainant give in writing that the said installment amount is to be considered for interest alongwith balance/initial amount. As per policy of DDA after the commencement of the installments the interest alongwith due installments has to be paid upto date at the time of giving the possession letter. Moreover the DDA has sent the reply dated 12.2.98 to the complainant that he has not made the payment of 50% payment and not furnished the documents as required under clause-4 of the demand cum allotment letter. The complainant was further requested in the said letter to deposit the said amount alongwith restoration charges and interest thereon and also explain the reason. It was further written in the said letter that if already deposited copy of the same may also be furnished alongwith remaining documents immediately. Moreover, installments were not paid by the complainant within the stipulated period as per terms and conditions of DAL. It is submitted that the complainant had deposited Rs.15,000/- less amount and she had never intimated the DDA regarding payment under Penalty Relief Scheme-2007. The complainant has never applied/given application to DDA under the penalty relief scheme. Since the case of the complainant was not covered under PRS-2007, therefore, the possession letter was not issued to her due to non-payment of the initial deposit and half yearly installments as per schedule mentioned in the demand-cum-allotment letter dated 30.5.97-16.6.97 alongwith interest. The complainant has not complied with the terms and conditions of the DAL within the stipulated time period. The complainant has not visited the DDA office on 28.2.98 and the official of the DDA never assured the complainant. As per calculation sheet attached it was clarified how the initial deposit of Rs.2,62,916.75/- (16.7.97 to 15.8.97) was calculated as per DAL.”
It is stated that later on she deposited only an amount of Rs.5000/- out of Rs.15,000/- short by Rs.10,000/- and she deposited Rs.3,76,000/- collectively towards 9 outstanding installments with a delay of 8 years 5 months and 20 days and, hence, the possession letter of the flat in question could not be issued to her. It is stated that the legal notice was replied by the OP vide letter dated 17.12.09. It is stated that the complainant is herself faulty towards payment of the demanded amount against the flat allotted to her. It is prayed that the complaint be dismissed.
In the rejoinder, it is inter-alia stated that the OP did not issue any demand letter of Rs.15,000/- till date which was less paid by the complainant as alleged by the OP; that the complainant made a written representation letter dated 21.03.05 to the OP with a request to give the pending payment alongwith interest in reply to which the OP issued a letter dated 15.06.05 asking the complainant to deposit 9 balance installment amount with interest and accordingly the complainant made payment of Rs.3,76,000/- and Rs.3,10,000/- in the month of December 2007 under the Penalty Relief Scheme; that she intimated vide letter dated 27.12.07 regarding all payments made by her as demanded by the OP from time to time under various Schemes and demand letter which was latter on duly acknowledged by the OP vide acknowledgement No. 105560 dated 27.12.07. It is reiterated that the complainant made the excess payment of Rs.10,26,139/- against the actual cost of the flat of Rs.5,66,200/- under various Schemes of the OP.
Complainant has filed her own affidavit in evidence. On the other hand, affidavit of Sh. D. K. Gupta, Director (H-II) 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 advanced on behalf of the complainant but no oral arguments have been advanced on behalf of the OP despite opportunity given in this behalf.
We have also gone through the file very carefully.
Copy of the Expandable Housing Scheme, 1996 has been filed as Ex. OPW1/1 which inter-alia provides that a person applying under the Scheme shall pay as initial deposit of Rs.7500/- for Type A and Rs.15,000/- for Type B houses and in case applicants opts for both the categories of houses he/she will have to pay Rs.15,000/- only as initial deposit. Now, the case of the OP is that the complainant did not deposit the initial amount of Rs.15,000/-.
