State Consumer Disputes Redressal Commission
Smt. Basanti Kotnala vs Dda on 31 August, 2022
FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL
COMMISSION
Date of Institution : 08.08.2016
Date of Reserving the order : 09.03.2022
Date of Decision : 31.08.2022
FIRST APPEAL NO-373/2016
IN THE MATTER OF
Mrs. Basanti Kotnala
W/o Mr A.R. Kotnala
R/o Flat No. 354-D,
J & K Pocket,
Dilshad Garden,
Delhi-110092
(Through: Mr. Aman Singh Bakhshi, Advocate)
.....Complainant/Appellant
VERSUS
Delhi Development Authority,
Through its Chairman,
Office of Director (Housing-I)/PIO
D- Block, 3rd Floor,
Vikas Sadan, I.N.A.,
New Delhi-110023
(Through: Mr. Praduman Kumar Aggarwal, Advocate)
.....Opposite Party/ Respondent
CORAM:
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
DISMISSED PAGE 1 OF 15
FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022
Present: Mr. Aman Singh Bakhshi, advocate learned counsel
for the appellant.
Mr. Praduman Kumar Aggarwal, advocate learned
counsel for the respondent
PINKI, MEMBER (JUDICIAL)
ORDER
1. The present appeal has been filed on 08.08.2016 impugning the order dated 20.05.2016 passed by the District Consumer Disputes Redressal Forum II by way of which Complaint Case No. 468/2006 was dismissed.
2. Arguments of either side have been heard and considered. We have carefully and thoroughly perused the material available on record.
3. The short question in controversy is, whether the District Consumer Disputes Redressal Forum II has rightly dismissed the complaint?
4. The Brief facts necessary for the adjudication of the present appeal are as under:-
"The appellant/complainant became owner of the MIG flat bearing No. 354 D Pocket J& K Dilshad Garden Delhi (third floor) on the basis of registered GPA dated 03.04.1998, which was executed in her favour by the previous owner.
The previous allottee had paid a sum of Rs 91,850/- (as registration charges and interest on it), Rs 32,132/- on 05.12.1990, Rs 51,300/- on 20.02.1997 and Rs 2,06,600/- on 22.10.1997 which had been acknowledged by the respondent/opposite party in its statement of dues dated DISMISSED PAGE 2 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 07.06.2006 sent along with letter dated 14.06.2006 to the complainant in response to the RTI application dated 29.05.2006.
The previous allottee Mr Hardesh Grover had deposited full amount of Rs 2,90,000/- in pursuance of the order passed by the Division Bench of the High Court of Delhi in LPA No. 38/1996 subject to the adjustment of the payments earlier made by the previous allottee on 23.10.1997 and occupied the flat as owner on 24.12.1997. As per the appellant/complainant, she had applied for the conversion of the flat from lease hold to free hold on 21.07.2004 and only then the respondent/opposite party served the demand notice dated 14.06.2006 claiming a sum of Rs 1,51,933/- from the appellant/complainant which was an unjustified as the original allottee had already paid the entire payment qua the cost of the flat i.e. Rs 2,90,000/- and the respondent/opposite party had accepted the same. The case of appellant is that she had given number of representations to the respondent but to no effect. The respondent does not have any legal right to recover Rs 1,31,933/- and a sum of Rs 20,000/- on account of restoration charges from the complainant. However, the respondent has not desisted itself from doing so despite service of legal notice dated 13.07.2006 on behalf of the appellant/complainant. The appellant/complainant had prayed in her complaint that respondent/opposite party be directed to cancel the demand of Rs 1,51,933/- with all interest, damages and penalty as raised in the notice dated 14.06.2006, to issue No Dues certificate against the said flat in favour of the complainant; to pay a sum of Rs 50,000/- on account of mental torture, pain and agony suffered by the complainant due to deficiency in service on the part of the respondent and to pay a sum of Rs 21,000/- as the cost of litigation to the complainant."
