DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

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

(Behind Qutub Hotel), New Delhi-110016

Case No.189/2009

Smt. Neeta Rastogi

716 PKT-V, Mayur Vihar (Phase-1)

Delhi-110091                                                               ….Complainant

Versus

Vice Chairman

DDA, Vikas Sadan,

INA, New Delhi-110023                                            ….Opposite Party

                                                  Date of Institution      : 26.02.09     Date of Order              :03 .03.18

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

Briefly stated, the case of the complainant is that the complainant applied for permission for transfer of DDA residential flat on payment of 50% of “unearned increase” and accordingly deposited Rs.13400/- on 27.03.1990 for the same. However, the same could not happen due to withdrawal of the scheme. Accordingly, the complainant applied for the refund of the money. Despite regular follow up the OP refunded the said amount  after a gap of more than 18 years without any interest vide cheque No. 039299 dated 12.05.08. It is submitted that withholding of the amount for more than 18 years amounts to deficiency in service. It is submitted that after receipt of the payment the complainant made several visits to the office of the OP for payment of interest but to no avail. Hence, this complaint. It is prayed that the OP be directed to pay compound interest @ 18% w.e.f 27.03.1990 on Rs.13400/-, to pay Rs.50,000/- as compensation for mental and physical harassment and Rs.21,000/- as litigation cost.

          OP in the written statement has inter-alia stated that the deposit of money towards unearned increase is not for hiring of service as defined in the Consumer Protection Act.  The complainant is estopped from raising the present dispute as the refund of unearned increase was taken by the complainant without any protest. After taking the refund and encashing the same the complainant is estopped from raising the present dispute. The complainant’s claim is barred by time. It is submitted that as per record Sh. Jagdish Prasad S/o Sh. Dhuru Mal vide application No. 2497 sought permission for sell/transfer of DDA residential flat on payment of 50% unearned increase in favour of Smt. Neeta Rastogi W/o Sh. Akshay Kumar. The same was allowed to him vide office letter dated 15.02.1991 subject to the several conditions mentioned in the letter dated 15.02.1991. The OP vide letter dated 19.03.1993, 27.07.1993 and 07.12.1994 asked the complainant to contact the OP alongwith original documents. However, no response was received.  The OP vide letter dated 22.10.1998 informed the complainant that the complainant had failed to submit the certified copy of the sale deed in view of the scheme flouted by the OP for conversion from leasehold to freehold the complainant was advised to apply from leasehold to freehold. In the said letter it was clearly mentioned that “since you remained failed to submit the certified copy of the registered sale deed as well as other documents also, your request cannot be acceded to. Now in view of the DDA Conversion Scheme 92, you may apply for conversion from leasehold to freehold in your favour.” In the meantime Smt. Neeta Rastogi W/o Sh. Akshay Kumar applied for conversion from leasehold to freehold vide application No.121295 dated 22.08.06 in respect of flat under reference in her favour in the capacity of GPA/purchaser. The conversion in respect of the flat under reference was allowed from leasehold to freehold in favour of Smt. Neeta Rastogi and Conveyance deed was executed in her favour on 15.02.07. Sh. Akshay Kumar vide letter dated 28.03.07 and reminder dated 17.08.07 requested for refund of 50% unearned increase deposit in respect of the flat under reference on conversion of flat under reference from leasehold to freehold. As per record Smt. Neeta Rastogi also filed RTI application dated 19.07.07 seeking information regarding refund of 50% of unearned increase. The same was replied by the OP vide letter dated 28.09.07. Accordingly, the OP vide letter dated 25.09.07 requested the complainant to submit the original challan so that the case could be processed for the refund  and in response to above the complainant vide her letter dated 01.10.07 submitted the challan No.791903 dated 27.03.1990 amounting to Rs.13400/- on account of 50% unearned increase. The OP vide letter dated 31.12.07 requested the complainant to furnish the photocopy of the bank passbook duly attested. The same was supplied by the complainant vide her letter dated 10.01.08. Accordingly, the OP vide letter dated 25.02.07 (sic) cheque No. 039212 dated 19.02.08 for Rs.13400/- was sent to the complainant on account of excess deposit of conversion charges against the flat under reference through enforcement (H). However, the same was lost by the JE/ENF (H) on 07.03.08 and the complaint was lodged with SHO P.S. Kotla Mubarakpur. Thereafter Sh. Akshay Kumar vide letter dated 20.03.08 again requested for issue of refund cheque. The complainant vide letter dated 19.05.08 also sought information under the RTI Act followed by appeal dated 22.05.08. Ultimately, the excess amount of Rs.13400/- was refunded to Smt. Neeta Rastogi vide cheque No. 039299 dated 12.05.08 vide OP’s letter dated 17.06.08. It is submitted that Sh. Akshay Kumar vide letter dated 03.06.08, 26.06.08, 13.08.08, 14.10.08 and vide appeal under the RTI Act dated 1812.08 asked for information about interest on the principal amount. The same was replied by the OP vide letter dated 07.01.09 and 02.02.09 with the information that no interest is payable towards refund of unearned increase.  It is submitted that the complainant is not entitled to any interest, damages for mental torture and cost. It is prayed that the complaint be dismissed.

Complainant has filed a rejoinder

Complainant has filed her own affidavit in evidence. On the other hand, affidavit of Sh. S. K. Jain Director (H) 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.

It is not in dispute that the complainant had deposited Rs.13400/- and the same was refunded by the OP to the complainant vide cheque No. 039299 dated 12.05.08.  Annexure CW/1 is the copy of receipt/ application No. 2497 wherein the name of the allottee of the flat has been written as Jagdish Parsad S/o Bharu Mal. The amount of Rs. 13400/- had been deposited by the allottee and not by the complainant. Correspondence with the OP had been made by the complainant and also by her husband. Annexure CW/4 is the copy of letter vide which amount of Rs.13400/- on account of unearned increase had been sent to Akshay Kumar (H/O of complainant).  We do not know in whose name this cheque had infact been prepared by the OP. Anyhow, it is not the case of the complainant that the said amount was received by her under protest. As soon as the complainant received the said amount from the OP without any protest she ceased to be a ‘consumer’ as defined in the Consumer Protection Act and hence the complainant is not a consumer.

In view of the above discussion, we hold that the complainant has failed to prove her case. 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 03.03.18