State Consumer Disputes Redressal Commission
The Managing Director, City And ... vs Harishankar Chhadmi Gupta on 30 April, 2013
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
BEFORE THE HON'BLE STATE CONSUMER DISPUTES
REDRESSAL
COMMISSION, MAHARASHTRA,
MUMBAI
First Appeal No. A/06/848
(Arisen out of Order Dated 04/03/2006 in Case
No. 81/2005 of District Raigarh)
1. The Managing
Director, City and Industrial Development Corporation Limited
Reg. add. at NIRMAL, Nariman Point, Mumbai. Through its Authorized
Signatory Shri. Subhas
Ramchandra Gavale
Mumbai
Maharashtra
2. The Marketing
Manager, City and Industrial Development Corporation Limited
Registered address at
NIRMAL, Nariman Point, Mumbai.
Mumbai
Maharashtra
...........Appellant(s)
Versus
1. Harishankar Chhadmi Gupta
Add. Shop No. 35, Bhumiraj Vouis, Sector
20, Kharghar, Tal. Panvel, Dist. Raigad.
Raigad
Maharashtra
...........Respondent(s)
BEFORE:
HON'BLE MR. S.R. Khanzode PRESIDING MEMBER
HON'BLE MR. S.B.Sawarkar MEMBER
PRESENT:
Ms.Madhura Nadgauda, Advocate
for the appellants.
Mr.Ganesh Waiti, Advocate
Proxy for Mr.Ganesh Koli,
Advocate for the respondent.
ORDER
Per Shri S.R. Khanzode, Honble Presiding Judicial Member This appeal takes an exception to an order dated 04/03/2006 passed in consumer complaint No.81/2005, Harishankar Chhadmi Gupta V/s. The Managing Director, CIDCO Ltd. & Anr., passed by District Forum, Raigad.
2. Undisputed facts are that consequent to the scheme floated and tender invited for the land for row-house at Kharghar, the complainant submitted the tender for a plot having area of 100 sq.mtrs.
and which was accepted by the City and Industrial Development Corporation of Maharashtra Limited (CIDCO in short) and issued him allotment letter. The tender instructions for the above referred scheme :
MM-II/28/988 duly filled in by the respondent/complainant is on record and the terms and conditions on which the lease of individual row-house plot bearing No.G-48 admeasuring 99.999 sq.mtrs. in Section 12 at Kharghar, Navi Mumbai under the BUWP to the respondent/complainant-Mr.Harishankar Chhadmi Gupta was made by a letter dated 25/11/1998 by the CIDCO. Accordingly, lease money was payable by the respondent/complainant @ `3,399/- per sq.mtr and it was to be paid after adjusting earnest money of `40,000/-, in two installments viz. `1,49,948.50 on 28/12/1998 and remaining amount of `1,49,948.50 on or before 25/01/1999. Extension of time invited the interest as stipulated in Clause 4 of those terms and Clause 27 speaks about termination, etc. and it reads as under :-
27. I you fail to pay above lease premium hereinbefore mentioned on the due dates or upon payment of total lease premium by you, if you fail to execute the Agreement to lease within a period of one month from the date of last payment or within a period which may be extended by the Corporation or if you fail to submit to the Corporation plans of the intending Row House within a period of 6 months from the date of execution of agreement or to commence erection of the intended building/buildings within a period of 12 months from the date of execution of such agreement to lease or to complete erection of the intended Row House in accordance with approved plans and obtain Occupancy Certificate from the Corporation, our Corporation shall be entitled to rescind or terminate the Agreement so concluded or to be formulised or formulised in the standard form and revoke the licence granted or to be granted to you to enter upon above plot of land for the purpose of erecting the intending Row House and to forfeit entire Earnest Money Deposit paid by you and plus 25% of the agreed premium.
3. It is not in dispute that there was delay in making payment as per those terms, supra, and the first installment was paid in the month of March 1999 along with accrued interest of `4,660/-. Thus, total payment was made at that time was `1,54,908.50. Second installment was also not paid in time. It is the contention of the respondent/complainant that thereafter on 07/02/2002 he had made an application for extension of time i.e. after period of three years when the second installment was due and he was allowed to pay the second installment with interest due. It would be proper to mention at this stage that there is an averment made in the complaint that only in the year 2005 the fact of termination letter dated 16/12/1999 was disclosed to the respondent-complainant but in fact in the application dated 07/02/2002, the complainant admitted having received the letter of termination/cancellation of the plot and thus, his such submission cannot be accepted. It is further submitted on behalf of the complainant that according to letter dated 14/02/2002, the CIDCO subject to approval by the Board of Directors and further approval by the Government of Maharashtra, asked the respondent/complainant to deposit second installment of the premium due of `1,49,948.50 and interest accrued thereon of `1,08,086/- on or before 15/03/2002 and accordingly, he made the payment of `2,58,034.50. However, when the complainant insisted for possession of the plot he was informed about earlier cancellation of allotment and the fact that Board of Directors did not approve extension of time and accordingly, after forfeiting the earnest amount and after deducting of 25% of agreed lease premium of the amount paid, `2,14,923/- was offered as refund. Thereafter, this consumer complaint was filed.
4. The District Forum in its wisdom directed the CIDCO to refund amount of `4,12,643/- with interest @ 12% p.a. with effect from 13/03/2002 and to pay `5,000/-
as compensation and `2,000/-
as costs. Feeling aggrieved thereby the opponents preferred this appeal.
