State Consumer Disputes Redressal Commission
Savitri Devi vs L D A on 25 April, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/2012/331 ( Date of Filing : 21 Feb 2012 ) (Arisen out of Order Dated in Case No. of District State Commission) 1. Savitri Devi a ...........Appellant(s) Versus 1. L D A A ...........Respondent(s) BEFORE: HON'ABLE MR. JUSTICE PRESIDENT PRESIDENT HON'BLE MR. Vikas Saxena JUDICIAL MEMBER HON'BLE MRS. DR. ABHA GUPTA MEMBER PRESENT: Dated : 25 Apr 2022 Final Order / Judgement RESERVED STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTAR PRADESH, LUCKNOW APPEAL NO. 331 OF 2012 (Against the order dated 21-01-2012 in Complaint Case No.555/2005 of the District Consumer Commission-II, Lucknow) Smt. Savitri Devi (Dead) W/o R D Swarnkaar R/o C-16, Sector-E, Aliganj Lucknow 1/1 Rajdev Swarnkaar S/o Late Dharmraj R/o C-16, Sector-E, Aliganj Lucknow 1/2 Sudhir Kumar S/o RajdevSwarnkaar R/o C-16, Sector-E, Aliganj Lucknow ...Appellants Vs. Lucknow Development Authority Lucknow Naveen Bhavan, VipinKhand Gomti Nagar, Lucknow Through Secretary ...Respondent BEFORE: HON'BLE MR. VIKAS SAXENA, PRESIDING MEMBER.
HON'BLE DR. ABHA GUPTA, MEMBER.
For the Appellant : Sri R K Gupta, Advoate. For the Respondent : Sri S N Tiwari, Advocate. Dated : 17-06-2022 JUDGMENT MR. VIKAS SAXENA, PRESIDING MEMBER
Heard Sri R K Gupta, learned Counsel for the appellants and Sri S N Tiwari, learned Counsel for the opposite party Lucknow Development Authority.
This appeal has been preferred by the petitioner of Complaint No. 555/2005 Smt. Savitri Devi V/s Lucknow Development Authority against the judgment and order dated 21-01-2012 of District Consumer :2: Commission-II, Lucknow passed in the aforesaid complaint.
By the impugned order the learned District Consumer Commission has dismissed the aforesaid complaint.
The complainant submittedthat she got registered herself on date 30-11-1982 in the "Site and Services Scheme" of Lucknow Development Authority for a residential plot, which was approximately valued Rs.5,000/-. After the registration, the Development Authority issued an allotment letter dated 08-07-1985 by which the complainant was required to deposit an amount of Rs.6,765/- against balance due towards the remaining instalments. The said amount was deposited by the complainant on date 14-09-1990 in the authorized bank of Lucknow Development Authority, UCO Bank, LDA Extension, Lucknow, the receipt of which was attached as Annexure-2 of the complaint.
It is alleged by the complainant that she continuously remained in contact with authorities and employees of Lucknow Development Authority for the information, if any, regarding the allotted plot but no answer was furnished by the Lucknow Development Authority or its employees. , besides, the letter of allotment dated 08-07-1985 never reached to her. Suddenly on date 22-11-2004 she received a letter from Lucknow Development Authority that the allotment of aforesaid plot was cancelled on 02-11-2004 by them. The complainant replied the letter on 22-12-2004 that she never received any information regarding the allotment of the plot and also prayed to the authority to withdraw the cancellation of her allotment letter and also, to execute a sale-deed of the aforesaid plot but her request was not considered It is asserted by the complainant that the Lucknow Development Authority has illegally and arbitrarily cancelled her plot after the allotment without informing her despite her continuous efforts for execution of the sale-deed and other necessary formalities. With these averments the complainant submitted this complaint for reliefs of allotment of her plot alongwith Rs.50,000/- compensation for mental and physical harassment as well as costs of the Complaint.
