Delhi District Court
Smt. Nirmala Sachdeva vs Delhi Development Authority on 21 August, 2013
Suit No. 207/2007
IN THE COURT OF MS. RICHA GUSAIN SOLANKI
CIVIL JUDGE(WEST):TIS HAZARI COURTS: DELHI
Suit No. 207/2007
1. Smt. Nirmala Sachdeva
W/o Sh. Aalok Kumar Sachdeva
2. Aalok Kumar Sachdeva
S/o Sh. Parsot Lal
Both residents of H. No. 135,
Sector31, Faridabad, Haryana.
..............Plaintiffs
Versus
Delhi Development Authority,
Through its Vice Chairman,
Vikas Sadan, I.N.A.,
New Delhi110023.
...........Defendant
Date of institution : 17.05.2007
Arguments heard on : 22.07.2013
Date of decision : 21.08.2013
JUDGMENT: This is a suit for recovery of Rs 31,816/. The brief facts as averred in the plaint are as follows:
1. It is the case of the plaintiffs that they were allotted a house bearing no. 47 situated in Pocket 3, Block B, Dwarka A, Bindapur by the defendant vide allotment letter dated 15.05.199530.05.1995. The total price of the house as per the allotment letter was Rs 2,28,050/ if paid in lump sum. If the same is not paid in lump sum, then the plaintiff had two options, Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 1/14 Suit No. 207/2007 first option was that of praying the 50% price in lump sum and the remaining 50% in three equated quarterly installments of Rs. 43,149.85 paisa each. The second option was that of paying the full price in six equated quarterly installments of Rs 43,149.85 paisa each. As per the first option, the plaintiffs were to pay total of Rs. 2,43,474.55 paisa and as per the second option Rs 2,58,899.10 paisa, so the plaintiff opted for the first option. The plaintiffs deposited with the defendants an amount of Rs. 2,48,175/ i.e Rs 15,000/ in February 1995, Rs 1,14,025/ on 24.11.1995, Rs 43,150/ on 18.05.1996 and Rs. 76,000/ on 09.09.1996. As per clause IV of the allotment letter, the rate of interest for the late deposit of any installment was 12% per annum for the first month, 18% per annum for the second and third months and 24% per annum for the period more than three months. As per clause VI of the allotment letters an allottee was entitled to have possession of the house after payment of three installments or 50% of the price of the house. It was after paying the full price that the plaintiffs requested the defendant vide their letter dated 18.01.1997 for delivering the possession. Defendant vide their letter dated 22.04.1997 demanded an amount of Rs 9149/ on account of interest, which the plaintiffs did not deposit. This was not deposited because the defendant had readvertised the same houses for sale in September, 1996 at lump sum price of Rs 2,38,450/. Apart from Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 2/14 Suit No. 207/2007 this, the demand was much more than the amount actually due towards interest as per the allotment letter. So vide letter dated 15.05.1997, the plaintiff no. 2 informed the defendant should charge the same price from the old allottees as it was charging from the new allottees. When the defendant did not deliver the possession of the house, the plaintiffs knocked the doors of the Consumer Court at Delhi. However he lost till the National Consumer Disputes Redressal Forum. The plaintiffs seeing no option but to take back their principal money without interest decided to pay to the demanded amount to the defendant. Plaintiffs deposited an amount of Rs. 31,816/ on 20.11.2003 as per their letter dated 31.10.2003. The cause of filing the present suit is stated to have arisen on the date of deposit of the amount viz. on 20.11.2003.
2. Therefore, plaintiff filed the present suit praying that Court may order the refund of Rs. 31,816/ to the plaintiffs alongwith interest @ 12% per annum from 20.11.2003.
