PER JUSTICE R.C.JAIN, PRESIDING MEMBER (ORAL)

Alleging deficiency in service on the part of the opposite party – Meerut Development Authority in neither giving the possession of the plot nor refunding the amount deposited by the complainant with the opposite party despite repeated representations made in that behalf, the complainant has filed the present complaint seeking following reliefs:

2.         The complaint has been filed with the averments and allegations that in the Month of June 1989, in response to an advertisement issued by the opposite party – Development Authority inviting applications for allotment of residential plots, complainant being keen to get such a plot, submitted an application form duly filled on 16.09.89 alongwith earnest / registration fee of Rs.20,000/-.  Vide communication dated 01.11.1989, the opposite party - Authority informed the complainant that a plot measuring 450 sq. yds. has been allotted and called upon the complainant to deposit the first instalment of Rs.35000/- towards 25% of the cost of the plot.  Complainant deposited the said amount and, thereafter, the allotment of plot bearing no. E-38, Category Type ‘A’, Sector –5, Shatabdi Nagar, Phase-I, Meerut was made to the complainant.  However, when after sometime the complainant visited the site where the opposite had proposed to carve out the plots, he noticed that there was absolutely no development at the site and, therefore, he did not think it viable to deposit any further amount which was demanded by the opposite party from time to time.  The fact remains that except for making the payment of Rs.55000/-, the complainant failed to pay any further amount towards the cost of the plot as demanded by the opposite party.  According to the complainant, non development of the area / plot is a deficiency on the part of the opposite party and, therefore, the complainant is entitled to be compensated suitably because today the prices of such a plot have become exorbitant, beyond the means of the complainant to acquire. 

3.         The complaint was resisted by the opposite party by filing written version thereby not disputing the factum of floating of the scheme and complainant having made an application for allotment of plot, he having been allotted the aforesaid plot and having also received a sum of Rs.55000/- as part consideration of the plot.  It was, however, explained that site was developed and the demands for the balance consideration were raised on the complainant from time to time which he failed to make payment and, therefore, the allotment was cancelled on 27.05.96.  Case of the opposite party that even the refund of the deposited amount could not be made to the complainant because the deposited amount had been adjusted by them towards the interest payable on the instalments which remained unpaid for several years.  Liability to pay any compensation much less the compensation / relief sought by the complainant has been denied.

4.         We have heard Ms. Astha Tyagi,  amicus curiae for the complainant and Mr. Devesh Kumar, learned counsel for the opposite party and have considered their respective submissions.

5.         Going by the admitted position that the complainant having been allotted the plot failed to deposit the balance cost of the plot through instalments as and when demanded by the opposite party, it can be safely inferred that complainant was himself responsible to a great extent in discharging his part of  obligation under the terms of allotment.  Assuming that all the promised amenities were not provided in the area, the complainant, if he was really serious and sincere in getting the plot ought to have deposited the due instalments rather than defaulting in making the payment on the ground of non development of the area. Therefore, we are of the considered opinion that complainant cannot legitimately make a claim for the allotment of said plot or any other alternative plot at this stage, he having paid a sum of R s.55000/- only towards the cost of the plot.

6.         Now what other relief can be awarded to the complainant is the question which remains to be considered by us.  There is no dispute that complainant had deposited a sum of Rs. 55000/- as demanded by the opposite party.  According to the opposite party, the complainant forfeited his right to get the refund of the said money due to his failure to pay the balance cost of the plot and the amount paid by the complainant has been appropriated towards the interest and penal interest levied on the instalment (s) which were to be paid by the complainant till the date of cancellation of the plot in the year 1996.  To say the least, we are not at all impressed with such kind of policy / decision of the opposite party because as per the terms and conditions of the allotment, the opposite party was at liberty, rather it was enjoined upon them to cancel the allotment of plot on the default having been committed by the complainant in depositing the balance amount. The question of payment of interest of penal interest would have arisen if the complainant either before cancellation or after cancellation had approached the opposite party with a prayer to deposit the amount on later date.  That has not been done in this case. Merely because the opposite party kept the proposal pending with it and cancelled the allotment of plot only in the year 1996 i.e. after a period of about seven years due to the default of the complainant in making the payment of the instalment would not entitle them to charge any interest or penal interest.  Money of the complainant amounting to Rs.55000/- remained throughout with opposite party. Therefore, in all fairness, we can presume that same must have been utilized by them for some useful purpose.  We are, therefore, of the opinion that opposite party should refund the amount deposited by the complainant with them with some reasonable interest to the complainant towards compensation. 

7.         What should be the amount of interest  is the another question which needs to be considered by us.  Learned counsel for the complainant has referred to the decision of the Supreme Court in the case of DDA Vs Krishan Lal Nandrayog 1V (2010) CPJ 7 (SC), in which case, the Supreme Court upheld the award of interest @ 15% p.a. for the period of delay in  offering possession of flat.  On the other hand, learned counsel for the opposite party has heavily relied upon a decision of this Commission in OP No. 322 of 1999 which was a case under similar circumstances and this Commission directed the opposite party – Meerut Development Authority to refund the deposited amount of Rs.50,000/- with interest @ 9% from the date of filing of complaint.  The decision of the Supreme Court was passed in different set of circumstances and, therefore, cannot be applied to the facts of the present case.  The decision in the other case is almost on similar facts but in our view the interest awarded @ 9% p.a. was on slightly lower side and so it needs little upgradation to make it reasonable to both sides.  Accordingly, we feel that it will adequately meet the ends of justice if interest @ 12% p.a. is awarded towards compensation to the complainant on the deposited amount of Rs.55000/- w.e.f. from date of complaint.

8.         In the result, complaint is partly allowed with a direction to the opposite party to refund the deposited amount of Rs.55000/- with interest @ 12% p.a. w.e.f date of complaint till its payment, to the complainant.  Opposite party is directed to make the payment of the awarded amount to the complainant within a period of six weeks from today failing which rate of interest shall enhanced to 15% p.a. from the date of default.   

9.         We appreciate the assistance rendered by Amicus Curiae Astha Tyagi in this case and direct the registry to pay her a further sum of Rs.7500/- as out of pocket expenses from the account of ‘Consumer Legal Aid Account-NCDRC’, she already having been paid a sum of Rs.2500/-.