State Consumer Disputes Redressal Commission
Chandigarh Housing Board vs Rupinder Kaur on 17 December, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH First Appeal No. 474 of 2013 Date of Institution 31.10.2013 Date of Decision 17.12.2013 Chandigarh Housing Board, 8 Jan Marg, Sector 9/D, Chandigarh. Appellant/Opposite Party. Versus Rupinder Kaur, Junior Scale Stenographer, GMCH-32, Chandigarh, presently residing at H.No.113, Tribune Colony, Gobind Vihar, Kansal, District Mohali, Punjab 160103 by/through Mohan S. Thakur, Advocate. ---Respondent/Complainant. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT SH.DEV RAJ, MEMBER
Argued by:Sh.Karan Sharma, Advocate for the appellant.
Sh. Mohan Singh Thakur, Advocate for the respondent.
PER DEV RAJ, MEMBER This appeal is directed against the order dated 30.08.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it partly allowed the complaint filed by the respondent-complainant and directed the Appellant/Opposite Party as under:-
9 For the reasons recorded above, we find merit in the complaint and the same is partly allowed. OP is directed :-
i) To pay interest at the savings bank rate on the amount of Rs.70,000/- from 4.12.2010 (i.e. one month after the draw of lots, wherein the complainant was not successful) to 19.1.2013 (the date when the actual payment was received by her).
ii) To pay compensation to the tune of Rs.20,000/- for mental agony and physical harassment caused to the complainant.
iii) To make payment of an amount of Rs.10,000/- to the complainant towards litigation costs.
10. This order shall be complied with by the OP within one month from the date of receipt of its certified copy, failing which, OP shall be liable to pay the interest on the amount of Rs.70,000/- to the complainant @9% p.a. from 4.12.2010 till realization, besides making payment of compensation and costs of litigation, referred to above.
2. In brief, the facts of the case, are that the complainant applied for a one bedroom flat launched by the Opposite Party under a Self Financing Housing Scheme 2008 for the employees of Chandigarh Administration vide application No.10547 (Annexure C-1). It was stated that the complainant also deposited an amount of Rs.70,000/-, as earnest money, vide D.D.No.349065 dated 26.2.2008 of the State Bank of India, Khuda Alisher, Chandigarh. It was further stated that the draw of lots, against this Scheme was held on 4.11.2010, and the complainant remained unsuccessful. It was further stated that the complainant kept on waiting for the refund of the deposited amount as promised by the Opposite Party in the brochure but the same was not received. It was further stated that the complainant applied to the Opposite Party, to allot flats to unsuccessful applicants if there were any left out flats, and specifically made a prayer, that if she was considered for allotment of flats, she would not claim any interest on the earnest money deposited by her (Annexure C-2) but that was never done. It was further stated that, ultimately, the complainant made personal visits for the refund of her earnest money alongwith interest @12% p.a. but in vain. It was further stated that the draw of lots took place on 4.11.2010. The earnest money was invested in the year 2008. It was further stated that the refund of amount after a long delay amounted to deficiency in service on the part of the Opposite Party. It was further stated that the complainant received the earnest money on 19.2.2013 through cheque (Annexure C-3) but without any interest. It was further stated that the complainant issued legal notice dated 5.3.2013 (Annexure C-5) to the Opposite Party, for claiming interest on earnest money but the same was not replied to by it. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed seeking directions to the Opposite Party to refund Rs.70,000/- alongwith interest @12% per annum; pay Rs.50,000/- as compensation for physical harassment and mental agony besides Rs.15,000/- as costs of litigation.
3. Opposite Party, in its written version, stated that the complainant was unsuccessful in the draw of lots held on 4.11.2010 in the Self Financing Housing Scheme 2008 for the employees of Chandigarh Administration. It was further stated that as per Clause VIII(v) of the brochure of the scheme, the earnest money deposited by the complainant and such applicants was to be refunded within a period of 30 days from the date of draw of lots and in case the refund was not made within the stipulated time the interest was payable at the savings bank rate beyond the period of 30 days. It was further stated that the complainant and similar unsuccessful applicants themselves approached the Opposite Party giving unconditional voluntary undertaking for retaining their earnest money. It was further stated that the earnest money of the applicants, who gave the undertaking , was retained and for the rest of the unsuccessful applicants, the same was refunded. It was further stated that the status of the said scheme was brought to the notice of the Board in the meeting held on 24.2.2012 (Annexure R-1), wherein, it was resolved that the Opposite Party should not retain the earnest money of unsuccessful candidates even though they had given an undertaking. It was further stated that the same issue was again placed in the meetings held on 29.6.2012 (Annexure R-2) and on 26.12.2012 (Annexure R-3) and it was finally resolved that the earnest money lying with the Opposite Party should not be retained even when such applicants had given an unconditional undertaking of not claiming any interest later on. It was further stated that the earnest money of the applicants and of the complainant was returned. It was further stated that the legal notice was sufficiently replied vide Annexure R-5. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor did it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. The Parties led evidence, in support of their case.
5. After hearing the Counsel for the contesting parties, and, on going through the evidence and record of the case, the District Forum, partly allowed the complaint as stated above, in the opening para of the instant order.
6. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
7. We have heard the Counsel for the parties and have gone through the evidence and record of the case, carefully.
8. The Counsel for the Appellant/Opposite Party submitted that the respondent/complainant was unsuccessful in the draw of lots and the earnest money was refundable to her within 30 days from the date of draw of lots. It was further submitted that the respondent/complainant submitted an undertaking dated 30.11.2010 (Annexure C-2) of her own volition that the earnest money deposited by her should not be refunded till the decision of issue taken up by U.T & MC Employees Sangarsh Committee, to allot flats, to left out employees. It was further submitted that the respondent/complainant also undertook not to claim any interest. It was also submitted by the Counsel that the appellant/Opposite Party has already principally decided to allow interest at Savings Bank rate in such cases.
9. The Counsel for the respondent/complainant submitted that the Opposite Party was deficient in rendering service, and the District Forum had rightly partly allowed the complaint.
10. Admittedly, the respondent/complainant deposited earnest money of Rs.70,000/- while applying for One Bed Room Flat under Self Financing Housing Scheme-2008 for the employees of Chandigarh Administration vide Application No.10547 (Annexure C-1). The draw of lots was held on 04.11.2010 and the respondent/complainant remained unsuccessful. She voluntarily gave an undertaking dated 30.11.2010 (Annexure C-2), which is extracted hereunder:-
My application No. is 10547. As I was unsuccessful in the draw, and came to know that your office (Chandigarh Housing Board) is in the process of refunding the earnest money to the unsuccessful applicants. As, your good-self is aware that UT & MC Employees Sangarsh Committee has taken up the case with the Chandigarh Administration to allot flats to all left out employees in the above said scheme. So I hereby request your good-self that earnest money deposited by me, should not be refunded till the decision of the case. I will not claim any interest.
11. Thus, it was on account of undertaking aforesaid given by the respondent/complainant, of her own volition that the Appellant/Opposite Party retained the earnest money of the respondent/complainant. The draw of lots was held on 4.11.2010 and as per Clause VIII(v) of the brochure of Self Financing Housing Scheme 2008 for employees of Chandigarh Administration, earnest money was required to be refunded within 30 days, from the date of draw of lots and for any delay beyond the period of 30 days, interest at the Savings Bank rate was payable. No doubt, the respondent/complainant undertook not to claim interest but such an undertaking could not override the aforesaid provision of brochure, more so, when the amount remained with the appellant/Opposite Party till its refund on 19.01.2013. As submitted by the Counsel for the respondent/complainant, the Chandigarh Housing Board has also decided, in principle, to allow Savings Bank interest for retention of earnest money beyond 30 days from the date of draw of lots. Since the earnest money was refunded to the respondent/complainant without Savings Bank interest after long delay, the appellant/Opposite Party was deficient, in rendering service. The order of the District Forum whereby it allowed Savings Bank interest from 4.12.2010 till 19.1.2013 on earnest money is just and correct.
12. However, since the respondent/complainant had herself requested the appellant/Opposite Party not to refund the earnest money, until and unless the issue with regard to the allotment of flats to the left out employees was decided, the question of sufferance of mental agony and physical harassment by her did not at all arise.
Therefore, grant of compensation of Rs.20,000/- on this count, by the District Forum, was unjust and unwarranted. To this extent, the order of the District Forum, being perverse, needs to be set aside.
13. The facts of the case titled as Abha Dobriyal Vs. Chandigarh Housing Board, Consumer Complaint No.319 of 2012 decided on 31.01.2013 (modified by this Commission in First Appeal No.158 of 2013 vide order dated 06.06.2013), relied upon by the Counsel for the respondent/complainant are distinguishable from the facts of the instant case. In that case, there was no such undertaking given by the applicant/complainant, asking the Chandigarh Housing Board not to refund the earnest money or of not claiming any interest on that amount.
14. The litigation cost to the extent of Rs.10,000/- awarded by the District Forum, is also somewhat on the higher side, and needs to be reduced.
15. No other point, was urged, by the Counsel for the parties.
16. For the reasons recorded above, the appeal filed by the appellant/Opposite Party is partly accepted with no order as to costs, and the impugned order passed by the District Forum, is modified, to the extent, indicated hereunder;
(a) Direction in Para 9 (i) of impugned order is upheld.
(b) Direction in Para 9 (ii) of impugned order is set aside.
(c) The cost of litigation, directed to be paid vide Direction No.9(iii) of the impugned order, is reduced to Rs.7,000/-.
(d) This order be complied with, by the appellant/Opposite Party, within a period of 45 days, from the date of receipt of its certified copy, failing which, it shall pay interest @9% per annum on the amount of Rs.70,.000/-, as per direction 9(i) of the impugned order, from 4.12.2010 till realization, to the respondent/complainant, besides payment of cost of litigation of Rs.7,000/-.
(e) Any other relief granted, and direction given by the District Forum, which is contrary to, and in variance of this order, subject to the modification, aforesaid, shall stand set aside.
15. Certified Copies of this order be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion.
Pronounced.
17th December, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.474 of 2013) Argued by:Sh.Karan Sharma, Advocate for the appellant.
Sh. Mohan Singh Thakur, Advocate for the respondent.
Dated the 17th day of December 2013 ORDER Vide our detailed order of the even date, recorded separately, this appeal has been partly accepted with no order as to costs. The order of the District Forum has been modified.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad