STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(COMPLAINT CASE NO.31 of 2009)

                                                          Date of Institution: 20.08.2009

                                                          Date of Decision  : 06.10.2010.

The Silverton Cooperative House Building (2^nd) Society Limited, c/o SCF No.21, Sector 18-C, Chandigarh  through its President.

……Complainant

V e r s u s

1.                 The Finance Secretary U.T., Chandigarh Administration, Deluxe Building, Sector 9, Chandigarh.

2.                 The Chairman, Chandigarh Housing Board, Chandigarh.

3.                 The Registrar, Cooperative Societies, U.T., Chandigarh, Sector 17, Chandigarh.

              ....OPs.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        MRS. NEENA SANDHU, MEMBER

                        SH. JAGROOP SINGH MAHAL, MEMBER.

Argued by:          Sh. S.S. Khetarpal, Advocate for the complainant.

                    Sh. Durgesh, Clerk on behalf of OP-1

                    Sh. Indresh Goel, Advocate for OP-2/CHB

PER JAGROOP SINGH MAHAL, MEMBER.

1.                 The present complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) has been filed by the complainant alleging that it was registered as a Cooperative Society in 1983 vide registration No.389 but subsequently it was bifurcated in two parts and those who were allotted land were described as the first society and those who were not allotted any land formed a separate society i.e. the complainant, which was allotted registration No.679-A. The present complaint was filed in view of the resolution dated 8.7.2008 authorizing the President of the Society to file the compliant. 

2.                 The Chandigarh Administration framed a scheme known as the Chandigarh Allotment of Land to the Cooperative Societies Scheme, 1991 which was notified on 28.5.1991.  Under the scheme, the societies were to be allotted land by the Chandigarh Housing Board/OP-2 @ Rs.750/- per sq. yard for construction of multi storeyed flats for its members.  The Chandigarh Housing Board demanded 25% of the price of the land as earnest money which was challenged by several societies through CWP No.1454 of 1992 on the ground that only 10% of the price of the land should be  demanded as earnest money.  In that writ petition an interim order dated 11.5.1992 was passed by the Hon’ble Punjab and Haryana High Court reducing the earnest money to only 10%.  However, ultimately the said writ petition was dismissed on 18.12.1996 and the Chandigarh Housing Board asked the societies to deposit 25% of the premium of land alongwith interest @ 18% per annum on the delayed payment.  The amount of Rs.1,60,69,128.22 deposited by the members was transferred to the account of the Chandigarh Housing Board.  In the year 2000, the Chandigarh Administration enhanced the price of land from Rs.750/- to Rs.2,500/- per sq. yard and demanded the difference of 25% of the price of land at hiked rates. The complainant asked its members to deposit the difference alongwith Rs.350/- per sq. yard as charges for allotment of land on free hold basis.  Only 133 members of the society deposited the amount and 136 (who now constitute the complainant society) expressed their inability to deposit the difference.  They requested for refund of the entire amount deposited with the Chandigarh Housing Board. The Chandigarh Housing Board refunded the earnest money of 96 members as given in the list (Annexure C-7). But the amount of interest collected @ 18% per annum was not refunded to them.  The remaining 40 non allottees as mentioned in the list Annexure C-9 have neither been refunded their earnest money nor the interest portion deposited by them. The complainant had been requesting the OPs to refund the amount alongwith interest but when they failed to refund the same notice was issued to the OPs and ultimately the present complaint was filed.

3.                 OPs 1 & 3 admitted the floating of the scheme and the subsequent events as mentioned in the complaint.  They denied if the Chandigarh Housing Board (OP-2) has not refunded the amount to non allottee members.

4.                 The Chandigarh Housing Board OP-2 opposed the complaint alleging that they do not recognize the complainant claiming to be the 2^nd Silverton Society which was not their consumer and they have no record of the members of the said society.  It, however, admitted the floating of the scheme vide notification dated 28.5.1991 and receipt of the money from the Silverton Cooperative House Building Society.  It was admitted that the writ petition was filed against their demanding 25% of the price of the land as earnest money but it was subsequently dismissed.  They also admitted that the rate of land was enhanced from Rs.750/- per sq. yard to Rs.2,500/- per sq. yard and only 133 members of the society deposited the difference of the said amount whereas the remaining were allowed to seek the refund of the earnest money. It was admitted that the earnest money was refunded to many of the members and the amount was also sent to President of the Society through a cheque.  Their contention is that the refund claimed by the President for 40 non allottee members is not genuine and contains many names and particulars which have already been refunded by the Housing Board.  The  interest amount was not refunded to the 96 members because the interest portion did not form part of the earnest money.  Their contention is that the non allottee members who have not received the refund can claim the same through the President, if the President supplies a bonafide and correct list because the list supplied earlier contained several members who have already received the refund through the President. 