5. The respondent had contested before the District Forum inter alia DISMISSED PAGE 3 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 on the grounds that, in the order dated 07.04.1997 passed in the LPA, the High Court of Delhi had directed Mr. Hardesh Grover the previous allottee, to deposit the full amount of Rs 2,90,000/- subject to adjustment of payment already deposited; he made the part payment and the then Commissioner (H) vide his order dated 04.12.1997 agreed to implement the interim order dated 09.04.1997; as per final order dated 10.07.2001 the LPA had been dismissed as none was present on that day. In the year 2004, the complainant had applied for conversion of the flat from lease hold to free hold in the capacity of being its purchaser and the Accounts Wing of the respondent intimated that a sum of Rs 58,661/- on account of interest on belated payment and Rs 20,000/- on account of restoration charges were recoverable from the complainant before the conversion was allowed and the appellant vide order dated 07.11.2005 was asked to deposit the same. With the passage of time amount continued to increase and the same was calculated to Rs 1,31,933/- (as interest) as on 30.06.2006 and Rs 20,000/- recoverable at the time of requiring the information under the RTI Act in the month of June 2006, which the appellant/complainant had not paid. Therefore, request of the appellant/complainant for conversion of the flat from lease hold to DISMISSED PAGE 4 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 free hold could not be acceded to. Hence, there is no deficiency on the part of the respondent/opposite party.
6. The case of appellant is that demand is highly unjust, arbitrary, irrational, illegal, unlawful and contrary to the terms and conditions.
7. In the appeal the appellant has taken various grounds inter alia that the impugned order passed by the District Forum is erroneous, contrary to the provisions of law and perverse in nature; that the original allotment of flat was registered under the Scheme of Hire Purchase floated by the DDA/respondent from time to time and continued till allotment, as such the original allottee/appellant is entitled to the relief/compensation due to the cash down payment under the order of the Hon'ble High Court and he had to arrange funds in one go to comply with the order of the Hon'ble High court and faced hardship, difficulties, financial constraint, mental agony and burdened with the penal interest to arrange the money ; in case the allotment had been in the original category of Hire Purchase Scheme, he had to pay the cost of flat in installment during long period and on the other hand due to negligence and mistake of the respondent and its officials making double allotment, the original allottee/appellant had to suffer financially as DISMISSED PAGE 5 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 well as mentally for which the original allottee/appellant is entitled by way of monetary compensation and there is no question of levying interest at all on the basis of Cash Down Payment Scheme; as per the direction of the Hon'ble High Court, the original allottee/appellant had to bow down to the illegal demands and enhanced/increased cost of the flat due to the negligence of the respondent; as per the Cash Down Scheme until and unless whole payment including every charges have been paid by the allottee/appellant and received by the respondent, only then the physical possession of the allotted property is handed over to the appellant.
8. The counsel for the Appellant further submitted that the learned District Forum has wrongly concluded that there was a balance of payment of Rs 20,000/- while the original allottee/appellant had deposited a sum of Rs 2,90,032/- plus Rs 9,185/- up to 22.10.1997 as per the admission and calculation submitted by the respondent; it was not taken into consideration that the original allottee had already deposited the entire amount of Rs 2,90,000/- on 23.10.1997 in compliance of order passed in LPA No 38/1996 dated 09.04.1997 as there was no time frame directed in respect of deposition of payment and even there was no objection on behalf of DISMISSED PAGE 6 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 the respondent at the time of accepting the said total amount; the District Forum has referred to order dated 09.04.2007, whereas no such order exist at all, in fact it is an order dated 09.04.1997; the original allottee had already deposited the whole amount of Rs 2,90,000/- on 23.10.1997 which was duly admitted by the respondent, therefore, there is no question of further interest and restoration charges etc; the wrong observation has been made by the District Forum as the LPA was dismissed for non-prosecution vide order dated 10.07.2001 and the dismissal of LPA filed by the original allottee for non-prosecution would not confer any right to the respondent to raise further demand and/or interest and restoration charges etc. and would not affect the rights of the appellant; raising of demands of Rs 1,51,933/- vide their letter dated 07.06.2006 by the respondent DDA is totally unsustainable, unlawful, illegal and arbitrary, this information dated 29.05.2006 was received by the appellant under RTI Act wherein the appellant came to know that the further demand of Rs 1,51,933/- is due/pending on 07.06.2006 when the appellant applied for conversion of the flat from lease hold to free hold; the District Forum has dismissed the complaint without recording the true and correct facts; it has wrongly observed that in the year 2004 about DISMISSED PAGE 7 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 Rs 20,000/- were due to be paid towards the cost of the flat by the original allottee.
