National Consumer Disputes Redressal
Smt. Nidhi vs Ghaziabad Development Authority on 29 January, 2010
OP 10/1998
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
(A)
REVISION PETITION NO. 4875 OF 2008
[Against the order
dated 18.09.2008 in Appeal No. 441/SC/2008 of the State Commission, U.P.]
Ghaziabad Development Authority, Through
its Vice Chairman,
Ghaziabad.
Vs.
Smt. Nidhi,
W/o Shri Krishna Kumar,
B-1/192, Paschim Vihar,
New Delhi.
Petitioner/Opposite Party
Respondent/Complainant
(B)
REVISION PETITION NO. 5024 OF 2008
[Against the order
dated 18.09.2008 in Appeal No. 441/SC/2008 of the State Commission, U.P.]
Smt. Nidhi,
W/o Shri Krishna Kumar,
B-1/192, Paschim Vihar,
New Delhi.
Vs.
Ghaziabad Development Authority Through
its Vice Chairman, Ghaziabad.
Petitioner/Complainant
Respondent/Opposite Party
Appearance in both the matters:
For the Complainant
Smt. Nidhi,
complainant-in-person
For the Opposite Party
Ms. Reena Singh, Advocate with
Mr. Devesh Kumar Advocate
BEFORE:
HON'BLE MR.
JUSTICE B.N.P. SINGH, PRESIDING MEMBER
HON'BLE MR.
S.K. NAIK, MEMBER
Pronounced on
: 29th January, 2010
ORDER
PER S.K. NAIK, MEMBER Through these Revision Petitions, the opposite party-Ghaziabad Development Authority (GDA for short) and the complainant Smt. Nidhi seek to challenge one and the same order dated 18.09.2008 passed by the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow (State Commission for short). Accordingly, we propose to decide these Revision Petitions together by one common order.
While the complainant is aggrieved that the State Commission has modified the order passed by the District Consumer Disputes Redressal Forum, Ghaziabad (District Forum for short), waiving Rs.10,000/- imposed as cost of damages by the District Forum and has also directed the complainant to pay interest on installments @ 18% per annum after February 1997 until the date of the payment; the opposite party-GDA is aggrieved that the direction to allot a plot by itself is not sustainable since the complainant had not only not been allotted any plot as such but even the reservation amount which was a pre-requisite for being considered had not been paid by her. It was in this background that these cross Revision Petitions have been filed before this Commission.
Learned counsel for the opposite party-GDA has submitted that both the fora below have grossly erred in failing to notice that the complainant did not even have the locus standi to file the consumer complaint since she had only paid the registration amount of Rs.14,804/- on 21.02.1992, where-after vide their letter dated 20th of February, 1993, the opposite party-GDA informed the complainant that a plot had been reserved for her and directed her to make further payments as per the schedule stated in para 7 of their said letter. The schedule indicated the amount due and the due date of payment but the complainant did not bother to make any payment ostensibly on the ground that the opposite party-GDA has calculated the interest @ 18% per annum, which is higher by 3% than what was stated to be charged in the brochure.
She has further contended that until date, the complainant has not deposited a penny more than the registration amount and has even failed to pay the reservation amount of Rs.29,568/- which did not bear any interest. Even though a grace period of one month was given to her for payment of the reservation amount, which concession was also available for payment of the future installments, the complainant in utter disregard of the said requirement deliberately did not make any further payment and continued to raise the bogie of wrong calculation at 18% in place of 15%. Since there was no component of interest to establish her application for being eligible for allotment on the reservation amount, which also she has failed to deposit, the counsel submits that the complainant has no locus standi to file any consumer complaint. It was precisely for this reason that no allotment letter was ever issued to the complainant. In the absence of any communication from the opposite party-GDA that she has been allotted any specific plot, she cannot be treated as a consumer as it is only after the receipt of the reservation amount/earnest money that an applicant can be considered to be eligible for consideration of allotment. In this case draw of lots was conducted only in respect of those applicants who had deposited the reservation amount and the complainant having failed to deposit the same was not entitled to participate in the lottery and as such there was no question of allotment of a plot under the Rules.
All the same, the opposite party-GDA had waited for a number of years and finally vide their letter dated 21st of June, 1997 were constrained to inform the complainant that her application has been cancelled and she was advised to send the original receipt of deposit to facilitate refund of the amount as per rules. In this backdrop, without considering whether the complainant had made the payment of the reservation amount, the fora below have erred in giving direction to allot a plot and that too on old terms and conditions, which is patently erroneous. In support of her contention, learned counsel for the opposite party-GDA has relied upon a judgment of the Honble Supreme Court rendered in the case of Bareilly Development Authority Vs. Vrinda Gujarati and others [(2004) 4 SCC 606], justifying the competence of the opposite party-GDA to cancel the reservation of the plot for the failure of the complainant to deposit the requisite amount as per terms. She has, therefore, prayed that the orders passed by the fora below being palpably based on wrong and misdirected appreciation of facts need to be set aside.
