AVM J. RAJENDRA, AVSM, VSM (RETD.), MEMBER 1. The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 (hereinafter referred as “the Act”) against the Order dated 01.09.2021 passed by the learned State Consumer Disputes Redressal Commission, U.P. Lucknow (hereinafter referred as “the State Commission”), in Consumer Complaint No.131 of 2000 filed by the Appellant/ Complainant wherein the State Commission partially allowed the complaint and directed the Respondent/Opposite Party to pay Rs.3,40,000/- with interest @ 10% from 24.02.1999 till the date of actual refund. The Opposite Party is also directed to pay Rs.50,000/- towards mental harassment and Rs.20,000/- towards cost of the suit. The entire said amount shall be paid within 30 days from the date of judgment, failing which the rate of interest shall be 12% per annum. 2. The delay of 55 days in filing the present Appeal has been dealt with vide Order dated 16.03.2023 passed by this Commission and it was treated to have been filed within limitation. 3. Brief facts of the Case are that in the year 1990 the Opposite Party notified a housing scheme in the name and style of "Kanpur Road Yojna ke Antargat Sector H me Bhawnon ke Panjikaran Hetu". The complainant secured her registration for an allotment of MIG built up house by depositing the prescribed registration amount of Rs.15,000/- on 22.08.1990. Accordingly, an MIG house under Self Financing Scheme at Kanpur Road (Sector H) on 30.07.1991 was allotted to the complainant. On 18.09.1991, the OP had issued a formal allotment letter of MIG house number 3/658, in Kanpur Road Scheme (Sector-H) under the Self Financing Mode of Payment, at an estimated cost of Rs.340,000/-. Vide the said allotment letter dated 18.09.1991, the complainant was required to deposit five quarterly instalments of Rs.61,000/- each latest by 15.01.1993. 4. In compliance with the allotment intimation of 30.07.1991 and allotment letter dated 18.09.1991, the complainant deposited the following amounts:- Date of Payment Amount 30.08.1991 20,000/- 12.08.1992 61,000/- 03.09.1992 61,000/- 03.09.1992 61,000/- 15.10.1992 61,000/- 16.01.1993 61,000/- Total Amount deposited Rs.325,000/- 5. Thus, the entire estimated cost of the said house amounting to Rs.340,000/- (including Rs.15,000/- registration money) was deposited by 16.01.1993. After depositing complete dues, the complainant visited the site to inspect the condition of said allotted house. On inspection the complainant found the following defects in the said unit: - a. Walls were damp b. Dampness was oozing out of foundations c. Plaster had peeled off d. Walls bore cracks e. House Was below promised standards 6. On 04.04.1993 the complainant lodged a strong protest with the OP and requested to change the allotted house with a different house or return the deposited amount along with due interest. For six years the OP kept the matter in cold storage in spite of several representations. Neither the OP changed the said defective house nor refunded the deposited amount with due interest to the complainant. After such harassment, the complainant on 20.02.1999 met the Vice-Chairman of the OP Mr. Balvinder Singh and again requested either to allot any other house at the same cost or to refund her deposited amount with interest. The Vice-Chairman of the OP directed the Sanyukt Sachiv (BHARTI) Mr. RP Singh: "कृपया परीक्षण कर तुरंत आख्या प्रस्तुत करे अन्यथा ब्याज सहित धनराशि वापस करें।" 7. In spite of the orders of Vice-Chairman of LDA nothing was done. Therefore, the complainant on 20.05.1999 forwarded a legal notice to the OP demanding refund of entire deposited amount of Rs.3,40,000/- along with 18% interest from the date of deposit. The OP, without cancelling her allotment, sold the said unit to someone else in the year 1998 for Rs. 6.5 lakhs. Losing all hope of success, she represented to Shri Lalji Tandon, Minister for Housing and Urban Development on 01.07.2000 requesting him to cause the OP to refund her amount as the OP had already sold the said allotted house no. 3/658 to someone else with no intimation to the complainant and without allotting alternative house to the complainant. 8. Being left with no option, the complainant preferred a complaint against the OP on the ground of deficiency in service and unfair trade practice in allotment of the said house and refund of deposit amounting to Rs.3,40,000/-. Had the OP refunded the said amount in time, she would have purchased a house from other builders. She is in a rented house since 1993. The OP slept over the matter and she left no stone unturned to get refund of her deposited money. Thus, the OP is guilty of negligence and kept her on a waiting list for long and inordinate period. She sought grant of reliefs claimed. 9. The OP, in its written statement has submitted that the complainant had deposited a sum of Rs.3,40,000/- towards the final cost of the flat allotted to her. As per the OP, unless and until the allottee takes the possession of a house, she cannot point out the defects in the house. Apparently, after depositing the entire amount, the complainant changed her mind regarding taking possession of the house allotted to her and therefore, she submitted a letter on 04.04.1993 to exchange the house allotted with any other house or for refund of the deposited amount. The OP submitted that vide letter no 4415/JS(S) dated 08.08.1995, the complainant was informed that for execution of lease deed in her favour in respect of the house no. 543/668/H, she had to furnish the general stamp papers for a sum of Rs.12,325/- along with lease rent. But, the complainant did not complete the aforesaid formalities. At her request, the Vice-Chairman of the Lucknow Development Authority passed order for refund of the deposited amount along with admissible rate of interest at a rate of 6% per annum. But, the complainant forwarded a legal notice to the OP claiming interest @ 18% per annum after OP accepted her request for refunding the amount. The OP was free to sell the said house at prevailing rate and same was allotted to Smt. Manorama Singh in April 1997 for Rs.3,45,000/ and not Rs. 6,50,000/- as claimed. 