3. In the written statement filed on behalf of defendant/DDA, it is stated that no statutory notice under Section 53 B Delhi Development Act has been served upon the DDA and therefore the suit is liable to be dismissed. The suit is stated to be barred by time and barred by principle of resjudicata. Plaintiffs registered for allotment of flat under Expandable Scheme 1995 through application No. 19705 dated Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 3/14 Suit No. 207/2007 25.02.1995. The demand cum allotment letter of block dates 15.05.1995
- 30.05.1995 was issued to them in respect of Flat no. 47, Type A Pocket 3, Block B, Dwarka Bindapur with the request to deposit the cost of flat as per schedule mentioned therein. The plaintiffs failed to deposit the cost within the stipulated period and therefore the allotment stood cancelled as per the terms and conditions contained in the demand cum allotment letter. However after 23 years days after the stipulated period, the plaintiffs deposited a sum of Rs. 2,48,175/ (part payment) on their own. The delay period was regularised by the competent authority subject to interest and restoration charges and accordingly letter dated 22.04.1997 was issued to plaintiffs to deposit Rs 9,149/ on account of interest. The plaintiffs again failed to deposit the amount and therefore there was no occasion for DDA to issue possession letter to the plaintiff. A total amount of Rs 2,48,175/ was deposited in parts after the stipulated period. The receipt of letter dated 18.01.1997 is not denied. It is stated that the said letter was examined and thereafter it was replied through letter dated 22.04.1997 requesting them to deposit Rs 9,149/ on account of interest which they did not. It is stated that the plaintiffs are not entitled to any refund as amount of interest and restoration charges is in accordance of the relevant rules and regulations and policy of DDA.
Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 4/14 Suit No. 207/2007
4. The plaintiff filed replication to the written statement of defendants wherein the plaintiff reiterated and reaffirmed the contents of the plaint and denied the averments made by the defendants in their written statement. It is further stated that after receipt of letter dated 31.10.2003, plaintiff no. 2 contacted the office of the defendant in order to know how the amount of Rs 31,816/ was calculated. The Account Officer of the office of the defendant told plaintiff no. 2 as to how the amount of Rs 31,816/ was arrived at. When the plaintiff no. 2 recalculated the amount before him as per his own formula, it became clear that there was some totaling mistake in the calculation of the amount. So the Accounts Officer of the defendant advised plaintiff no. 2 for writing a letter so that the totaling mistake may be corrected. It was after attending the accounts branch of the office of the defendant, the plaintiff informed the defendant that even as per their own calculation, the amount should have been around Rs 21,000/ and not Rs. 31,816/.
5. Vide order dated 25.02.2008 following issues had been framed by my Ld. Predecessor :
1. Whether the plaintiff is entitled to the recovery of Rs 31,816/, as prayed for? OPD.
2. Whether the plaintiff is entitled to the interest, if so, at what rate and for what period? OPP Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 5/14 Suit No. 207/2007
3. Whether the suit is barred by time? OPD
4. Whether the suit is barred by the principle of resjudicata? OPD
5. Whether the suit is bad for want of notice under Section 53 B DD Act?
OPD
6. Relief.
6. In their support plaintiffs examined two witnesses. PW 1, plaintiff no. 2 himself, entered the witness box on 11.05.2009 and tendered his affidavit Ex PW1/X in evidence which states the same facts as were stated in the plaint and the replication. PW 1 relied on demand cum allotment letter Ex PW 1/A and challans Ex PW 1/B to Ex PW 1/D. He further relied on copy of letter dated 18.01.1997 as Ex PW 1/E and its postal receipts as Ex PW 1/F. Letter dated 22.04.1997 by DDA is Ex PW 1/G and letter dated 15.05.1997 by plaintiff is Ex PW 1/H. Ex PW 1/J is its postal receipts. Letter dated 31.10.2003 and copy of letter dated 20.11.2003 are Ex PW 1/K and Ex PW 1/L is the receipt. Ex PW 1/M is the copy of letter dated 06.11.2003. Ex PW 1/N is the acknowledgment of plaintiff's letter. Ex PW 1/O, Ex PW 1/E and Ex PW 1/Q1 to Ex PW 1/Q 5 are the medical records of plaintiff no. 2.
In her cross examination, he admitted that no notice under Section 53 B DD Act was served before filing of the suit but explained that since letter Ex PW 1/M had been served, there was no requirement.
Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 6/14 Suit No. 207/2007
7. PW 2 entered the witness box on 07.11.2011 with the summoned record and filed copy of the same as Ex PW 2/A.
8. In its support defendant/DDA has examined two witnesses. DW 1 Sh. Shiv Baksh, A.D. DDA, DDA entered the witness box on 09.02.2012 and tendered his affidavit Ex DW 1/X in evidence. DW 1/X states the same facts as were stated by the defendant in the written statement. DW 1 placed reliance on copy of plaintiff's application Ex DW 1/1, copy of demand cum allotment letter Ex DW 1/2, Copy of letter dated 22.04.1997 by DDA as Ex DW 1/3, copy of scheme broacher Ex DW 1/4. The copy of calculation sheet is Ex DW 1/5 and copy of office order is Ex DW 1/6.