The complainant in support of her case has submitted that while para 3.50 of the brochure states that interest @ 15% is payable on installments, the opposite party-GDA has demanded interest @ 18% vide their letter dated 20th February, 1993 and she has been pointing out this anomaly, requesting the opposite party-GDA to revise and reduce the calculation repeatedly, which, however evoked no response. According to her, this is a gross deficiency on the part of the opposite party-GDA, which prevented her from making the payment that otherwise she was willing to do and she was constrained to file a complaint before the District Forum.
Contending that the District Forum as well as the State Commission have considered her case and have very rightly directed the opposite party-GDA to allot her a plot and not to charge penal interest on the installments due from her, she submits that their orders are fully justified and need no interference at the stage of revision.
We have heard the complainant, who has appeared in person, as also the learned counsel for the opposite party-GDA and have carefully perused the records of the case. In our view, both the fora below have completely overlooked on glaring aspect of the case that the complainant without any foundation to establish her case has been blowing her trumpet accusing the opposite party-GDA of inaction and deficient in service.
It is common knowledge that when schemes for allotment of plots are floated by various development authorities, an applicant has to first apply for registration by remitting the registration amount, which is normally 10% of the tentative cost of plot/flat, and thereafter, if found eligible, he/she is asked to deposit the earnest money within a certain period. It is only after the earnest money is deposited that the applicant is given the option to either pay the entire cost in lump sum or opt for payment on the basis of periodical installments in which case an element of interest is built into the payment schedule. No component of interest is levied on the payment of earnest money. But in this case, the complainant had paid only Rs.14,804/- and had applied for registration. In response thereto, the opposite party-GDA vide their letter dated 20th of February, 1993 had informed the applicant as under :-
GHAZIABAD DEVELOPMENT AUTHORITY, GHAZIABAD (UP)-201001 RESERVATION LETTER Letter No. 0510/634 0510/006822/CC/93 Dated : 20th FEB. 1993 To Mr / Ms. Nidhi B1/192 Paschim Vihar DELHI-110063.
Sub.: Regarding Reservation of Indira Puram Priyadarshani Enclave Plot Scheme.
Ref: Your application no. 006822.
Dear Applicant, With reference to your above-cited subject, I have been directed to inform you that a plot has been reserved for you in this scheme and your particulars are given below:-
1. Allottee Code : 634 740 0510
2. Scheme Name : Indira Puram Scheme Code : 634 Priyadarshani Enclave Plot Scheme
3. Property Category: Plot-D Property Code : 740
4. Tentative cost : Rs.1,47,840/- Pay code Plan : 5
5. Registration : Rs.14,784/-
(Already paid) amount
6. Bank Name : Bank of Baroda, Gandhi Nagar, Ghaziabad.
7. Payment Schedule:
Sl.No. Instalment Description Due date of payment Due amount (in Rs.) Interest (in Rs.) Total Due amount (in Rs.)
1.
Reservation Amount 28/02/93 29568.00
-
29568.00
2. Instalment No.1 28/08/93 12936.00 9314.00 22250.00
3. Instalment No.2 28/02/94 12936.00 8150.00 21086.00
4. Instalment No.3 28/08/94 12936.00 6986.00 19922.00
5. Instalment No.4 28/02/95 12936.00 5822.00 18758.00
6. Instalment No.5 28/08/95 12936.00 4658.00 17594.00
7. Instalment No.6 28/02/96 12936.00 3493.00 16429.00
8. Instalment No.7 28/08/96 12936.00 2329.00 15265.00
9. Instalment No.8 28/02/97 12936.00 1164.00 14100.00 You are requested to pay as per details given above failing which action shall be taken as mentioned below :-
(1)If the amounts payable to Ghaziabad Development Authority are not paid within the prescribed time limit, penal interest at the rate of 21% p.a. shall be payable alongwith the payable amounts . If the payment is not made within three months after its due date alongwith penal interest, if any, the allotment shall be treated cancelled without notice.(2)
Grace period of one month shall be given for payment of reservation amount/instalment after the due date. However, if any previous amount of instalment stands unpaid on the due date, no grace period will be admissible on the current instalment. In case payment is made after the grace period, penal interest shall be payable from the original due date of payment.(3)
In case houses are ready before one or more of above instalments are still-due, you will have to pay the balance instalments in lump-sum before possession.
The terms and conditions as stipulated in the brochure of above scheme hold good and the allocation is subject to those conditions.
In all future correspondence Allottees code, application number and pay plan code should invariably be quoted.
Yours sincerely, Sd/-
(Abhay Kumar) Joint Secretary GDA, Ghaziabad (emphasis supplied) As would be seen from para-7 of the above letter, prescribing the schedule of payment, where under Sl. No.1 it has been stated that reservation amount of Rs.29,568/- was required to be paid by 28th of February, 1993. No component of interest has been charged on this amount as together with the registration amount already paid this formed the basic earnest money to establish her right to allotment. The fact that even until today the complainant has not deposited even this basic amount of Rs.29,568/- goes to prove that she has failed to establish even her right to be considered for any allotment much less to any specific plot. Thus, both the fora below have failed to take note of and consider this aspect of the matter. This was the basic foundation based on which the further contentions could have been taken into consideration. This having not been done, the rest of the contentions such as the opposite party-GDA having not responded to her objection that the schedule has been calculated on 18% rate of interest as against 15% stated in the brochure, will fall to the ground. It is very surprising that if the complainant was really serious about getting a plot allotted in her favour why did she not deposit the reservation amount of Rs.29,568/- which was without any interest and the further installments even if they are calculated at 18% rate of interest and thereafter represent the matter before the opposite party-GDA. It appears that she was only buying time to delay the payment by her repeated communications, which has been unduly given much weight by the fora below to hold the opposite party-GDA as deficient in service.
Another aspect which is worth taking note of is that the complainant, five months after she was informed that the so called allotment had been cancelled by the opposite party-GDA; issued a legal notice to the opposite party-GDA on 14th of November, 1996, in para 3 and onwards of which the advocate has stated as under :-
3. That vide letter Dated 20.02.1993, the GDA has informed my client that a plot has been reserved for my client in the Scheme and to deposit the amount as detailed in the letter, but there was difference between you (meaning GDA) and my client in respect of rate of interest. You demanded the interest at the rate of 21% per annum, but my client told you either to charge the interest at the rate of 15% per annum as stated in Brochure or the amount deposited by me client be refunded to my client with interest at the rate of 15% per annum, but no reply has been received by me client till now from your side.
4. That my client is still ready to pay the amount as demanded by you in the letter dated 20.02.1993, with interest at the rate of 15% per annum (simple) not at the rate of 21% p.a. which you are required to confirm the same as my client may be able to arrange and deposit the money with you.
Therefore, through this Notice you are hereby finally called upon either to confirm the proposal of my client as stated in para no.4 of this notice or as per Brochure, or to refund the whole amount deposited by me client with interest at the rate of 15% per annum since the date of deposit, within a period of 15 days from the receipt thereof, failing which my client shall be compelled to knock the doors of court/forum at your risk and costs.
From a reading of this legal notice, it appears that the complainant was aware of her ineligibility for the allotment of a plot and was interested only in the refund of her deposit with interest at the rate of 15% per annum.
It further appears that only at the time of filing the complaint before the District Forum after a lapse of more than two years from the issue of the legal notice that she raised the question of allotment of a plot as an afterthought, as prices of plots by then had appreciated phenomenally, and her prayer in the complaint reads as under :-
It is prayed that Ghaziabad Development Authority, Ghaziabad may be instructed to :-(1)
Accept the payment of Rs.1,54,087.00 (Rs. One Lac Fifty Four Thousand Eight Seven only) against the plot reserved in my favour as per terms & conditions of the scheme.(2)
Allot the plot to me as per computer draw held by G.D.A. on 22.12.1995 under the scheme in question.
OR (1) Pay exemplary damages of Rs.2,00,000.00 (Rs. Two Lacs only) for causing loss of public confidence under misrepresentation, violating terms of law and uncalled for delay.
This amount of exemplary damages should be remitted to Prime Ministers Relief Fund.
(2)Refund the earnest money deposited by me with 15% p.a., rate of interest to be computed at half-yearly interval.
The fact that she has prayed for return of her deposit with 15% interest, though as an alternate remedy, evidently amounts to the realization that she had no claim for a plot. While claiming Rs.2.00 Lakh damages, she has, to show her generosity, proposed that the amount be given to the Prime Ministers Relief Fund.
All these aspects only indicate that the complainant without having deposited a single penny after the initial registration deposit of Rs.14,804/- has been questioning the calculation of the installments at 18% rate of interest, which even otherwise the opposite party-GDA has explained that the same had the approval of the competent authority and the cost indicated in the letter was only an estimated one and not final.
The fora below appears to have been carried away by the misimpression that a gross injustice has been perpetrated on the complainant, which is not the case at all. The law by now is very well settled that an applicant/an allottee cannot refuse to pay the installments on extraneous grounds, whether it be no provision of infrastructure/amenities. Herein, the complainant is under the wrong impression that she was entitled not to pay the reservation amount or the installments until and unless the rate of interest was brought in conformity with the one stated in the brochure.
In view of the foregoing discussions, we find that the complainant has absolutely no case for being allotted a plot once her registration was cancelled vide letter dated 21st of June, 1997 and she was advised to take back her registration amount by completing the required formality. She would, however, be entitled to only the refund of registration amount of Rs.14,804/- which the opposite party-GDA had already offered to refund but considering that the opposite party-GDA would have utilized that amount over the years and also for failure to reply to her letters before cancellation, it would be in the interest of justice that it should refund this amount with 12% interest per annum within a period of two months from the date of the order. We, accordingly, dispose of both the Revisions Petitions in these terms.
Sd/-
(B.N.P. SINGH) (PRESIDING MEMBER) Sd/-
(S.K. NAIK) MEMBER Mukesh/