BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 178 of 2018
Date of Institution: 05.06.2018
Date of Decision : 24.04.2019.
Amit Kumar s/o Ami Chand Sihag resident of H.No.489, Sector 20 HUDA Sirsa Tehsil & District Sirsa.
……Complainant.
Versus
The Chief Administrator, Housing Board, Haryana, Panchkula.
...…Opposite party.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH.R.L.AHUJA…………………………PRESIDENT
SH.ISSAM SINGH SAGWAL …… MEMBER
MRS.SUKHDEEP KAUR………….MEMBER
Present: Sh. Amit Sihag, Advocate for the complainant.
Sh. Sachin Nanda, Advocate for opposite party.
ORDER
The case of the complainant, in brief, is that complainant had applied for allotment of a Type-B in Sector 19, Sirsa and as per the policy of the ops, 10% of the total amount i.e. Rs.75,000/- were deposited by him with the op for allotment of the flat. That the complainant was selected for the allotment of flat bearing provisional registration No.576/SRS/T-B/HGB/GENR (Final Registration No.1195) and thereafter, the OP demanded further 15 % amount of Rs.1,15,000/- which the complainant had also deposited. That the Hon’ble High Court vide order dated 01.05.2012 had cancelled all the allotments of flats in CWP Nos.17910/2010 titled as Savita Chaudhary vs. State of Haryana and ordered for refund of the amount deposited by the candidates alongwith interest @ 10 % per month. That the OP had preferred an appeal before Hon’ble Supreme Court against the said order wherein the Hon’ble Supreme Court had upheld the order passed by Hon’ble High Court. That the OP had only refunded a sum of Rs.1,15,000/- alongwith interest @ 10 % per month and had not refunded Rs.75,000/- being 10 % of the deposited amount. On 20.08.2015, the name of the complainant was selected for the allotment of flat and the Op vide letter dated 26.10.2015 has demanded a sum of Rs.1,15,000/- + Rs.2,38,987/- (ELC) from the complainant within a period of 30 days but the complainant for some personal reasons does not want to get the allotment of flat and wants to surrender Type B flat and regarding this he moved an application to the OP and requested for surrendering of the flat and for refunding of the amount as per directions of Hon’ble High Court and also got served legal notice upon the OP but to no avail. The act and conduct of the Op clearly amounts to deficiency in service and unfair trade practice on its part. Hence, this complaint.
2. On notice, opposite party appeared and filed its written statement wherein it has been submitted that the complainant had been successful in draw, therefore, he was allotted final registration No.1195 and was asked to deposit another sum of Rs.1,15,000/- being 15 % of the tentative cost of flat as he had already deposited Rs.75,000/- being 10 % of the tentative cost of the flat. It has been further submitted that the said draw was challenged by some applicants by filing CWP No.17910 of 2010, CWP No.18940 of 2010 and CWP No.3050 of 2012 and all these CWPs were disposed of by a common order dated 01.05.2012 with the following directions :
“The said amount is required to be refunded as the entire process of draw of lots has been found to be unjustified. Consequently, the respondent Housing Board is directed to refund the amount to all applicants alongwith interest @ 10 % per annum to be compounded per month, in terms of the conditions of the brouchers as interest to be charged from the allottees in the event of default subject to the following conditions:
- The Board shall conduct fresh draw of lots from amongst the original applicants;
2.The Board shall give opportunity to all the unsuccessful applicants, if willing, to deposit the earnest money to be eligible for draw of fresh lots by way of advertisement in the daily news paper and in such other manner, which the Board considers appropriate;
3.After holding fresh draw of lots, the amount will be refunded to those candidates, who are unsuccessful in the draw of lots; and
4 The entire process is to be completed within three months. With the said observations and directions, all the writ petitions are disposed of accordingly.
Therefore, in compliance of that order Rs.1,15,000/- were refunded and the earnest money was retained for the purpose of fresh draw. The said order was challenged before Hon’ble Supreme Court but the SLP was dismissed on 26.08.2014. The complainant had been declared successful for the allotment of Type B flat in fresh draw in the year 2015, therefore, the OP had requested to deposit Rs.1,15,000/- plus Rs.2,38,987/- vide letter dated 26.10.2015 but when the complainant was not interested in the allotment, therefore, an amount of Rs.78,878/- was refunded to him vide cheque No.009107 dated 13.06.2016, which has been accepted by him but now he is claiming 10 % interest as per directions of Hon’ble High Court in CWP No.17910 of 2010. The said demand of the complainant is illegal because the amount had been refunded to him as per rules and regulations of the Housing Board, Haryana. Other contentions have been controverted and prayer for dismissal of the complaint has been made. 3. The parties then led their respective evidence by way of affidavits and documents.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. The Perusal of the case file reveals that the complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has reiterated all the averments made in his complaint. He has also furnished copy of cheque Ex.C1, allotment letter Ex.C2, letter for refunding of 15 % amount Ex.C3, legal notice Ex.C4 and postal receipt Ex.C5, another legal notice Ex.C6 and another postal receipt Ex.C7 and cheque Ex.C8. On the other hand, op produced affidavit of Sh.Rajbir Singh, Estate Manager Ex.RW1/A, in which he has reiterated all the facts mentioned in the written statement and also tendered copy of judgment dated 01.05.2012 passed by Hon’ble Punjab & Haryana High Court Ex.R1 and copy of order dated 24.03.2014 passed by Hon’ble Supreme Court Ex.R2.