In his cross examination he filed copy of circular dated 19.04.2002 as Ex DW 1/P1. He could not comment on the calculation of interest saying that the same was within the knowledge of accounts department. He admitted that no circular or order was supplied to plaintiff before levying Rs 1500/ as restoration charges. He relied on calculation sheet dated 14.10.2003 as Ex DW 1/PX.
9. DW 2, Smt. Usha Tanwar, Sr. Accounts officer, DDA entered the witness box on 29.11.2012 and tendered her affidavit Ex DW 2/X in evidence. DW 2/X states that in case the payment is delayed for over 15 days then the interest for the entire month is calculated otherwise Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 7/14 Suit No. 207/2007 interest for 15 days is calculated.
In her cross examination she identified the signatures of Sh. G.L. Verma in affidavit Ex DW 2/D1. She identified Ex DW 2/P2 as the correct copy of broacher. She stated that clause 13 of Ex DW 2/P2 will not applied to plaintiff's case since he had deposited money after four months of due date. She stated that clause 13 applies when 50% of amount is paid within prescribed time and thereupon 15% interest per annum is levied on the balance amount of 50% which is payable in three installments. She filed copy of the rules and regulations (DDA Management and Disposal of Housing Estates) Regulations, 1968 as Ex DW 2/Z.
10. I have heard the parties and have perused the record.
11. Issue wise findings are as under:
Issue no.3 : Whether the suit is barred by time? OPD This issue is preliminary in nature and is therefore being decided first. The onus of proving this issue was on the defendant. It is the case of plaintiffs that the cause of action arose on 20.11.2003 when the payment of Rs 31,816/ was made by them. The present suit has been filed on 17.05.2007. Plaintiffs contend that plaintiff no.2 was undergoing medical treatment since May 2006 and hence the suit has been filed after a delay of 176 days. An application under Section 5 Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 8/14 Suit No. 207/2007 Limitation Act was also filed in this regard. However it is settled law that Section 5 Limitation Act has no application to institution of suits. Once the period of limitation begins to run, it does not stop. The disability, even though not a legal disability, in the year 2006 cannot give any benefit in period of limitation to the plaintiff. The suit is barred by time.
Accordingly, this issue is accordingly decided against the plaintiffs and in favour of the defendant.
12. Issue no.1 : Whether the plaintiff is entitled to the recovery of Rs 31,816/, as prayed for? OPD.
The onus of proving this issue was on the plaintiff. It is the admitted case of parties that plaintiff was alloted Flat bearing no. 47, TypeA, Pocket3, BlockB, Dwarka Bindapur, Delhi vide allotment letter Ex PW 1/2. It is further admitted that plaintiff made payments towards this flat on 18.11.1995 (Rs 114025/ vide Ex PW 1/B), on 17.05.1996 (Rs 43150/ vide Ex PW 1/C) and on 31.08.1996 (Rs 76000/ vide Ex PW 1/D). Under the allotment letter ex PW 1/A, allottee had the option of either paying six installments of Rs 43149.85 paisa on the six mentioned dates or he could pay 50% of disposal price on the first fixed date and the remaining amount was to be paid on the fixed last three dates.
Plaintiff claims that he chose to pay in terms of option 2 i.e Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 9/14 Suit No. 207/2007 50% of the disposal price in the beginning. Plaintiff claims that payments for the said flat were to be made in the manner mentioned in the scheme broacher Ex DW 1/4. Clause 13 of the brochure mentions and illustrates the manner in which an allottee could pay if he chose option 2 of payment as provided in allotment letter Ex PW 1/A. This clause mentions that the allottee should pay 50 % of disposal price in an interest free period of 50 days from the date of issuance of demand letter. He could deposited this amount after 60 days and before 180 days also but in such a case interest @ 15% per annum was to be added on the 50% of disposal price.
DDA on the other hand claims that clause 4 of allotment letter Ex PW 1/A was to apply to plaintiff's case whereby he had to make the payment within 90 days from the due date. Thereafter interest @ 12% per annum was to be levied for the first month and interest @ 18% per annum was to be levied for the next two months. Beyond this the allotment was to be cancelled automatically but DDA could restore the same on payment of restoration charges along with interest @ 24% per annum for the period beyond 90 days.
