RP No. 1170 to 1172 of 2016

RP No. 1889 to 1891 of 2016

PRONOUNCED ON : 3^rd JANUARY 2017

O R D E R

PER DR. B.C. GUPTA, MEMBER

          The six revision petitions detailed in the heading above, arise out of a common impugned order dated 18.01.2016, passed by the Delhi State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in three appeals before them, namely, FA No. 412/2012 filed by Raj Veer Singh, FA No. 382/2012 filed by Suman Lata, FA No. 383/2012 filed by Manoj Kumar Sharma respectively, against the respondents/present petitioners who are the State Bank of India, GT Road, Shahdara, Delhi (hereinafter referred to as the Bank) and the Greater Noida Industrial Development Authority, Greater Noida City, (hereinafter referred to as the Authority).  Three of the revision petitions have been filed by the Bank against the impugned order of the State Commission, while the other three have been filed by the Authority.  The three complainants detailed above filed consumer complaints before the District Forum, vide CC No. 197/2011 in case of Suman Lata, CC No. 260/2011 in case of Manoj Kumar Sharma and CC No. 244/2011 in case of Raj Veer Singh, but the said Forum dismissed these complaints, holding that there was no deficiency in service on the part of the Opposite Parties (OPs), the Bank as well as the Authority.  The complainants challenged these orders by way of appeals before the State Commission, all of which were allowed in favour of the complainants.  It is against these orders of the State Commission that the OPs are before this Commission by way of the present revision petitions.

2.       In all these cases, the facts as well as the issues involved are that the Greater Noida Industrial Development Authority floated a housing scheme named BHS-13, for allotment of flats in various sectors of Greater Noida City and published a brochure for inviting applications under the said scheme, by which a registration amount of ₹3,70,000/- was to be paid by the applicants for booking the said flats.  The OP Bank came out with a loaning scheme, offering to advance loans to the applicants for flats, as per which, a short term loan of ₹3,70,000/-, i.e., the application money was to be given to such applicants.  Accordingly, the complainants made applications through the Bank to the Authority by depositing ₹3,70,000/-, after raising loan of the said amount from the Bank.  It was stipulated that if allotments were made under the scheme, the allotment letters would be sent by the Authority to the Bank for handling over the same to the allottees/applicants.

3.       The core issue that has given rise to the dispute between the parties is that under the terms and conditions of the allotment, there was a ‘surrender’ clause, under which, if the said allotment, if made, was to be surrendered within 30 days from the date of allotment, 10% of the registration money was to be forfeited and the balance amount was to be refunded to the applicants without interest.  In case of surrender after 30 days of allotment but within 45 days, under payment plan SB-5.2 or 90 days under payment plan SB-5.1, 50% of the registration money was to be forfeited and the balance was to be returned to the complainant without interest.  However, if the surrender was to be made after the said period of 45/90 days, but before six months, 10% of the total premium of the flat was to be forfeited.  In case of surrender beyond six months, the entire money was to be forfeited.  In all these three cases, the allotment of flats was made by the Authority and allotment letters were sent to the Bank for further handing over to the complainants.  All the three complainants surrendered their flats on various dates, but certain time was consumed in the issue and dispatch of allotment letters by the Authority, the receipt of said letters by the Bank and giving intimation and handing over the same to the complainants.  The case of the complainants is that the surrender period of 30/45/90 days etc. should be counted from the date, they received the allotment letters physically from the Bank, whereas the case of the Authority is that the said surrender period is to be counted from the date of the allotment letters issued by the Authority, regardless of the date of receipt of the said letters by the allottees. 

4.       In these three cases, obviously, the flat numbers and sectors where allotments were made are different, but the date of draw of lots, allotment, dispatch and receipt of allotment letters are the same.  It has been stated that the draw of lots was held by the Authority on 24.01.2011 and information about the allotment of flats was displayed on the website of the Authority on the internet on the same day.