9. The respondent DDA has contested this appeal inter alia on the grounds that Mr Govind Ram Grover being a registrant under NPRS 1979 was declared successful for allotment of MIG flat bearing No. 155 D, Pocket J & K, Dilshad Garden on Hire Purchase basis, Demand cum allotment letter dated 06.09.1990 was issued to him who deposited Rs 31,132/-. It was intimated that flat has been occupied by someone else. Mr Hardesh Grover vide his letter dated 23.01.1991 informed that his father has already expired on 05.09.1986 and requested for transfer of registration in his favour on the basis of documents, the transfer of registration was allowed vide letter dated 15.12.1994; in the Mini draw held on 29.05.1995 MIG flat bearing No. 354 D, Pocket J & K, Third Floor, Dilshad Garden was allotted on Hire Purchase basis and demand cum allotment letter dated 18.12.1995 was issued to him; the disposal cost mentioned in demand cum allotment letter was Rs 2,90,800/- besides other charges as mentioned in the demand cum allotment letter; after adjustment of amount already paid by him he was required to pay Rs 51,295.94 within thirty days of the issue of demand cum allotment letter, further he had to pay 120 DISMISSED PAGE 8 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 installment of Rs 3,384.90 commencing from 01.01.1996; the amount in terms of demand cum allotment letter was not paid, therefore, the allotment stood cancelled automatically; Mr Hardesh Grover filed Writ Petition No 625/1996 before the Hon'ble High Court of Delhi, thereafter, an LPA No 38/1996 was filed which was admitted and wherein on CM No 488/1996 the following order was passed on 09.04.1997;
"On deposit of the full amount of Rs. 2,90,000/- subject to adjustment of payments earlier made by the appellant, possession of the flat in question shall be handed over to the appellant subject to final result of the appeal. Ex parte order dated 17th March 1996 is modified to this extent".
10. It is further submitted on behalf of the respondent that Mr Hardesh Grover paid a sum of Rs 2,06,600/- vide challan No 16931, thereafter, possession letter was issued to him subject to final outcome of the LPA and he took the possession; the LPA No 38/1996 filed by Mr. Hardesh Grover was dismissed by the Hon'ble High Court vide order dated 10.07.2001; the complainant vide application No 051088 dated 28.07.2004 applied for conversion of flat allotted to Mr. Hardesh Grover claiming that she has purchased the flat on the basis of agreement to sell and GPA etc dated 03.09.1998; as the possession was delivered to Mr. Hardesh DISMISSED PAGE 9 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 Grover in terms of interim orders and main petition was dismissed, therefore, DDA calculated the amount of interest and restoration charges and vide letter dated 10.05.2006 asked the appellant to pay a sum of Rs 1,06,445/- and restoration charges amounting to Rs 20,000/- totaling Rs 1,26,445/-; this amount was payable by 30.06.2006 failing which the complainant was liable to pay further interest; the complainant instead of paying the amount, filed the complaint before the District Forum which was contested by respondent DDA and the complaint has been rightly dismissed by the District Forum.
11. It has also been submitted on behalf of the respondent that the allotment was made and demand cum allotment letter was issued to Mr. Hardesh Grover, who failed to make payment in term of demand cum allotment letter; Mr Hardesh Grover was not entitled for possession of the flat, the possession letter was issued in terms of the interim orders passed by the Hon'ble High Court in LPA filed by Mr Hardesh Grover which was later dismissed, therefore, respondent DDA has rightly demanded the interest and restoration charges.
12. It has also been argued on behalf of the respondent that appellant is not a consumer within the meaning of section 2 (1) (d) DISMISSED PAGE 10 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 of the Consumer Protection Act as there is no hiring of service as defined under section 2 (1) (o) of the Consumer Protection Act, the allotment was made to Mr. Hardesh Grover, possession was delivered to Mr. Hardesh Grover in terms of the interim order and the main petition was dismissed, therefore, respondent DDA had calculated the amount of interest and restoration charges, vide letter dated 10.05.2006 respondent had asked the appellant to pay a sum of Rs 1,06,445/- and restoration charges amounting to Rs 20,000/- totaling Rs 1,26,445/-, this amount was payable by 30.06.2006 failing which complainant was liable to further interest.
