PER VINEETA RAI, MEMBER

1.       Revision Petitions No. 4067 of 2008 and 4083 of 2008 have been filed by Smt. Asha Mahrotra and Shri Pramod Kumar Wahal respectively (hereinafter referred to as the Petitioners) being dissatisfied with the relief granted to them by the U.P. State Consumer Disputes Redressal Commission, Lucknow (hereinafter referred to as the State Commission) vide its order dated 27.08.2008 passed in Appeals No. 2901, 2902, 2878 and 2879 of 2001.

          Since the parties as also the facts in both the Revision Petitions are similar arising out of two common consumer complaints, it is proposed to dispose of these Revision Petitions by a common order.

2.       Briefly the facts of the case are that Petitioners had applied for allotment of houses under the Scheme entitled “Udyan Scheme” floated by M/s Eldeco Housing & Industries Ltd. (Respondent herein) and vide allotment letters no. UD-11/823 dated 12.07.1987 and UD-11/844 dated 15.06.1987 they were allotted houses no. 1085 and 1086 at a total cost of Rs.71,000/- each, payment for which was to be made as per the schedule indicated in the allotment letters.  Possession of the allotted houses was to be given by 31.12.1991.  As per the schedule, Petitioners had paid a total amount of Rs.35,200/- to the Respondent in the following manner:

On 15.10.1989 Petitioners were informed that on account of increase in the land area, an additional amount of Rs.15,750/- each was to be paid by them, for which Respondent would facilitate their taking loans.  Petitioners immediately informed the Respondent vide letter dated 17.10.1989 that they were willing to pay the enhanced amount but they did not need any financial assistance/loan.  They further requested that they may be informed of the revised payment schedule.  Although there was no response in respect of this information, Respondent vide letter dated 26.02.1993 informed the Petitioners that they were unable to allot houses no. 1085 and 1086 to them and instead suggested four other units, out of which two could be selected by the Petitioners in lieu of earlier ones but at an enhanced cost of Rs.1,08,020/- each.  They were informed that they should pay the balance amount of Rs.73,420/- in case they were willing to accept these units within 18 months from the date of that letter.  Petitioners vide their letter dated 16.07.1993 informed the Respondent that they were willing to purchase the units no. 416 and 430 offered by the Respondent but raised some queries regarding the additional amount demanded for these units, particularly since they had already agreed to pay the amount of Rs.15,750/- towards the additional area of land.  They also enquired if they could pay the increased amount in lump-sum at the time of possession of these units since the demand for payment within 18 months was unreasonable.  Petitioners further communicated that since the Respondent had failed to deliver the possession of earlier premises within the stipulated period, Respondent was liable to pay 18% interest on the amount already paid by the Petitioners for the earlier units.  Respondent, however, without replying to this letter and before the period of 18 months was over unilaterally and without notice cancelled the allotment vide their letter dated 14.02.1994.  Being aggrieved by this action, Petitioners filed their complaints before the District Forum requesting for (i) possession of units no. 416 and 430 situated at Udyan Part-II, Raksha Khand, Sharda Nagar, Lucknow; (ii) payment of interest @ 18% per annum on deposited amount after the agreed date for delivery of possession i.e. 31.12.1991; (iii) payment of Rs.20,000/- as damages and compensation due to breach of contract and deficient services of the Respondent; and (iv) payment of Rs.5000/- as litigation expenses.

3.       The District Forum after hearing the parties and considering the evidence adduced before it, allowed the complaints and passed the following order:

“Both the petitions are being accepted.  Respondent is directed to provide possession of the Allotted House No. 416 or 430 in Udyan Part II, Raksha Khand, Sharda Nagar, within 60 days of this decision, along with this the Respondent is liable to pay interest @ 18%, on the amount deposited from 31.12.1991 till the date of possession.  In case the possession is not possible, than the principal amount Rs.35,200/- along with interest @ 18% from the date 31.12.1991 till the date of payment to each petitioner.  Furthermore Rs.10,000/- & Rs.10,000/- towards damages.  Rs.1000/- & Rs.1000/- towards cost to each petitioner.”