5.       The Authority have also taken the stand that the complainants had got information about the said allotment of flats through internet on 24.01.2011 itself and hence, they could have exercised their option of surrender from the date of display of the information on the website.  As per the version given by the Authority, separate allotment letters dated 11.02.2011 in these cases were sent to each successful applicant, but these letters were dispatched on 18.02.2011.  The address of the complainants in question was that of the Bank that had advanced loans to them, as per the understanding between the complainants and the Bank and hence, their allotment letters were sent to the Bank.   As per the version given by the Bank, these allotment letters were received by them only on 09.03.2011.  The Bank has stated that they informed the borrowers on phone, whose phone numbers were available with the Bank.  The rest of the borrowers were given intimation on their visit to the petitioner Bank.  In the three cases in question, the information about the allotment letter was provided to the allottees/complainants on 16.03.2011.  On 18.03.2011, the allotment letters were also handed over to the allottees. 

6.       In the case of Suman Lata, the letter of surrender was received by the Authority on 23.03.2011, as per the version given by the complainant as well as by the Authority.  According to the Authority, since the date on the letter of allotment was 11.02.2011, the surrender was received beyond a period of 30 days, but before 45 days and hence, the Authority forfeited 50% of the application money and refunded the rest of the amount through cheque No. 196993 drawn on Bank of Baroda, Greater Noida, sent on 05.05.2011.

7.       In the case of Manoj Kumar Sharma, the surrender was made on 10.05.2011 as stated by the Authority.  The complainant also stated in his Memo of Appeal, filed before the State Commission that he surrendered the flat to the Authority on 10.05.2011 after liquidating the amount due to the Bank.  Since the surrender application in this case was made beyond a period of 45 days, the Authority forfeited 10% of the total cost of the flat, i.e., ₹2,87,600/- and the balance amount was refunded to the complainant through cheque No. 199481 drawn on Bank of Baroda, Greater Noida. 

8.       In case of  Raj Veer Singh, as per the version of the Authority given in RP No. 1172/2016, the complainants surrendered the allotment of flat on 28.03.2011.  The complainant has also stated in his complaint that he submitted the application in the office of the Authority on 28.03.2011, although he has stated in the later part of his complaint that the flat was formally surrendered on 09.05.2011.  In this case also, the Authority forfeited 50% of the application money and refunded the balance amount vide cheque No. 196993, drawn on Bank of Baroda, Greater Noida. 

9.       In nutshell, the case of the complainants is that the period during which the applicants took decision to surrender the flats should be counted from the date of receipt of the allotment letters physically by them and not from the date of allotment or allotment letter etc.  As stated earlier, the District Forum in the orders passed by them on different dates, upheld the version of the OPs and dismissed the complaints, saying that there had been no deficiency in service by them.  However, the State Commission in appeals set aside the order passed by the District Forum and vide impugned order directed as follows:-

“a.  GNIDA Authority shall refund to each of the complainants 50% of the earnest money deposit alongwith interest @ 18% p.a. from the date each complainant submitted his application for surrender of the flat upto the date of its realisation.

b.   Compensation to the tune of Rs. 2.5 lacs each shall be paid to each of the complainants separately by GNIDA Authority and State Bank for causing harassment, inconvenience, sadness, anguish and mental agony.

c.   GNIDA Authority and State Bank shall pay litigation charges of Rs. 50,000/- each to each of the complainants.

d.   GNIDA Authority and State Bank shall deposit a sum of Rupees 25 Lacs each (a consolidated amount for all the three appeals) in Consumer Welfare Fund of the State maintained by this Commission for the loss caused to those flat buyers who have been declared successful in the draw of lots and have not come to the Consumer Fora and are not identifiable conveniently.”