13. The learned counsel for the appellant has relied on the following judgments:-
I. Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh AIR 2021 SC 4229 II. Rulda Ram vs. State of Himachal Pradesh & Ors.
ILR 2016 4 HP 634 III. State of U.P. & Ors. Vs. Jagdish Saran Agrawal & Ors.
(2009) 1 SCC 689
14. During the course of arguments learned counsel for the appellant has submitted that he rely on first two aforesaid DISMISSED PAGE 11 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 judgments and the third judgment titled as State of UP vs Jagdish Saran Agrawal & others supra is not relevant, therefore he is not relying on that judgment.
15. The first judgment relied by learned counsel for the appellant titled Laureate Buildwell Pvt. Ltd. Vs. Charanjeet Singh supra, is for refund of the consideration amount. With due respect, this authority is of no help to the appellant. There was no such LPA, no interim order pursuant to which the possession of DDA flat was handed over and later that LPA was dismissed.
16. The second judgment relied by learned counsel for the appellant titled Rulda Ram vs. State of Himachal Pradesh & Ors. supra is also not disputed. However, it is also not applicable in the facts and circumstances of the instant case. In that case Civil Writ petition no. 563/2002 High Court of Himachal Pradesh was disposed off pursuant to communication received on 14.10.2003 by learned Advocate General. However, on the same subject matter CWP no. 528/2003 High Court of Himachal Pradesh was withdrawn.
17. However, in the instant case, Mr. Hardesh Grover filed Writ Petition no. 625/1996 before the Hon'ble High Court of Delhi, thereafter, an LPA no. 38/1996 was filed which was admitted and DISMISSED PAGE 12 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022 wherein in CM no. 488/1996 possession of the flat was ordered vide order dated 09.04.1997 subject to deposit of the Rs. 2,90,000/-, subject to adjustment of payment earlier made and subject to final result of the appeal. LPA no. 38/1996 filed by Mr. Hardesh Grover was dismissed by the Hon'ble High Court of Delhi vide order dated 10.07.2001. Conversion was applied on 28.07.2004. Appellant had purchased the flat on 13.09.1998 i.e. during the pendency of LPA no. 38/1996, however, appellant is not party to the LPA no. 38/1996.
18. It is pertinent to mention that in LPA no. 38/1996 dismissed on 10.07.2001, it has been noticed by the Hon'ble High Court that no one has been appearing on behalf of the appellant since 22.03.2001. Even on 09.07.2001, Hon'ble High Court had deferred order to enable the appellant to appear before the Hon'ble High Court on 10.07.2001. It has also been observed that the appellant in LPA no. 38/1996 was not interested in prosecuting the appeal.
19. A perusal of record before us shows that the original allottee had to deposit Rs. 2,90,000/- qua the said flat in terms of order dated 09.04.2007. It is clear from the record that the original allottee paid an amount of Rs. 2,70,000/- to the respondent, which is not in consonance with the order of Hon'ble High Court.
DISMISSED PAGE 13 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022
Therefore, when the application for conversion was filed by the appellant, Rs. 20,000/- was due to be paid to the respondent for the said flat, which was not paid by the appellant. Hence, the demand raised by the respondent was justified and as per the terms and conditions of the conversion policy.
20. We are of the considered view that the learned District Consumer Disputes Redressal Forum - II has rightly held that the impugned demand made by the Opposite party/DDA was totally justified and there was no deficiency in service.
21. In view of the aforesaid, we are in agreement with the reasons given by the District Forum and fail to find any cause or reasons to interfere with the findings of the District Forum. Consequently, we uphold the judgment dated 20.05.2016 passed by the District Consumer Disputes Redressal Forum-II, New Delhi- 110016.
22. Hence, the present appeal is devoid of merits, therefore, dismissed.
23. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
24. No order as to cost.
DISMISSED PAGE 14 OF 15 FA-373/2016 MRS. BASANTI KOTNALA Vs DELHI DEVELOPMENT AUTHORITY D.O.D.: 31.08.2022
25. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
26. File be consigned to record room along with a copy of this Judgment.
27. Copy of this order be sent to District Consumer Disputes Redressal Forum-II for information.
(PINKI) Member (Judicial) (BIMLA KUMARI) Member (Female) PRONOUNCED ON 31.08.2022 DISMISSED PAGE 15 OF 15