It may be clarified at this stage that though the opponents are mentioned as Managing Director and Marketing Manager of the CIDCO, in fact it is a complaint filed for and as against the CIDCO. Thus, mis-description of the parties can be overlooked.
5. Heard both the parties.
Perused the record.
6. In the instant case, as earlier pointed out while recounting the facts that though the complainant in complaint alleged that he had not received the termination letter dated 16/12/1999 and came to know after disclosure made by the CIDCO in 2005, is a blatant lie. In his extension letter dated 07/02/2002 he had admitted having received the letter of termination/cancellation of the plot.
Said cancellation letter dated 16/12/1999 reads as under :-
Our Corporation accepted your offer for allotment of above plot and signified its acceptance to you by letter of allotment issued under No.CIDCO/MM(II)/dated 25/11/98.
You were required to pay the agreed premium in two monthly equal installments. The first installment was due to be paid on or before 28/12/98 and the second installment was due to be paid on or before 25/1/99.
You have failed or omitted to pay the second installment on or before the above due date or within extended period. In view of the above our Corporation hereby terminates or rescinds the agreement so concluded between our Corporation of one part and you of the other part and forfeits EMD in full and 25% of the agreed lease premium.
7. Thus, the letter did clearly spelled out the consequences of the termination/cancellation in the said letter. Said termination is as per clause 27 of the terms of the lease spelled out in the letter dated 25/11/1998, supra. Therefore, action of the CIDCO of cancellation of the plot and/or termination of the plot cannot be faulted with.
8. After this termination, waiting for getting lapse of three years period, on 07/02/2002 for the first time the respondent/complainant offered to pay the balance amount i.e. the second installment of premium with interest as per his application dated 07/02/2002, supra. In response to the said application by its letter dated 14/02/2002 the CIDCO, as earlier mentioned, agreed to accept the second installment of premium along with accrued interest payable (on it), on or before 15/03/2002, but it clearly mentioned therein that said acceptance would subject to further approval by Board of Directors of CIDCO and also by the Government of Maharashtra under the provisions of Navi Mumbai Lands Disposal Regulation, 1975. It is also mentioned -
If our Board of Directors and State Govt. refuses to relax the condition of grant of extension of time, our Corporation would be entitled to forfeit the EMD + 25% of the agreed lease premium and claim damages.
However, in anticipation of such Approval you are requested to make the balance payment of `1,49,948.50 along with interest of `1,08,086/- in the meantime. If you fail to make the balance payment as above, your case cannot be processed for approval from the Competent Authority and in such case the suitable action can be taken against you.
9. Thus, it is made clear to the complainant that subject to these conditions stipulated and consequences spelled out, the respondent/complainant can make the payment. Therefore, further payment made in the month of February 2002 is always subject to those conditions referred to above and as such it is never to be construed as extending the time revoking the termination/cancellation by accepting said payment.
10. The CIDCO by its letter dated 09/12/2002 informed the complainant that Board of Directors refused to relax the condition as per policy of the CIDCO since said request was made beyond the period of three years and after adjusting the forfeiture of the earnest amount and 25% of the agreed lease premium, as per terms, balance amount of `2,14,923/- could be refunded to the complainant without interest by cheque. It is also informed that the delayed payment charged paid by him, if any, will not be refunded to him and it was also mentioned in the said letter that the respondent/complainant would undertake not to impugn such refund in any Court of law and withdraw the suit, if any, instituted by him before requesting for refund. The CIDCO placed on record policy decision in respect of extension of time witnessed by minutes of the Board of Direction meeting dated 22/07/2002.
11. Thus, we find that the District Forum erred in ignoring the material placed on record, particularly, termination letter dated 16/12/1999, application for extension of time dated 07/02/2002 by the respondent/complainant and response given to him by the CIDCO by its letter dated 14/02/2002 and the conditions stipulated while accepting payment of second installment along with interest, supra. CIDCO was acting well within initial terms of lease spelled out in the letter dated 25/11/1998. Since extension of time was further asked beyond the period of three years by letter dated 07/02/2002, the CIDCO was within its own right to specify on which terms said further payment could be accepted and which they did as per their letter dated 14/02/2002. Under the circumstances, to refund the amount of `4,12,643/- to the complainant is, per se, a mistake committed by the District Forum.
However, we find interest @ 12% p.a. with effect from 13/03/2002 awarded on the amount refundable amount of `2,14,923/- is just and proper. CIDCO ought to have refunded the amount forthwith along with said letter dated 09/12/2002. Grant of `5,000/- and cost of `2,000/- by the District Forum as per the impugned order needs no interference considering totality of the circumstances. We hold accordingly and pass the following order :-
-: ORDER :-
1.
Appeal is partly allowed.
2. In the impugned order, in Para (1) substitute a figure of `2,14,923/- in place of figure `4,14943/-. Rest of the order stands confirmed.
3. The amount paid by the CIDCO and deposited as condition of stay of `2,14,923/-
plus an amount deposited as per proviso of Section 15 of Consumer Protection Act, 1986 of `25,000/-
at the time of filing of the appeal be paid to the respondent/complainant along with accrued interest thereon, if any, and subject to verification of these receipts. These payments shall be adjusted from the total amount due as per the impugned order as modified in this appeal.
4. In the given circumstances, both parties to bear their own costs of the appeal.
5. Copies of the order be furnished to the parties.
Pronounced Dated 30th April 2013.
[HON'BLE MR. S.R. Khanzode] PRESIDING MEMBER [HON'BLE MR. S.B.Sawarkar] MEMBER dd