10.     During hearing, the Ld. Counsel for the Bank stated that they had entered into loan agreement with the complainants for the purpose of granting short term loan to them to meet the requirement of the application money.  The Bank had no privity of contract with the Authority and hence, they were not concerned with the terms and conditions stipulated in the allotment made by the Authority to the complainants, including the conditions governing the surrender of the flats.  There had been no deficiency in service on the part of the Bank because the allotment letters were received by them on 09.03.2011 and thereafter, they took steps to inform the allottees at the earliest opportunity available to them.  The Ld. Counsel has drawn attention to the copies of the agreement etc. entered with the complainants in this regard and stated that they had nothing to do with the decision of the Authority to forfeit a part of the application money.  The Ld. Counsel also stated that the allottees were aware of the said allotment from the website etc. and in the case of Manoj Kumar Sharma, he had mentioned in para 2 of the Memo of Appeal filed before the State Commission that he came to know through internet that he had been allotted a flat in the said scheme.

11.     The Ld. Counsel for the Authority stated that there had been no deficiency in service on their part as well, as they had sent the allotment letters to the address of the Bank as indicated in the applications filed by the complainants before them.  It has been explicitly stated in the terms and conditions in the brochure of the scheme that “surrender” of the flats allotted could be made subject to certain conditions mentioned therein.  The Authority had acted strictly in accordance with these conditions, while taking decision to refund the balance amount to the complainants after taking into account the number of days, after which the surrender had been made from the date of letters of allotment.  Moreover, as per the agreement entered between the complainants and the Bank, the allotment letters as well as the refund amount were required to be sent to the Bank only and the Authority had duly complied with these conditions.   

12.     Per contra, the Ld. Counsel for the complainants argued that the time period of 30/45/90 days allowed for the surrender of flats as specified in the conditions in the brochure of the Authority, should be counted from the date, the original allotment letters were duly received by the complainants.  In the present cases, it had been admitted by the Authority that the allotment letters dated 11.02.2011 were dispatched on 18.02.2011, meaning thereby that there was a delay of 7 days in the dispatch of the said letters.  Further, it is an admitted fact that the allotment letters had been received by the Bank on 09.03.2011, implying that further time of about 20 days had been lost. After the receipt of these letters, the Bank took time in informing and sending letters to the complainants.  The complainants were, therefore, not concerned at all with the time taken during dispatch and receipt operations and during transit.  The interest of justice demands that period of 30/45/90 days etc. should be counted from the date of actual receipt of letters.  The Ld. Counsel further stated that the contention of the OPs that the said allotment was within the knowledge of the complainants and that they had means to know the same from the website etc. was not relevant, because the surrender was to be accepted by the Authority only, when the original letter alongwith receipt etc. was deposited with the Authority.  The Ld. Counsel further argued that the Bank was acting as an agent of the Authority and they were supposed to know about the terms and conditions of the allotment.  Moreover, the Bank had not explained the reasons as to why they advanced loan for the purpose of registration money only, and not for the value of the flats.  Further, the Bank changed the mailing address of the complainant on their own, so as to ensure that the allotment letters were sent to the Bank and not to the complainants directly. 

13.     The Ld. Counsel for the complainants further argued that as per the provisions of the Contract Act, the communication of an “offer” was complete only, when the allotment letter was duly received by the complainants.  It was evident, therefore, that the time of 30/45/90 days should be counted from the date, the allotment letters were actually received.  The Ld. Counsel has drawn attention to an order passed by this Commission on 05.08.2014 in RP No. 552/2013, “Punjab State Federation of Cooperative House Building Societies Ltd. (Housefed) vs. Kuljit Singh & Anr.”, in support of his arguments that the period of 30/45/90 days etc. should be counted from the date of knowledge to the respective recipient.  He has also drawn attention to an order passed by the Haryana State Commission, in “Estate Officer, HUDA vs. M/s. IOTA Industries” [FA No. 152(R)/92 decided on 12.05.93]. A similar view had been taken by the Delhi State Commission in “Sudha Gargia vs DDA” [II (2005) CPJ 307].

14.     In response, the Ld. Counsel for the Bank submitted that in the appeal filed before the State Commission by Manoj Kumar Sharma complainant, it had been admitted that he came to know about the allotment from the internet about the draw held on 24.01.2011 and hence, the allotment was very much within the knowledge of the complainants.