Admittedly, the demand-cum-allotment letter for the period 30.05.97-16.06.97 thereby allotting the flat in question to the complainant had been issued by the OP to the Complainant. The copy of the same has been filed as Ex. OPW1/3. We have very carefully gone through the said document. Nowhere, in the said document the complainant had been asked to deposit Rs.15,000/- as initial deposit. Even otherwise, the deposit of the initial amount of Rs.15,000/- was a condition precedent to be eligible for allotment of flat under 1996 Scheme which means that if anybody did not deposit the said amount of Rs.15,000/- alongwith the application form his/her application was liable to be rejected summarily. His/her name would not have been included in the list of the intended allottees and also the flat in auction could not be allotted to the complainant in the draw held on 21.03.97. Making of a less payment of Rs.15,000/- at some subsequent stage must not be taken as failure of the Complainant to deposit Rs.15,000/- towards initial payment. The Complainant has filed copies of the challans and the details of the payment sent to the OP vide her letter dated 19.05.07.
According to the demand-cum-allotment letter Ex. OPW1/3 the complainant had to pay Rs.5,66,200/- towards the total cost of the flat in question and she had to deposit ten installments upto the period 21.05.2002. The payment of last installment of Rs.41706.41p was to be made on 21.05.2002. However, from the case of the complainant herself it becomes crystal clear that she had not deposited the installment in time and till 21.05.2002 she had been making payment according to her own wish and lumpsum deposit of Rs.3,76,000/- against 9 instalments of Rs.41706/- was made by her on 30.11.06. Therefore, the complainant herself was guilty of not paying the installments in time. At the same time, we note it with keen interest that despite default on the part of the complainant in making the payment of installments in time the OP did not cancel the allotment of flat in question in her favour. We say so because neither in the written statement nor in the affidavit of the OP’s witness it has been stated anywhere that the allotment of the flat in question in favour of the complainant had been cancelled at any stage.
Let the things remain as they are. Copy of the payment of Rs.3,10,000/- through challan No. 105560 dated 27.12.07 has been filed on the record as Ex. CW1/K under the Penalty Relief Scheme, 2007. Thus, this fact clearly goes a long way to prove that the complainant had infact made late payment. The payment of the said amount in the account of the OP has not been denied on behalf of the OP though the simple case of the OP is that the complainant had never informed the OP regarding the deposit of Rs.3,10,000/- on 27.12.07 under the Penalty Relief Scheme. Mere denial of this fact by the OP will not make any difference. The copy of receipt filed with copy Ex. CW1/K is on the record which we mark as Ex. CW1/K1 for the purposes of identification. From a perusal of this copy, it becomes crystal clear that the complainant had deposited the amount of Rs.3,10,000/- towards allotment of flat No.117, Block D. Thus, the said payment had been made by the complainant towards the cost of the flat in question.
Despite making the payment of huge amount by the complainant to the OP the OP did not issue possession letter in respect of the flat in question to the complainant as the complainant was herself guilty for this lapse on the part of OP to a great extent. Therefore, the complainant herself was negligent in discharging her legal duty. However, at the same time after receiving more than the required amount from the complainant atleast on 27.12.07 the OP ought to have issued a possession letter in respect of the flat in question in favour of the complainant on the price already deposited by the complainant. Therefore, OP is also guilty of deficiency in service.
Complainant deposited Rs.3,10,000/- on 27.12.07. The present complaint has been filed on 05.11.09. Therefore, the complaint is not time barred.
Keeping in view the peculiar facts and circumstances of the case discussed hereinabove, the OP shall now consider the amount of Rs.10,26,139/- as price of the flat in question and now shall issue a possession letter in respect of the flat in question or if the said flat has since been allotted to someone else shall allot a new flat under EHS (Expandable House) Scheme of Type B in Block D, Bindapur, Dwarka, New Delhi or under any other Scheme equivalent to the said Scheme in Bindapur, Dwarka or in a nearby/adjacent area within a period of 90 days from the date of receipt of copy of this order in favour of the LRs of the Complainant.
Since, the complainant has died during the pendency of the complaint we do not award any damages and compensation for mental agony and harassment and also cost of litigation to the LRs of the complainant. If the OP fails to issue possession letter in respect of the flat as per this order within the stipulated period the LRs of the complainant shall become entitled to be awarded Rs.500/- for each day’s delay till the possession is delivered to them. Complaint stands disposed off accordingly.
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 02.04.18.
