Per Shri A.Z.Khwaja, Hon’ble Presiding Member.

1..     Appellant Nagpur Housing and Area Development Board Nagpur has preferred the present appeal feeling aggrieved by the judgment and order passed by the learned District Consumer Forum of Nagpur Dt.20/10/2005 in Consumer Complaint No.131/2001, where by appellant was directed to return the amount of Rs.8,600/- and also to pay interest @ 15% p.a. over the amount of Rs.1,15,000/-(Appellant and respondent shall be referred by their original nomenclature)

2.    Short facts leading to the filing of the present appeal may be narrated as under :-

3.      Complainant Sunil Mor claims to be resident of Shivaji Nagar Nagpur and is a Chartered Accountant. O.P. namely Nagpur Housing and Area Development Board published advertisement in daily news paper in the month of May 1999 calling for applications for scheme of flats, shops and chambers styled as “Samrudhi Sankul” at Amravati Road, Nagpur. Complainant applied for one type ‘A’ flat in the scheme on 11/06/1999. Complainant also paid an earnest amount of Rs.1,00,000/- and Rs.15,000/- towards car parking to the O.P. and thereafter his application was duly numbered. Complainant subsequently came to know that the flat type ‘A’ was costly and the price of type ‘C” flat was much lower and was amounting to Rs.8,60,000/-. Complainant therefore requested the O.P. to change his flat from type ‘A’ to type ‘C’ and the same was accepted. Complainant was thereafter waiting for draw which was scheduled on  24/12/1999 but the out come of the draw was not informed to the complainant and after one year complainant received letter from O.P. for payment of balance installments. Complainant wanted to know the exact details about the flat which was allotted to him, but no information was given. On the contrary, O.P. again published advertisement in the daily news paper after period of 24 months and the price of the flats were kept same as existed in June 1999. Complainant also visited the site and was shocked to know that there was no progress in the work and so he sent the letter to O.P. on 15/05/2000 asking for the details of the draw, but no details were given. Complainant has alleged that thereafter he sent several letters to O.P., but O.P. failed to furnish the information. On the contrary complainant received communication on 18/10/2000, but the same was misleading. Complainant has alleged that there was no progress in the construction of the flat scheme and so he was constrained to request the O.P. to refund him the amount of earnest money paid by him alongwith expenses incurred alongwith interest. Complainant was accordingly paid an amount of Rs.1,60,400/- without interest by the O.P. on 28/11/2000 after deducting an amount of Rs.8600/-. Complainant has contended that there was no transparency in the work of O.P. and also there was total deficiency in providing proper and satisfactory Services. Complainant was made to wait for a long period and no stage wise schedule of the work of the scheme was provided. Complainant has contended that though he had received the earnest amount of Rs.1,06,400/- alongwith interest the complainant was also entitled for refund of amount of Rs.8600/- which was deducted illegally by the O.P.  O.P. failed to respond to the request of the complainant and so the complainant has filed the present complaint directing O.P. to pay an amount of Rs.50,450/- and also compensation of Rs.10,000/-.

4)      O.P. has appeared and filed elaborate written statement denying all allegations made in the complaint. O.P. has admitted that the complainant had earlier applied for type ‘A’ flat and thereafter had change his request and applied for type ‘C’ flat. O.P. has also admitted that complainant had paid the sum of Rs.1,15,000/- for type ‘A’ flat. O.P. has categorically denied the rest of the contentions. O.P. has denied that it had not given necessary information to the complainant. O.P. has admitted that the scheme was floated for higher income group category in ‘Samrudhi Sankul’. O.P. has also denied that the construction work was not started or there was no progress. O.P. has denied that the particulars of the flat were not provided to the complainant. O.P. had informed to the complainant by communication Dt.17/06/2000 that it was not possible to give number of the flat. O.P. has taken a plea that the complainant had himself expressed his intention to get refund of the amount and accordingly on 28/11/2000 amount of Rs.1,06,400/- were refunded to the complainant after deducting Rs.8600/- as per rules. O.P. has taken a plea that the name of the complainant was kept on the waiting list and the same was duly displayed. Complainant was also directed to make payment of Rs.95,000/- each in eight installments, but the same was not paid. Accordingly as per request of complainant the earnest amount paid by the complainant came to be refunded after deducting amount of Rs.8600/-. For the forgoing reasons O.P. has contended that complaint is not tenable and deserves to be dismissed.