15.     I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me. 

16.     In so far as the factum of making applications by the complainants to the Authority, after raising loan for the registration money from the Bank, as well as the dates of allotment letters, the dispatch and receipt of the allotment letters and subsequent information to the complainants are concerned, the facts are more or less admitted by the parties in the present litigation, as is evident from the preceding paragraphs.  The main point at controversy relates to the issue, whether the period of 30/45/90 days for the surrender of these flats as mentioned in the terms and conditions of the allotment, has to be counted from the date of the allotment letters sent by the Authority, OR from the date of actual receipt of the said letters by the complainants.  In this regard, it shall be worthwhile to quote the conditions relating to surrender, as contained in the brochure as below:-

“SURRENDER

J-1    In case of surrender before allotment/draw of lots, the entire Registration Money deposited shall be refunded without interest.

J-2    In  case  of  surrender  after  the  allotment/draw  of  lots, but  within  30  days  from  the date  of  allotment,  10%  of  the  Registration  Money  shall  be  forfeited  and  balance amount deposited shall be refunded without interest.

J-3    In case of surrender after 30 days of allotment but before 90 days (for Payment Plan B-5.1)  and  within  45  days  of  allotment  (under  Payment  Plan  B-5.2),  50%  of  the registration  money  will be  forfeited  and  balance  amount  shall  be  refunded without any interest. No separate notice shall be given for the same.

J-4    In case the allotment is sought to be surrendered after 90 days (under Payment Plan B-5.1) and after 45 days (under Payment Plan B-5.2) but before 6 months from the date of allotment, 10% of the total premium of flat shall be forfeited. Balance amount, if any, shall be refunded without any interest. No separate notice shall be given for the same.

J-5    In  case  of  surrender  after  six  months from  the  date  of  allotment,  entire  deposited money shall be forfeited.”

17.     It has been stipulated in the above conditions that the time of 30/45/90 days etc. has to be counted from the “date of allotment”.  The stand taken by the Authority is based on a literal meaning of the above clause that the period allowed shall commence from the date of allotment letter.  It is seen, however, that a considerable time is taken in sending such letters and also in transit, before the letters actually reach the hands of the allottees.  In the present cases, it is admitted that the allotment letters dated 11.02.2011 were dispatched on 18.02.2011, meaning thereby that a time of 7 days was taken in the office of the Authority itself in the dispatch of the letters.  Further, the allotment letters were received in the office of the Bank on 09.03.2011, implying that a further time of 20 days was lost in transit only.  The Bank also took their time in giving intimation and handing over the letters to the complainants.  In case, the time of surrender is taken from the date of allotment letter, i.e., 11.02.2011, it is abundantly clear that the letters physically reached the hands of the allottees, well after a period of 30 days.  The purpose and intent behind mentioning a specific time period in the conditions governing the scheme, seems to be, that a clear time of 30/45/90 days should be available to the allottee, within which, he could consider the issue and take a conscious decision, whether to retain or surrender the allotment.  It would be justifiable, therefore, to conclude that the said period should commence when the actual allotment letters came to the hands of the allottees. 

18.     It has been argued on behalf of the Bank as well as the Authority that the factum of allotment came to the knowledge of the complainants/allottees, as they had put the entire information on the website, after the draw of lots was held.  In the case of Manoj Kumar Sharma applicant, he had admitted that he came to know about the allotment from the website.  However, it may be stated here that even if the complainants were aware that allotment of flats had been made in their favour, they would not be in a position to take a conscious decision, unless the allotment letters containing the actual terms and conditions reach their hands.  The OPs, therefore, cannot derive benefit from the fact that information about the allotment was loaded on the website and hence, it was very much within the public domain including the complainants. 

19.     The State Commission has rightly relied upon the orders made in “Estate Officer, HUDA vs. M/s. IOTA Industries” [supra]” that the period of 30 days would start from the date of receipt of the allotment letter and not from the date of issue of the letter of allotment.  A similar view has been taken by the Delhi State Commission in ““Sudha Gargia vs DDA” [Supra]. Both these decisions have been further fortified by a decision of this Commission in “Punjab State Federation of Cooperative House Building Societies Ltd. (Housefed) vs. Kuljit Singh & Anr. (supra)”.