The opposite party Lucknow Development Authority submitted his written statement against this complaint with the contention that the plot :3: in question was valued Rs.6,765/- and not Rs.5,000/- as averred by the complainant in the complaint. It was also mentioned in the allotment order that the final balance amount would have to be paid by the allottee before registration of the plot. The complainant was also required to deposit seven quarterly instalments of Rs.785/- and another one last instalment for Rs.770/- which had to commence from date 31-07-1985. It was also mentioned in the allotment order that if the above mentioned instalments were not paid, the penal interest at the rate of 16% on the payable amount shall be charged. This amount can be paid within the maximum period of three months and if the payment is not made within three months, the Vice Chairman, Lucknow Development Auithority has a right to cancel the allotment in which case no interest will be payable on the amount deposited by the allottee. The complainant failed to deposit all the quarterly instalments in time which were due to be paid by her starting from 31-07-1985 to 30-04-1987 on quarterly basis. It is admitted by the opposite party that the complainant deposited Rs.6,765/- on date 14-09-1990 after a lapse of more than five years.
It is further alleged by the opposite party that the complainant neither enquired about the aforesaid plot; nor did she deposit any amount till date 14-09-1990. On the said date i.e. on 14-09-1990 for the first time she contacted the office of opposite party and requested for a duplicate copy of allotment letter stating that she had not received the same and had already deposited the amount in the authorized bank, on 14-09-1990 whereupon the complainant was told that in case she is willing to take the plot, she must deposit the outstanding amount against the penal interest as per terms and conditions of the allotment but she did not pay any heed to the request of Lucknow Development Authority despite the fact that the authority sent four registered demand letters on 21-09-2002, 23-05-2003, 18-08-2003 and 25-06-2004 and asked her to deposit the outstanding balance Rs.9,880/-. All these letters remained un-replied. Consequently, she was given the last opportunity to deposit the outstanding balance by letter dated 15-07-2004 in which it was mentioned that the allotment of her plot was automatically stand cancelled if the amount was not deposited by her. When no response was received from the complainant, :4: the allotment made in her favour was cancelled vide letter dated 22-11-2004 of the LDA and the plot was allotted to another needy person. It is alleged by the opposite party that the complainant was herself responsible for violating the terms and conditions of the agreement by not depositing the overdue balance despite repeated registered demand letters.
It is further stated that the money of the Lucknow Development Authority was blocked in the plot in question and there was no option for it except to cancel the allotment of the plot in favour of the complainant and allot the same to another needy person. It is also stated by the opposite party that the Lucknow Development Authority has suffered a great financial loss by way of interest due to indifferent attitude of the complainant and thus the opposite party is entitled for heavy compensation from the complainant herself. The complainant is not entitled to get any relief and the complaint is liable to be dismissed with cost.
By the impugned judgment dated 21-01-2012 the learned District Consumer Commission dismissed the complaint concluding that the complainant herself is a defaulter and in the prevailing circumstances the opposite party Lucknow Development Authority has rightfully cancelled the allotment of her plot. The Forum found that no deficiency of service was made by the opposite party.
Feeling aggrieve with the impugned judgment and order the complainant preferred this appeal.
The memo of appeal contains the averments that the learned District Consumer Commission has not considered the evidence submitted by the complainant and wrongfully believed the copies of unregistered letters submitted by the opposite party Lucknow Development Authority. It was given in the allotment letter that the amount of instalments were based on approximate rate and the process for ascertaining actual rate was in process, therefore, after finalization of actual rate the difference amount shall be charged with the remaining instalments on or before the registration of sale deed. The appellant deposited an amount of Rs.6,765/- as demanded by the opposite party in the authorized bank of Lucknow Development Authority UCO Bank, Branch LDA Extension, :5: Lucknow which was accepted by the opposite party. The Lucknow Development Authority had an option to return the deposited money to the complainant but by accepting the amount deposited by her,they were bound to provide the allotted plot to the complainant. The opposite party always insisted that the complainant would be informed in due course but no information was sent to the complainant and for the first time the first communication vide letter dated 22-11-2004 , she was informed that the allotment of her plot was cancelled.
It is also contended by the appellant that the opposite party has admitted that they sent letter dated 21-09-2022, 23-05-2003, 18-08-2003 and 25-06-2004 to the complainant with a direction to deposit an amount of Rs.9,880/- and the last opportunity to deposit the said amount was given vide letter dated 25-06-2004 to the complainant. This indicates that the opposite party has accepted the amount deposited by the complainant in lieu of remaining instalments to be deposited by the complainant and they were bound by the agreement entered into with the complainant. The appellant vehemently denied the receipt of any aforesaid letters of the Lucknow Development Authority and contended that no receipt of registry has been submitted by the opposite party and on these letters the word registered has not been endorsed on the top of these letters. The opposite party Lucknow Development Authority is bound by the agreement of the allotment of the plot after receiving the amount deposited by the complainant. Therefore, the complainant is entitled for allotted plot. Her appeal deserves to be allowed.