5)      Learned District Consumer Commission Nagpur thereafter went through the copy of the complaint as well as the affidavit and documents on record. In the same way the learned District Consumer Commission also went through the written version filed by O.P. and documents and evidence adduced by both parties. After hearing the learned advocates of both parties and after going through the documents on record, the learned District Consumer Commission, Nagpur gave findings that the complainant was not only entitled for earnest amount of Rs.1,15,000/- but was also entitled for interest on the said amount @ 15% p.a. Learned District Consumer Commission, Nagpur also came to the conclusion that the deduction of Rs.8,600/- by the O.P. was not legal and proper and so complainant was entitled for the amount of Rs.8,600/- also. Accordingly learned District Consumer Commission Ngpur passed the order Dt.20/10/2005. Against this order Dt.20/10/2005, the present appellant has come up in appeal.

6)      I have heard Shri H.N,Verma, learned advocate for the appellant as the appeal had proceeded ex-parte. At the out set it is submitted by Shri H.N.Verma, learned advocate for the appellant that the appellant had already refunded the earnest amount to the complainant alongwith interest, but only dispute in the present appeal was restricted to the question of refund of Rs.8,600/- which came to be deducted as per the rules. Shri Verma, learned advocate for the  appellant has submitted that the learned District Consumer Commission had committed serious error in passing an order regarding refund of Rs.8,600/- which had came to be deducted as per the rules framed by Nagpur Housing and Area Development Board for allotment of flats. It is very much clear and also undisputed that the present appellant had refunded the earnest amount of Rs.1,15,000/- which was paid by the respondent/Complainant to the appellant and so the only question which remains for adjudication is regarding refund of Rs.8,600/- and that is the crux of the present appeal. In this regard Shri Verma, learned advocate has drawn my attention to the copy of advertisement floated by Nagpur Housing and Area Development Board for ‘Samrudhi Sankul’ Yojana. Shri Verma, learned advocate for the appellant has also drawn my attention to the rules prepared for allotment of flats in ‘Samrudhi Sankul’ and more particularly Rule 2 of the said rules. It is necessary to go through Rule 2 of the said terms and conditions. Rule 2 stipulates that in case the applicant is unsuccessful at the time of draw or his allotment is cancelled then the earnest amount paid by the applicant shall be returned after deducting 1% of the price or consideration of the flat. Shri H.N.Verma, learned advocate for the appellant had heavily relied upon this Rule ‘2’ of the advertisement. I have give anxious consideration to this contention and also carefully gone through Rule 2 of the advertisement. Rule 2 clearly shows that deduction of 1% was to be made from the amount of allottee when the allottee becames unsuccessful at the time of draw of lots or when his allotment is cancelled.  But in the present case before us it is clear that ‘C’ type flat was allotted to the applicant and the same was never cancelled. He was also not unsuccessful at the time of draw. On the contrary it is a specific case of complainant that even after payment of earnest amount, no progress had taken place in the construction by the O.P. and the details of the stages of construction were never provided to the complainant and therefore the complainant was constrained to inform that he was unable to pay the installments for want of satisfactory information and for non completion of project. Complainant has himself stated in para eight (8) that he was allotted the flat on 2^nd floor in ‘C’ type, but no further details were given. As such it is not the case that the allotment of complainant was cancelled. Apart from this, there is also no material on record to show that the Rules and Regulations framed by the Nagpur Housing and Area Development Board for ‘Samrudhi Sankul’ were made known to the complainant. I find that the Learned District Consumer Commission Nagpur has dealt with these aspects and has also given findings that the O.P. had indulged in deficiency in service on this count. Learned District Consumer Commission Nagpur has also given findings that the O.P. was liable to pay refund of Rs.8,600/- which was wrongly deducted. I do no see any reason to disagree with the said findings or any error in the same. In the same way the complainant is also entitled for interest as awarded by the learned District Consumer Commission Nagpur. In the light of the aforesaid submissions, I find myself unable to accept the contention advanced by Shri H.N.Verma, learned advocate for the appellant. I therefore hold that the appeal filed by the appellant Nagpur Housing and Area Development Board is devoid of any substance and so I pass the following order.      

                                              // ORDER //

1. Appeal is hereby dismissed.
2. Appellant to bear its own cost as well as cost of respondent.
3. The Copy of  order be furnished to both parties free of cost.