6. It is undisputed fact between the parties that the complainant was allotted a type-B flat in Housing Board Colony, Sector 19, Sirsa and Rs.75,000/- were deposited by the complainant as earnest money and thereafter, the complainant had deposited Rs.1,15,000/-. It is further undisputed fact that the unsuccessful allottees had filed a writ petition before the Punjab & Haryana High Court and the Hon’ble High Court vide order dated 01.05.2012 had cancelled all the allotments of the flats including the allotment of the complainant and ordered for refund of the amount deposited by the candidates alongwith interests @ 10 % per month. It is also undisputed fact between the parties that against the said order, the OP had filed appeal before Hon’ble Supreme Court but the said SLP was also dismissed by the Hon’ble Supreme Court.
7. In compliance of the order dated 01.05.2012 passed by Hon’ble Punjab & Haryana High Court, the Op had made refund of Rs.1,15,000/- alongwith interest of 10 % to the complainant but thereafter, in the year 2014, the OP held draw of lots of the unsuccessful allottees as well as successful allottees in which the complainant was declared successful allottee and he was issued a letter to deposit amount of Rs.1,15,000/- + Rs.2,38,987/- (ELC) within a period of 30 days, but however, the complainant refused to take the flat in question rather made application for surrendering of the flat with a request to make the refund of amount of Rs.75,000/- alongwith interest which was lying deposited with the Op.
8. It is also an undisputed fact between the parties that the OP had also paid Rs.75,000/- alongwith interest to the complainant. But, the bone of contention between the parties qua the interest over the amount of Rs.75,000/- which remained deposited for the period from 2010 to 2014 with the OP. As per contention of the learned counsel for the complainant, the complainant is entitled to interest @ 10 % per month over the amount of Rs.75,000/- which remained deposited with the Op and the same was ordered to be refunded to the complainant by the Hon’ble High Court of Punjab & Haryana but despite that the Op did not make the refund of the amount well in time and made the refund in the year 2016 and paid the interest only from 2014 to 2016 and did not pay the interest for the period from 2010 to 2014, for which it was legally liable to pay.
9. On the other hand, learned counsel for the OP has contended that there was directions of the Hon’ble High Court to hold a fresh draw of lots of the successful and unsuccessful allottees which was held in the year 2014 and in the second draw of lots, the complainant was declared as successful allottee and she was asked to pay an amount of Rs.1,15,000/- + Rs.2,38,987/- as (ELC) which was not paid by the complainant and he had filed an application for surrendering of the flat. Consequently, the OP made refund of the amount of Rs.75,000/- with interest and nothing is due against the Op.
10. Both the parties have relied upon the judgment dated 01.05.2012 passed by Hon’ble High Court of Punjab & Haryana. In para No.1 it was observed that However, the fact remains that the successful candidates have deposited certain amount. The said amount is required to be refunded as the entire profess of draw of lots has been found to be unjustified. Consequently, the respondent Housing Board is directed to refund the amount to all the applicants alongwith interest @ 10 % per annum to be compounded per month, in terms of the conditions of the brochure as interest to be charged from the allottees in the event of default subject to the following conditions:
- The Board shall conduct fresh draw of lots from amongst the original applicants;
- ………
- ………
- ………
As per order of the Hon’ble High Court, the Board was under legal obligation to make refund of this amount of Rs.75,000/- to the complainant alongwith compounded interest @ 10 % per month but it had not been paid by the OP for the period from 2010 i.e. from the date of deposit of the amount till the date of second draw of lots. The perusal of this order further reveals that the name of the unsuccessful allottees were to be considered in the second draw of lots in case, they are interested, but, in the present case, the OP has not placed on record any other document from which it could be presumed that the name of the complainant was added in the list of candidates of the draw of lots at the request of the complainant or any consent letter was ever obtained by the Op from the complainant. Rather, it appears from the evidence of the parties that the OP, at its own, had added the name of the complainant in the list of applicants in the second draw of lots. Though the complainant was declared successful allottee in the second draw of lots but under no circumstance, the OP can compel the complainant to hold the flat and make the balance payment of the sale consideration of the flat. Rather, it is the sweet will of the complainant, he may or may not hold the flat as allottee but in the present case, he made application for surrendering of the flat, therefore, the Op has no right to retain the payment of the complainant for the period from 2010 to 2014 rather it was the legal obligation of the Op to pay interest @ 10 % as per order of the Hon’ble High Court, which has not been paid by the OP due to the reasons best known to it, which clearly amounts to deficiency in service and unfair trade practice on the part of the OP.
11. In view of the above discussion, we allow the present complaint and direct the opposite party to pay interest @ 10 % compounded interest per month from the date of deposit of the amount of Rs.75,000/- till the surrendering of the flat within a period of 30 days from the date of receipt of the copy of this order. We also direct the op to further pay a sum of Rs.5,000/- as compensation and Rs.2000/- as litigation expenses to the complainant. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced in open Forum. President,
Dated: 24.04.2019. District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
DCDRF, Sirsa DCDRF, Sirsa