10. Vide letter No. 756/PO dated 07.09.2000, the complainant was informed by the OP that she was required to deposit the original chalan in the office of the OP, for refund of the amount deposited by her along with admissible interest. The OP vide letter No. 854/JS dated 15.02.2001 forwarded a reminder. She herself was responsible for delay in refund of the deposited amount, as she failed to complete the formalities. Firstly, she did not complete the procedure for registration and possession of the house. Further, when the OP sanctioned the refund of the deposited amount along with admissible interest, instead of depositing the original challan, she filed a complaint before the State Commission. In case of refund, it is mandatory for the depositor to submit the original chalan. In case of loss of original challan, the depositor has to lodge an FIR and give an affidavit with regard to the amount deposited. Once she exercised her option of taking refund, she would be entitled to the interest @ 6% per annum and she cannot raise objections with regard to any defect in the house allotted to her. As per rules, only the unsuccessful applicants in the lottery, whose registration amounts are refundable, are granted the interest admissible. If, after depositing the entire amount, an allottee is not willing to take possession of the property and claims refund, she would not be entitled to any refund. 11. In the present case, however, the Vice - Chairman in exercise of his special powers had sanctioned the refund of the deposited amount along with the interest to the complainant. Thus, there is no deficiency in service on the part of the OP. The OP is still ready to refund the amount along with admissible interest on receipt of the original chalan. She is not entitled to any compensation in view of the fact that she has been granted interest also on her deposits. Therefore, she has been fully compensated in terms of interest. The complaint is misconceived, devoid of merit and is liable to be dismissed. 12. Being aggrieved with the Order dated 01.09.2021 passed by the learned State Commission, the Complainant filed the present Appeal with the following prayers: “I. Admit the First Appeal and set aside/modify the Impugned Order dated 01.09.2021 passed in CC No. 131 of 2000 passed by the Ld. State Commission, Lucknow; II. Hold that refund of deposited amount of Rs.3,40,000/- alongwith 21% p.a. interest to be directed against the Respondent w.e.f. date of 1st payment i.e. 22.8.1990 and also from all Dates against with Payments were made accordingly to the Respondent. III. Direct the Respondent/OP to pay to the Appellant/Complainant an amount of Rs.200000 for mental tension and agony. V. Pass such other/or further orders as may be fit and proper in the facts and circumstances of the case. VI. Call for records from the Ld. State Consumer Disputes Redressal Commission, Lucknow, Uttar Pradesh.” 13. The Respondent/ OP has not filed any Reply/Objections to the present Appeal. 14. The learned Counsel for the Appellant/Complainant has submitted that the learned State Commission has erred in awarding the rate of interest @ 10% per annum from 24.02.1999 till the date of actual refund and it should be from the date of actual deposits. He placed reliance on judgments of this Commission and the Hon’ble Supreme Court i.e. I. Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, II Ghaziabad Development Authority Vs. Balbir Singh, (2004) 5 SCC 65, III Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, Civil Appeal No.6044 of 2019, decided on 07.04.2022. IV Judgements of this Commission in Seema Anand Vs. Unitech Ltd. & Anr., C.C. No.829 of 2016, decided on 07.06.2018; and Neeraj Antil Vs. M/s. EMAAR MGF Land Ltd., C.C. No.1455 of 2018, decided on 02.03.2023. 15. The learned Counsel for the Respondent/Opposite Party has argued in support of the Impugned Order passed by the learned State Commission and submitted that there is no ground for any enhancement of interest in the form of compensation and the First Appeal is liable to be dismissed. 16. We have examined the entire pleadings, associated documents placed on record, the judgments cited by the parties and heard the arguments advanced by the learned counsels for both the parties. 17. It is an admitted position that the Appellant paid an amount of Rs.3,40,000/- as per the schedule. She had inspected the property in dispute and found the walls to be damp; dampness was oozing out of foundations; plaster peeled off at placers; the walls bore cracks; and the house was below the promised standards. She complained immediately and followed up at all possible levels. The OP considered that she could not have complained about the house in question without residing in it. However, due to her persisting grievances, the OP decided to refund the amount she had deposited with interest @ 6% per annum as a special case, based on the order of the Vice-Chairman LDA. Thus, the grievances of the Appellant as regards the services provided by the OP are genuine to certain extent. At the same time, no ground is made out for enhancement of the compensation that has been is ordered by the learned State Commission vide impugned Order dated 01.09.2021. 18. As regards the rate of interest applicable and the scope for payment of compensation in such matters, the Hon’ble Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 decided on 7.4.2022 has held that:- “We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the Order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits. At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just.” 19. In view of the submissions of the learned counsels for both the parties and the established precedents by the Hon’ble Supreme Court in the matter, the impugned Order dated 01.09.2021 passed by the learned State Commission, U.P. is modified with the following directions: - ORDER - The Respondent/Opposite Party shall refund the amount of Rs.3,40,000/- to the Appellant/Complainant, along with simple interest @ 9% per annum from the respective dates of deposit till the date of payment, within a period of one month from the date of this order. In the event of default, the amount payable shall carry interest @ 12% per annum from the date of expiry of one month till the realization of the entire amount.
- The Respondent/Opposite Party shall pay cost of litigation quantified as Rs.20,000/- to the Appellant/ Respondent, within one month from the date of this order.
20. Consequently, the instant First Appeal No. FA/863/2021 stands disposed of. All the pending Applications, if any, also stand disposed of. The statutory amount deposited by the Appellant, if any, be refunded after due compliance of this Order. |