20.     The Ld. Counsel for the complainants stated that there was deficiency in service on the part of the Bank, because they had refused to advance loan for the value of the flat, which forced one of the complainants to surrender the said flat due to financial constraints.  This contention of the complainant is not justified in law, because the advancement of any loan etc. is governed by mutual agreement between the Bank and the loanee.  Even if the Bank had refused to advance loan for the value of the flat, it cannot be construed as any deficiency in service on their part in any manner.

21.     Looking at the entire facts and circumstances of this case, it is just and proper that the Authority should consider the time taken for surrender by the individual complainants from the date, the allotment letters were physically received by them.  In the case of all the complainants, as per the version of the Bank itself, the allotment letters were provided to the complainants on 18.03.2011. 

22.     In the case of Suman Lata complainant, the surrender was made on 23.03.2011 as admitted by the Authority.  Evidently, the surrender was made within 30 days of the receipt of the allotment letter.  The said complainant was, therefore, entitled to get the refund from the Authority after making deduction of 10% of the registration amount.  Since 50% of the registration amount has already been remitted by the Authority to the complainant, the balance 40% shall be paid by the Authority within a period of four weeks from today. 

23.     In the case of Manoj Kumar Sharma complainant, the surrender of flat has been made admittedly by the complainant on 10.05.2011.  In his consumer complaint, Manoj Kumar Sharma stated that the Bank had sent the allotment letter to him on 18.03.2011, which was received by him on 24.03.2011.  It is clear, therefore, that in this case, the surrender of the flat has been made within 48 days (counted from 24.03.2011) of the receipt of the allotment letter, which is more than 45 days of the said allotment.  As per the terms and conditions stated above, 10% of the total value of the flat was to be forfeited.  The Authority has already returned the amount to Manoj Kumar Sharma, after deducting the amount equivalent to 10% of the total value of the flat.  Nothing more is, therefore, required to be paid to the complainant in this case and his consumer complaint stands dismissed. 

24.     In the case of Raj Veer Singh, it has been admitted by the Authority that the surrender was made on 28.03.2011.  It is evident that the surrender was made within 30 days of the receipt of the allotment letter by Raj Veer Singh.  The Authority was, therefore, required to return the balance amount of registration amount, after deducting 10% of the registration amount only and not 50%.  Since 50% of the registration amount has already been refunded, the Authority is directed to refund 40% of the registration amount within a period of four weeks from today.

25.     In so far as the impugned order passed by the State Commission is concerned, there is no justification for the grant of compensation of ₹2.50 lakh to the complainants separately by the Authority and the Bank and the said direction given by the State Commission is set aside.  The direction given by the State Commission for grant of litigation expenses of ₹50,000/- by the Authority and the Bank to each of the complainants is also set aside.  Further, the direction given by the State Commission to deposit a sum of ₹25 lakh each by the Authority and Bank is without any rational basis and seems to have been made without any due application of mind.  The said directions are also set aside.

26.     It may be stated further that there is no deficiency in service on the part of the Bank, as they received the allotment letters on 09.03.2011 at their address, in accordance with the terms and conditions decided between them and the complainants at the time of obtaining the loan for the registration amount.  The Bank made efforts to inform the allottees about the same and also sent the allotment letters to them on 18.03.2011.  Further, it was the discretion of the Bank whether to advance a loan for the entire value of the flat to the complainants or not.  It is held, therefore, that there is no deficiency in service on any ground in so far as the Bank is concerned.

27.       In nutshell, these revision petitions are disposed off with directions to the Greater Noida Industrial Development Authority for remittance of balance 40% of the registration amount to Suman Lata and Raj Veer Singh within a period of four weeks from today.  In case, the Authority fails to make the payment within the scheduled period, they shall be liable to pay interest @12% p.a. on the said amount for the delay in making the payment.  The complaint filed by Manoj Kumar Sharma stands dismissed.  The complaint against the Bank in all the cases also stand dismissed.  There shall be no order as to costs.