4.       Being aggrieved by this order, both Petitioners as also the Respondent filed Appeals before the State Commission.  Appeals of the Petitioners were against the alternative relief given by the District Forum that in case possession of the units is not possible than the principal amount alongwith interest @ 18% may be paid to the Petitioners since the Petitioners were only interested in getting possession of the units.  The State Commission after considering the Appeals partially modified the order of the District Forum by observing as under:

“The Appellant Eldeco Housing and Industries Ltd are being directed to refund, the entire deposited amount with 9% simple interest, within two months, after the receipt of the certified copy of this order, from the date of filing of the Suit to the Respondents/Complainants.  If the payment is not done within the allocated time the rate of interest payable will be 12%.  The original copy of the Order being kept with Appeal No. 2879/2001 and the certified copy of the same with Appeals No. 2878/2001, 2901/2001 and Appeal No. 2902/2001.  The appeals are being disposed of accordingly.”

5.       Dissatisfied with the order of the State Commission, Petitioners have filed the present Revision Petitions, in which they have requested that as directed by the District Forum possession of the allotted houses be given to them alongwith interest @ 18% on the accumulated amount paid by Petitioners to Respondent from 31.12.1991 i.e. the date on which the delivery of possession of the houses was assured till the date of possession and Rs.10,00,000/- as compensation.  In case possession of the houses is not possible, apart from compensation, other reliefs should be provided since the present cost of the houses is well over Rs.20,00,000/- each.

6.       Learned Counsel for both parties made oral submissions reiterating the facts as stated before the Fora below.

7.       Learned Counsel for the Petitioners emphasized that the State Commission failed to fully appreciate the fact that the action of the Respondent in cancelling the allotment without any notice and without waiting for the 18 months period to end was arbitrary and unwarranted and, therefore, granting much lesser compensation to the Petitioners was not justified, particularly since they had not declined to pay the additional enhanced payment for these units.

8.       Learned Counsel for the Respondent on the other hand while conceding that cancellation was resorted to before the due date, justified the same on the ground that instead of making some efforts to pay the additional amount Petitioners sent a legal notice challenging the enhancement even though the reasons for the same were explained to them.  It was further pointed out that even in respect of the first set of units Petitioners had failed to pay the entire amount of Rs.71,000/- and at present a sum of over Rs.79,000/- was pending from them.  Under the circumstances, they were not entitled to allotment of the premises and the relief granted by the State Commission was reasonable.  Further, the two units offered are no longer available since the “Udyan Scheme” had since been closed.     

9.       We have considered the submissions made by the learned counsel for the parties and have gone through the evidence on record.  Based on the admitted facts, we agree that the Respondent was totally unjustified in cancelling the allotment of the two new units offered to the Petitioners in the “Udyan Scheme” in lieu of the earlier allotments without waiting for the 18 months period to end, more so when the Petitioners had in writing accepted the offer and had only raised some pertinent questions relating to the enhanced payment sought as also the revised schedule of payment.  We note that even earlier the Respondent had not kept their commitment of handing over possession of the houses as per the Scheme within the stipulated period although right upto 1991 the Petitioners had been making payment to the Respondent as per the agreed payment schedule.  It is, of course, a fact that the Petitioners did not pay the entire amount of Rs.71,000/- and taking into account this aspect the District Forum had not granted compensation sought by the Petitioners.

10.     Keeping the above facts, we had pointedly asked Counsel for the Respondent whether the units offered to the Petitioners vide their letter dated 26.02.1993 were currently available.  Counsel for the Respondent after checking up from the Respondent reiterated that these units were no longer available but he conceded that the Counsel for the Petitioners was right in stating that some units in similar Schemes are available in Lucknow, for which the market rates are much higher than for the units under the Udyan Scheme.

11.     Taking into account the totality of the above facts, particularly the conduct of the Respondent in initially not adhering to their assurance of handing over the first set of units within the stipulated period and thereafter offering alternative units which was also cancelled arbitrarily and without waiting for the 18 months period offered by them to the Petitioners for making the enhanced payment, we are of the view that they were guilty of both deficiency in service and unfair trade practice.  Therefore, we partially accept the Revision Petitions and direct the Respondent to allot one built up unit to each of the Petitioners of the same area and dimensions as offered under the Udyan Scheme from among one of their existing Projects/Schemes in Lucknow, on the Petitioners paying the outstanding amount of Rs.79,000/- alongwith 9% interest.   The order of the State Commission is modified on the above terms.  No costs.