- This is a Revision Petition filed by the Petitioner / Opposite Party – Delhi Development Authority against the Order of the State Consumer Disputes Redressal Commission, Delhi (for short, the State Commission), which had dismissed its Appeal and confirmed the Order of the District Consumer Disputes Redressal Forum – II, Delhi (for short, the District Forum), which had allowed the Complaint. The Respondent / Complainant had filed a Complaint in the year 2010 before the District Forum for having been denied possession of the Unit allotted to her even after having made the entire payment. This is a case of concurrent finding.
- Heard the arguments of the learned Counsel for the Petitioner and the Respondent.
- At the outset, the learned Counsel for the Respondent submitted that the case should be dismissed on the ground of limitation as the Petition has been filed after a delay of 178 days beyond the period of limitation. He further submitted that in the application for condonation of delay, no sufficient cause has been mentioned except for the ground that a period of little over 1 ½ months can be condoned due to covid pandemic as per the Order of the Hon’ble Supreme Court in Suo-Motu Writ Petition (C) No. 3 of 2020, dated 10.01.2022.
- The learned Counsel for the Petitioner submitted that the Orders of the State Commission and District Forum need to be set aside. The Complaint is time barred. The Complainant did not pay the instalments on time and accordingly the allotments were twice cancelled.
- The matter has been discussed in detail in the Orders of both the State Commission and the District Forum. Without going into the details of the case, I would to restrict myself to the question whether there is any question of law which the State Commission and the District Forum have not addressed or whether there is any illegality in the Orders of these two Commissions.
- After hearing the arguments of both Counsel and after having gone through the record carefully, I notice that no new question of law or any material fact has been put-forth by the Petitioner which has not been already put-forth before the other two Commissions and which have not been given careful consideration by them. The Respondent / Complainant had applied for an allotment of a flat in category – II of 7th Self Financing Scheme and was allotted a Unit in 1995 in Sector – 3 of Dwarka. Certain payments were to be made which were not done by the Complainant and in the year 1997, the allocation of the flat was cancelled. On representation made in 1998, the allocation was restored and an amount of Rs. 5,05,000/- was demanded. Against five instalments, payments of four instalments were made, however, when the fifth and final instalment notice was issued, the Complainant noticed an error in the calculation made by the Petitioner. A number of representations including physical visits were made by the Complainant, however, there was no response till the year 2007 when the Complainant decided to make the entire balance payment of Rs. 2,15,785/- as demanded against the actual due of Rs. 1,68,650/- in the year 2007. Representations were again made to DDA for handing over of the Unit in question, but only in the year 2009, DDA replied to the Complainant stating that it had already cancelled the second allotment on 06.03.2009. The Complainant, thereafter, filed a Complaint before the District Forum in the year 2010. The learned Counsel for the Respondent submitted that after having made payment of four instalments on time by 1998 itself towards the second allotment, which was restored in 1998, it was only the final instalment which had been wrongly calculated by the DDA and for which, time and again, representations were made for its rectification that payment was not made. He further argued that the Petitioner in their internal notings, which has been produced as evidence, have themselves admitted and acknowledged that there was a clerical mistake in the calculation made towards the final payment, which was shown as Rs. 2,15,785/-, instead of the correct amount of Rs. 1,68,615/-. I have gone through the notings of the Petitioner / Authority and I notice that this admission of mistake had been categorically admitted. When this being the case, the learned Counsel for the Respondent submitted that the Petitioner instead of rectifying the defect, went on insisting by their letter to the Respondent that the calculation was correct. On a representation once again, the matter was re-examined by the Petitioner and again the mistake had been acknowledged. Undoubtedly, this is a clear case of deficiency of service on the part of the Petitioner, which has continued with its old stand instead of rectifying the defect and allotting the Unit and handing over possession of it to the Respondent. The Respondent, in the meantime, had deposited the excess amount as demanded by the Petitioner. The money continues to be with the Petitioner.
- The learned Counsel for the Petitioner submitted that communication was made to the Respondent between the period 1999 and 2007. This has been contested by the Respondent saying that no evidence has been produced by the Petitioner to this effect and the Petitioner instead of examining the request of the Respondent to rectify its mistake has made this kind of submission not borne out of any evidence and to cover up its deficiency of service.
- It is a fact that a fresh allotment was made by the Petitioner to the Respondent. It is a fact that out of five instalments, four instalments were paid within time. It is also a fact that the fifth instalment indicated by the Petitioner to the Complainant contained a wrong figure, which the Petitioner instead of rectifying the same continued with the demand and without giving any opportunity cancelled the allotment in the year 2000 itself. It has continued to retain the deposited amount till this date.
- The learned Counsel for the Respondent submitted that while the Appeal was pending before the State Commission, the Petitioner in high handed manner allotted the Unit being Flat no. 357 of Sector – 3, Block 16, Category – 2 at Dwarka to a third party, which again is another clear case of deficiency of service. He further pointed out that since the Unit has already been allotted to a third party to his best knowledge, flat no. 333 in the same project is still available which the Commission may direct the Petitioner to allot. It appears that this Unit is exact equivalent of the Flat no. 357 and it is also vacant.
- In summary, deficiency of service on the part of the Petitioner is on two main grounds (i) it has allotted the unit 357, which was originally allotted to the Respondent to a third party during the pendency of the Appeal without seeking permission of the State Commission or informing the Complainant, (ii) it has not handed over possession to the Respondent, inspite of, the entire payment having made by the Respondent by the year 2007 itself against the demand of the Petitioner. The Petitioner has also admitted to the clerical mistake of giving a wrong figure towards the balance amount receivable in the final instalment which was given as Rs. 2,15,785/- instead of Rs. 1,68,615/-. This difference of amount is not small, which any allottee can ignore and the allottee / Respondent is within her rights to point out the mistake to the Petitioner which instead of rectifying, cancelled the allotment. It is nothing short of a high handed approach.
- In view of the aforesaid discussion, I notice no illegality, material irregularity and jurisdictional error in the Orders of the State Commission and the District Forum, which have given very well-reasoned Orders. Even the delay in filing of the Revision Petition by around 150 days without sufficient cause cannot be ignored and the application for condonation of delay is also dismissed and the Petition is held as barred by limitation.
- On both grounds of limitation as well as merits, the Revision Petition is dismissed and the Orders of the State Commission and the District Forum are partly allowed. Since, the Unit SFS No. 357 (2nd Floor) Sector – 3, Pocket – 16 under Category – II at Dwarka is not available, the Petitioner is directed to hand over possession of Unit No. 333 in the same area, category within a period of six weeks of this Order failing which interest @ 6% per annum on the deposited amount from the date of filing complaint till realisation shall be paid. Further, an amount of Rs. 1 lakh towards cost of litigation shall be paid. No amount is payable towards mental agony as directed by the District Forum.
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