We have heard learned Counsel for both the parties on the appeal.
The complainant has contended that she got registered herself for a plot under the scheme of "Site and Services Scheme" of Lucknow Development Authority for obtaining a residential plot in the scheme. Being impressed with the terms and conditions of the said scheme published in the news paper and after the registration an allotment letter dated 08-07-1985 was issued by the Lucknow Development Authority. She paid consideration after coming to know the fact of allotment on 14-09-1990 as she deposited all the instalments due alongwith the required interest on the said date in the authorized bank of the Lucknow Development Authority. In this way she :6: paid all the consideration as per the agreement between both the parties and therefore she is entitled for the plot in question as agreed between both the parties.
Now the question before this Commission is that as to whether the contract between both the parties was concluded or not? In this regard the contention of appellant Smt. Savitri Devi is of utmost importance that the fact of allotment and communication of allotment letter dated 08-07-1985 never reached to her and it was never communicated to her that the plot in question was in fact allotted to her. Thus, as per contention of the complainant herself she only got registered herself for the allotment of plot on 30-11-1982 and in this way she only made an offer for allotment of plot and by way of allotment letter the acceptance of her offer was not communicated to her, as asserted by her, the letter dated 30-11-1982 never reached to her. As per Indian Contract Act, 1872 Section-4 provides that in a contract, when the communication of a proposal or an acceptance of the proposal is complete. Section-4 of the Indian Contract Act, 1872 reads as follows:-
"4. Communication when complete.--The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made. The communication of an acceptance is complete,-- as against the proposer, when it is put in a course of transmission to him, so as to be out of the power of the acceptor; as against the acceptor, when it comes to the knowledge of the proposer. The communication of a revocation is complete,-- as against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it; as against the person to whom it is made, when it comes to his knowledge."
As per aforesaid Section-4 the communication of acceptance is against the acceptor i.e. Lucknow Development Authority in this case, would have been complete when it could come to the knowledge of the proposer i.e. the complainant herself but as per the complainant this communication did not come to her knowledge and therefore in this agreement the communication of acceptance was not complete and thus the contract was not concluded. The complainant claims that on coming to know :7: regarding allotment of the plot and the allotment letter dated 08-07-1985 she deposited all the requisite money with the bankers of Lucknow Development Authority UCO Bank, LDA Extension, Lucknow on 14-02-1990. After the deposit the Lucknow Development Authority served her a letter dated 22-11-2004 with the information that her allotment was cancelled by Vice Chairman of the Lucknow Development Authority on 02-11-2004. In this way before communication of the allotment i.e. before communication of acceptance of her proposal the revocation of acceptance was served to her and the revocation of acceptance was complete against her as per Section-5 of the Indian Contract Act, 1872 which provides as follows:-
"5. Revocation of proposals and acceptances.--A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards. An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards."
The complainant also claims that on 08-07-1985 she came to know the fact of allotment and thereupon she deposited the requisite money on date 08-07-1985 but still, she do not claim that the letter of allotment in form of acceptance of her proposal was ever communicated to her ' by the acceptor' i.e. Lucknow Development Authority. This is why, the payment of consideration or performance of the contract by her cannot be presumed to be proper on her part and in consequence of the acceptance of her proposal by the LDA. In this regard the conditions of allotment letter dated 08-07-1985 are important wherein the moe of payment and time for payment of dues and instalments for the allotment of plot has been elaborately given which is as under:-
Instalment No. Amount Due date
01.
