RESERVED
State Consumer Dispute Redressal Commission, Uttar Pradesh
Lucknow
Appeal No. 932 of 2009
Agra Development Authority
….Appellant
Versus
Munni Lal
……Respondent
Present:-
- Hon’ble Sri Udai Shanker Awasthi, Presiding Member.
- Hon’ble Sri Mahesh Chand, Member.
SriUmesh Kumar Srivastav, Advocate for the Appellant.
Sri Sushil Kumar Sharma, Advocate for the Respondent.
Date: 28.04-2016
Judgment
Sri Mahesh Chand,Member-This Appeal has been filed by Agra Development Authority through its Vice Chairman, against the order dated 1.5.2009, passed by learned District Consumer Dispute Redressal Forum,Agra, in complaint case No 172/2005Munni Lalvs Agra Development Authority, Agra.
In brief the complainant’s case is that the Complainant had applied for allotment of LIG house for which he had deposited a sum of Rs7900/-vide challan no 90 on 5.3.1991. He was registered vide registration no 4292/B/P.S./91 dated 3.12.1991.He deposited another sum of Rs3900/- on 27.3.1992. He was allotted a LIG house in Taj Nagri Scheme on 12.10.1992. He was informed the cost of the said house to be Rs78,650/- vide letter dated 12.10.1992, and it was with in his reach. The allottee deposited a total sum of Rs46,800/- in different dates. The opposite party launched an O.T.S.Scheme (One Time Settlement Scheme). The allottee/complainant applied under said scheme to the opposite party and submitted applications on 2.6.2003 and 28.11.2003 but the opposite party did not
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pay heed to his applications. On the contrary, the opposite party, started threatening to cancel his allotment, in case their undue demands were not met. The opposite party informed the dues over the house to the complainant vide its letter dated 3.12.2003, and it was so much high which he was not able to deposit. Assailing this as deficiency in service the complainant filed a complainant case before the District Forum, Agra.
The opposite party opposed the complainant’s case and filed the written statement before the district forum. The opposite party stated that the cost of the house amounting to Rs 78650/- which was intimated to the allotee, was the estimated cost.The allottee was also informed that the actual cost of the house will be intimated later on. The opposite party denied all the averments of the complaint petition.The complainant was informed of the actual cost of house as Rs 84,150/- and other dues vide letter dated 21.1.1994. In response to the application of the complainant dated 23.6.2000, the complainant was asked to deposit a sum of Rs 157,898.86 under OTS Scheme by 30.4.2001.
After hearing both the parties and perusing evidences on file the learned District Forum passed the impugned order dated 1.5.2009 directing the opposite party to allot the said house at cost of Rs84,150/- as intimated to complainant vide letter dated 21.1.1994. In this order the learned forum have relied upon the ADA’s board meeting resolution dated 22.1.1999 at item 32 which is regarding delay in delivery of possession and rebate in case of deficiencies in the property. By the impugned order it was directed that the complainant will deposit the balance amount after the adjustment of the earlier amount deposited by the him. The complainant will be liable to pay the amount of interest also on the balance dues with in a period of 30 days and the opposite party will deliver the possession of the houseunder its rules. If the complainant does not deposit the balance dues after possession, then they will be at liberty to recover the balance amount along with interest as per rules. Simultaneously, a cost of
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Rs3000/- was imposed on the opposite party towards the legal expenses. On Non compliance of the order, the opposite party will have to pay interest @9% on Rs 3000/- from the date of order to the date of actual payment.
Being aggrieved with the order of the District Forum, the opposite party/appellant have filed this appeal. The appellant has admitted that the property in question was allotted to the complainant vide letter dated 12.10.1992 and its tentative cost was intimated to be Rs78,650/-. The allottee failed to deposit the amount as per terms and conditions but deposited only Rs46800/- on different dates without adhering to the time schedule provided in the allotment letter. The appellant has stated in the appeal that the complainant was informed vide letter dated 17.4.2002 to deposit the 1/3rd of the balance amount of Rs 183,593.17 i.e. Rs 61,197.72 by dated 30.4.2002 but the complainant failed to deposit the said amount.He was again informed vide letter dated 1.6.2002 to deposit the amount of Rs183,646/- by dated 14.6.1992 under OTS Scheme. The appellant has taken the one main ground in appeal that mere deposit of Rs46,800/- does not entitle the complainant for possession. The appellants have referred to a case BDA Vs VRINDA GUJARATI 2004(4) SCC 606in which Hon’ble Supreme Court has held that the Development Authorities are entitled to realize the balance cost along with penal interest, if allottee fails to adhere the terms and conditions of the allotment and had not deposited the amount as per time schedule of allotment letter. The appellant have taken the plea that the learned district forum have erred by ignoring the facts and law laid down in the referred case laws. Thus the appellant have prayed to set aside the impugned order.