5.                 Both the parties were given opportunity to produce evidence in support of their contentions.

6.                 We have heard the learned counsel for the contesting parties and have perused the evidence on record.

7.                 The ld. Counsel for the complainant has argued that the Silverton Cooperative House Building Society contained 269 members out of which only 133 deposited the full amount of earnest money as demanded by the Chandigarh Housing Board and ultimately the land was allotted to those members whereas the remaining 136 members did not deposit the difference and demanded refund of the amount. In this manner the said society got bifurcated in two portions – one comprising those members to whom the land was allotted and the second those members to whom the land was not allotted.  The Registrar Cooperative Societies, UT, Chandigarh registered the second society and a new registration No.679-A dated 21.6.2004 was given to it.  The complainant society, therefore, represents those members who did not deposit the full amount of earnest money and wanted the refund of the amount deposited by them.  It is a registered society and is offshoot  of the original society and this society has passed a resolution, copy of which is Annexure C-1, authorizing its President to file the present complaint. The complainant has, therefore, the locus standi to file this complaint.

8.                 It is admitted by the OPs that the earnest money has been refunded to 96 members as given in the list (Annexure C-7) but the interest recovered from them @ 18% per annum in view of the interim orders dated 11.5.1992 of the Hon’ble High Court has not been refunded because the said amount does not form part of the earnest money.   A similar question arose in a case Lt. Col. Avtar Singh Vs. Chandigarh Housing Board in complaint No.533 of 2000 decided by the ld. District Consumer Redressal Forum-II, Chandigarh on 7.5.2003. The OPs were directed to refund the said amount also alongwith interest @ 8% per annum from the date of respective deposits till payment.  The OPs filed an appeal before this Commission and a modification was made that the interest shall be payable from the date on which the earnest money was paid to the complainant. The revision filed by the Chandigarh Housing Board/OP was dismissed and they, therefore, filed SLP before the Hon’ble Supreme Court. The Civil Appeal No.8203 of 2010 has been decided by the Hon’ble Supreme Court vide its order dated 22.9.2010 and an attested copy of the same has been produced by the ld. Counsel for the complainant.  The order of this Commission has been upheld meaning thereby that the OPs are liable to refund the earnest money amount also and they are further liable to pay interest @8% per annum on the amount withheld by them since the date on which the amount was refunded by them to the applicants/non allottees.  In view of this law, the OPs were not  justified in retaining the interest portion of the amount deposited with them.

9.                 There is another group of 40 persons in the society to whom neither the earnest money nor the interest collected from them has been refunded. The ld. Counsel for the OP/Chandigarh Housing Board has argued that they are ready to refund the amount provided the President of the Society supplies a bonafide and correct list because the list supplied earlier contained several members who have already received the refund through the President.  The contention of the ld. Counsel for the complainant is that in fact they have already provided the said list (Annexure C-9) through a letter dated 29.4.2009 which was received in the office of OP-2 vide Annexure A.  Since full particulars of the members have been given therein, it is now for the Chandigarh Housing Board to inform the complainant as to how the said list is not correct.

10.             The Chandigarh Housing Board had refunded the earnest money to about 34 members vide orders dated 16.10.2000 (Annexure R-4).  Thereafter it refunded the amount in 2001 and 2003 also. We are, therefore, of the opinion that the Chandigarh Housing Board would be liable to pay interest w.e.f. 16.10.2000 on the amount not refunded by them because when the interest amount should have been refunded to the members mentioned in the list (Annexure C-7) and also the whole amount should have been refunded to other 40 members to whom no payment has been made so far.

11.             In view of the above discussion we are of the opinion that the present complaint succeeds and the same is accordingly allowed with costs.  The OP-2/Chandigarh Housing Board is directed to refund the earnest money amount and the amount of interest to all the 136 members of the complainant society alongwith interest @ 8% per annum w.e.f. 16.10.2000 till the amount in full is paid to the complainant society or its respective members. The payments already made shall be adjusted.  The payment alongwith interest and litigation costs of Rs.5,000/- shall be made within 90 days from the date of receipt of copy of the order  failing which the Chandigarh Housing Board would be liable to pay interest @ 12% per annum since the filing of the present complaint i.e. 20.8.2009 till its actual payment to the Society/its members.

                    Copies of this order be sent to the parties free of charge.

Pronounced.

6^th October, 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

hg

STATE COMMISSION

(Complaint Case NO.31 OF 2009)

Argued by:          Sh. S.S. Khetarpal, Advocate for the complainant.

                    Sh. Durgesh, Clerk on behalf of OP-1

                    Sh. Indresh Goel, Advocate for OP-2/CHB

Dated the 6^th  day of October, 2010.

ORDER

                    Vide our detailed order of even date recorded separately, this complaint has been allowed.

(JAGROOP SINGH MAHAL)         (JUSTICE PRITAM PAL)     (NEENA SAHDHU)

                MEMBER                                      PRESIDENT                       MEMBER