785/-
31-07-1985
02. 785/-
31-10-1985
03. 785/-
31-01-1986
04. 785/-
30-04-1986
05. 785/-
31-07-1986
06. 785/-
31-10-1986
07. 785/-
31-01-1987
08. 770/-
30-04-1987 :8: In this agreement i.e. in the acceptance of the proposal of the complainant, a time-schedule of performance of the contract and payment of consideration was specifically and categorically specified but without any information to the acceptor the complainant/proposer paid these consideation and deposited the amount in their bankers UCO Bank without informing the authority. In this regard Section 47 of the Indian Contract Act is important wherein time and place for performance of a promise has been specified. Section 47 has been given as under:-
"47. Time and place for performance of promise, where time is specified and no application to be made.--When a promise is to be performed on a certain day, and the promisor has undertaken to perform it without application by the promisee, the promisor may perform it at any time during the usual hours of business on such day and at the place at which the promise ought to be performed."
In this particular case time schedule for performance of the promise was specially provided but the complainant did not adhere to this schedule and arbitrarily deposited the amount without informing the authority. Besides it, even if no schedule would have been given in the allotment letter even then the complainant was bound to deliver the consideration of the agreement within a reasonable time as per Section-46 of the Indian Contract Act which is given as under:-
"46. Time for performance of promise, when no application is to be made and no time is specified.--Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time."
The complainant herself has admitted that after three years of the last instalment due she deposited all these payments simultaneously alongwith penal interest that too without informing the Lucknow Development Authority. The time schedule provided in the allotment letter makes the intention of parties clear that the time was essence of this contract as it was clearly given in this allotment letter that "if the above mentioned instalments are not paid upto the due dates a penal interest @ 16% on payable amount will be charged. This penal interest will be payable for the maximum period :9: of three months. If the payment is not made within three months alongwithpenal interest then Vice Chairman, Lucknow Development Authority has the right to cancel the allotment." This stipulation in the allotment letter clearly shows that in this agreement time was essence of the contract.
Section 55 of Indian Contract Act provides that if a party to a contract promises to do certain things at a specified times and fails to do such thing at the said specified time the contract becomes voidable at the option of promise.Section 55 of the Indian Contract Act is as under:-
"55. Effect of failure to perform at fixed time, in contract in which time is essential.--When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract. Effect of such failure when time is not essential.--If it was not the intent"
In this particular case the complainant after much lapse of time after the schedule made the payment without informing the authority and from perusal of the conditions of the agreement it appears that the time for payment of instalment was an important aspect of the contract. It was also given in the clauses of the allotment letter that Vice Chairman of Lucknow Development Authority has a voidable option by cancelling the allotment and it exercised his option as the performance of the contract was not proper on the part of the complainant.
It is further submitted by the respondent Lucknow Development Authority that after depositing the aforesaid belated instalments alongwith penal interest the authority again demanded the requisite money as per the agreement by letters dated 21-09-2002, 23-05-2003, 18-08-2003 and 25-06-2004 and asked the complainant to deposit the outstanding balance Rs.9,980/- but all these letters remained unanswered. After a proper wait the Lucknow Development Authority cancelled the said allotment by letter dated 15-07-2004 when the outstanding balance was not cleared by the :10: complainant.
In this way the Commission finds that there was no concluded contract between both the parties. The deposit of requisite amount on 14-09-1990 by the complainant in the authorized bank of the Lucknow Development Authority that too without informing the authority cannot be said to be performance of the contract entered into between the parties because neither it was as per schedule of the agreement nor was within a reasonable time and that too without receiving any authentic communication of acceptance from the side of the acceptor i.e. Lucknow Development Authority. The learned District Consumer Commission rightly concluded in the impugned judgment that the complainant herself was a defaulter and no deficiency in service was committed by the respondantLDA , therefore, no right accrued in her favour for allotment of the plot allotted to her after lapse of a big time. At the most the deposited amount Rs.6,765/- can be returned back to her with 6% prevailing bank rate of interest. In this manner the appeal deserves to be allowed partly.
ORDER The appeal is partly allowed. The respondent Lucknow Development Authority is directed to refund the deposited amount of Rs.6,765/- alongwith interest at the rate of 6% per annum from the date of deposit till the date of payment to the complainant.
The said amount will be paid by the respondent to the appellant within 30 days from today.
Let copy of this order be made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission at the earliest.
( VIKAS SAXENA ) ( DR. ABHA GUPTA ) PRESIDING MEMBER MEMBER Pnt. [HON'ABLE MR. JUSTICE PRESIDENT] PRESIDENT [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER [HON'BLE MRS. DR. ABHA GUPTA] MEMBER