The respondent has opposed the appeal and contested the case. The case was put up before us for hearing. We heard the arguments of the learned counsels of both the parties and perused the record on file. The learned counsel for the appellant emphasized that the complainant /respondent is a defaulter. He did not pay the installments of the allotted house as per time schedule of the allotment
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letters and its terms and conditions. So the possession can not be delivered to him. He failed to the comply with the terms and conditions of the OTS Scheme also though he was given opportunity to settle the matter. The learned counsel for the respondent argued that the appellant did not follow the ADA’s board resolution dated 22.1.1999 at item no 32 where in it has been provided that those who have deposited 50% amount of the cost of the house, they should be given possession of the house and in case when the the services are not complete, in those cases no penal interest should be charged. He also argued that the complainant falls under this category. He vehemently argued that there is no error in the impugned order and appeal is liable to be dismissed.
We heard the arguments of the learned counsels of both the parties and perused the record on file. We carefully read the judgment and order of the learned District Forum also. The learned forum have relied very much on the ADA’s board resolution dated 22.1.1999 at item no 32 where in it has been provided that those who have deposited 50% amount of the cost of the house, they should be given possession of the house and in case when the services are not complete, in those cases no penal interest should be charged. We have also gone through the same. But the learned forum has missed to note the conditions as mentioned in the proposal of the said resolution. In the proposal it is clearly mentioned that in case when 50% amount is collected with in a period of two months of allotment and rest 50% is recovered in quarterly/half yearly installments, the possession is to be delivered after the recovery of 50% amount. In the same proposal/resolution it is also mentioned that due to deficiencies in the development or construction, it is not possible to hand over the possession, and in those cases, the disputes arise and the allottees make delay in payment of installments. It is also provided in this proposal that if the allottee has deposited the installments falling due up to the date of possession, and there persist deficiencies in the services, then the allottee will not be asked to deposit further
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installments till these deficiencies are not rectified. But in the instant case the complainant did not deposit the 50% amount of the allotted house within a period of two months after the allotment of the house as is mentioned in the proposal and resolution No 32 of the ADA Board meeting dated 22.1.1999. He was allotted the house vide allotment letter dated 12.10.1992 but he deposited the 50% or more amount after a very much delayed time i.e Rs 4000/- on 4.11.1993, Rs 11000/- on 16.6.1994 and Rs 20000/- on 4.9.1997. He also did not deposit the installments falling due upto the period when he was asked to take over the possession. Since the allottee/ Complainant has not deposited the 50% amount within the period of two month of the date of allotment and was defaulter in depositing the installments falling due before the date of offer of possession, he does not lie in the category of such allottees as mentioned in the ADA’s Board’s resolution dated 22.1.1999 at item no 32. So he cannot be given benefit of the said resolution of ADA’s Board meeting on which the learned counsel of the respondent / complainant is stressing too much. Hence the learned District Forum have erred in awarding the benefit of the ADA’s Board’s 85th meeting resolution No 32.
In the light of above discussions we are of the view that the impugned order dated 1.5.2009 need modification. The cost of the said house will remain the same as per allotment letter . Since the allotted house was full of deficiencies so penal interest will not belevied upon the complainant/allottee. If the complainant is still interested in taking the possession of the allotted house on “As is Where is” basis and makes the full payment of the balance amount along with simple interest on it @16%, prior to the delivery of possession to him with in a period of 90days from the date of this judgment, the Appellant will deliver the possession within a period 15days thereafter. If he is not interested in making payment before possession, he can take the refund of his deposits with the ADA within a period of 30 days of this judgment. The complainant is entitled to get refund of the deposited amount along with the simple interest @16% to the complainant within
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a period of 15days of the date of his application of refund. The order of levying cost of Rs3000/- on the appellant/opposite party is also not justified and deserves to be set aside.
Order
The Appeal is allowed.The impugned order dated 1.5.2009 is modified as under: The cost of the said house will remain the same as per allotment letter. Since the allotted house was full of deficiencies so penal interest will not be levied upon the complainant/allottee. If the complainant is still interested in taking the possession of the allotted house on “As is Where is” basis and makes the full payment of the balance amount along with simple interest on it @16%, prior to the delivery of possession to him with in a period of 90days from the date of this judgment, the Appellant will deliver the possession within a period 15days thereafter. If he is not interested in making payment before possession, he can take the refund of his deposits with the ADA within a period of 30 days of this judgment. The ADA will refund the deposited amount along with the simple interest @16% to the complainant within a period of 15days of the date of his application of refund. The order of levying cost of Rs3000/- on the appellant/opposite party is also not justified and is set aside. The parties will bear their own costs.
(Udai Shanker Awasthi) (Mahesh Chand)
Presiding Member Member
S.k. st. c-5