DW 1 stated that he was not aware of the correctness of the calculations done by DDA and the same can be stated by the accounts department of DDA. Consequently DW 2 who is the Sr. Accounts Officer entered the witness box and explained Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 10/14 Suit No. 207/2007 that clause 13 of Ex DW 1/4 (as also Ex DW 2/P2) was not to apply to plaintiff's case because he had not made the payment within the prescribed time. DW 2 explained that clause 13 applied when 50% of the amount is paid within the prescribed time and thereupon interest @ 15% per annum is levied on the balance amount of 50% which is payable in three installments. This testimony of DW 2 is contrary to brocher Ex DW 1/4 which clearly states that 15% interest was levied on the disposal price of 50% which was to be paid within 60 days of the issuance of demand letter. Therefore the calculation of DDA on the basis of clause 4 of allotment letter Ex PW 1/A is incorrect.
13. The next contention of plaintiff is that interest on the belated payments was to be calculated on per day basis. On the other hand DDA claims that in case of delay between from one day till 15 days, interest for 15 days is levied and in case of delay beyond 15 days, interest for the entire month is calculated. This is substantiated by terms and conditions DW 2/Z. I find merit in the contention of DDA. The terms and conditions have been formulated under the provisions of DDA (management and disposal of Housing Estates) Regulations, 1968 i.e prior to the allotment in plaintiffs' favour. These terms and conditions will therefore apply to interest levied on the plaintiff. DDA has further contended that interest Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 11/14 Suit No. 207/2007 rates as mentioned in clause 4 of allotment letter Ex PW 1/A will apply to belated installments (the three installments of Rs. 43149.85 paisa each) and after 31.03.2002 interest rates as per office order Ex DW 1/6 will apply to plaintiff's case. The factum of application of clause 4 of Ex PW 1/A has not been disputed by the plaintiff in so far as its application to installments are concerned. The fact of interest rates leviable after 31.03.2002 stands proved by clause 5 of office order Ex DW 1/6.
14. It is also the contention of plaintiff that restoration charges of Rs 10,000/ could not be levied on them since broacher ex DW 1/4 does not talk about it. However DDA has proved the provision for levy of such charges vide office order ex DW 1/P1.
15. It is on the basis of these principles that amount for the said flat was to be levied from the plaintiff. Calculation sheet ex DW 1/5 as also Ex DW 1/PX is incorrect since it applies the formula mentioned in clause 4 of Ex PW 1/A. However in view of the finding on issue no. 3 the suit is time barred and the plaintiff is not entitled to recovery of any money from DDA.
Accordingly, this issue is decided against the plaintiff and in favour of the defendant.
16. Issue no.2 : Whether the plaintiff is entitled to the interest, if so, at what rate and for what period? OPP Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 12/14 Suit No. 207/2007 The onus of proving this issue was on the plaintiff. In view of findings on issue no. 1 and 3, this issue is also decided against the plaintiff and in favour of the defendant.
17. Issue no.4 : Whether the suit is barred by the principle of resjudicata? OPD The onus of proving this issue was on the defendant. Perusal of the judgment passed by the Consumer Forum reveals that the forum had concluded that it has no jurisdiction over the subject matter in dispute. Therefore the principle of res judicata can have no application as neither the matter was finally decided on merits nor was it decided by a Court of competent jurisdiction.
Accordingly, this issue is decided in favour of the plaintiff and against the defendant.
18. Issue no.5 : Whether the suit is bad for want of notice under Section 53 B DD Act? OPD The onus of proving this issue was on the defendant. It is the admitted case of parties that no notice under Section 53 B DD Act was sent to DDA before filing of the present suit. However plaintiff contends that letter Ex PW 1/M was sent to DDA and the same was received vide acknowledgment Ex PW 1/N. DW 1 in his cross examination admitted that no reply to the said letter was sent by DDA. Let Ex PW 1/M Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 13/14 Suit No. 207/2007 mentions the entire cause of action of the plaintiff against DDA. Therefore DDA was seized of the knowledge of plaintiff's grievance. In such eventuality even though a formal notice under Section 53 B DD Act was not sent, however the purpose of such notice i.e to inform the government department about sender's claim, was satisfied. This suit can not therefore be said to be bad for want of statutory notice.
This issue is accordingly decided in favour of plaintiff and against the defendant.
19. Relief :
In view of the aforesaid discussion, suit of the plaintiff is dismissed. In view of the facts of the case, parties to bear their own costs. Decree sheet be prepared accordingly. File be consigned to record room.
Announced in the open Court on 21.08.2013 at 04:00 PM (Richa Gusain Solanki) Civil Judge (West) THC, Delhi/ 21.08.2013.
Smt. Nirmala Sachdeva & Ors. Vs. DDA and Ors. 14/14