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Dr Indira Gupta vs. Agra Development Authority, dated 2010-08-27

 

                                                                                                                                                                                                                                                                                                       NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

Revision Petition No. 2907 of 2006

(from the order dated 03/07/2006 in Appeal/ Complaint No. 3497 of 1999 of the State Consumer Disputes Redressal Commission, Uttar Pradesh, Lucknow )

Dr Indira Gupta
D/o Shri S N Gupta
Resident of 16/ 174
Mandi Sayeed Khan
Agra
........ Petitioner
Vs.
 

Agra Development Authority,

Through its Secretary
Jaipur House,
Agra
…..... Respondents
BEFORE:
 

               HON’BLE MR. JUSTICE ASHOK BHAN        PRESIDENT

               HON’BLE MRS VINEETA RAI                      MEMBER

For the Petitioner                       Mr Vivek Singh, Advocate

For the Respondent                   Mr Ashok K Srivastava, Advocate

Pronounced on 27th August, 2010
     
 
ORDER
PER VINEETA RAI, MEMBER
 
 

            Petitioner who was the complainant before the District Forum and Respondent before the U P State Consumer Disputes Redressal Commission, Lucknow (in short ‘the State Commission’) has filed the present revision petition against the order passed by the State Commission. The State Commission had modified the order of the District Forum in favour of the Agra Development Authority – ( hereinafter referred to as ‘the Authority’ ) -Respondent in this case.

        Briefly stated the facts according to Dr Indira Gupta – Petitioner are as follows :

        The Petitioner on 25.11.1989 had applied for an Mini Middle Income Group ( in short ‘MMIG’ ) House under a Hire Purchase Scheme of the Agra Development Authority on hire purchase basis and its initial cost as per the brochure of the Authority was Rs.1,29,296/-. On 03.12.1990, the Petitioner was informed that she was allotted a house on the basis of a draw of lots, and that the enhanced cost of the house was Rs.1,69,941/-. As per the altered schedule of payments apart from Rs.15,000/- (registration fee), she was required to pay in three installments, Rs.17,000/- each, totaling Rs.66,000/-. The balance amount, payable in 30 half-yearly installments, was to be paid after the possession of the house was given to the Petitioner. Although, Petitioner paid the required three installments, the Respondent on 19.01.1993 wrongly demanded Rs.22,818/- being the third installment along with interest of Rs.5880/-. The Petitioner in writing informed the Respondent that she had already paid this installment and therefore, nothing was due from her till she was allotted the house. Although, the possession of the house was to be handed over within a year, no development work and construction took place. Therefore, the Respondent filed a complaint before the District Forum on the grounds of deficiency of service against the Respondent and sought refund of the amount deposited by her (Rs.66,000/- along with interest) and also compensation totalling Rs.1,73,300/-.

The Respondent, on the other hand, has stated that the Petitioner was a defaulter in payment of installments and she had made no payments after 22.11.1991. The Respondent while admitting that progress had been slow, denied that no development work had taken place. It was however admitted that out of the 12 MMIG houses not constructed, one was that of the Petitioner. Default in payment of installments was stated as one of the reasons for this delay. According to the Respondent, Petitioner was not interested in taking possession of the house and falsely filed a complaint in the District Forum.

The District Forum, after considering the evidence filed by both the Parties accepted the complaint for the following reasons:

“It was established that inspite of the payments, of Rs.66,000/- no house was constructed even after six years from the date of registration of the house, hence, this is definite deficiency on the part of OP. Thus, in these circumstances, she is entitled to get her money refunded from OP. In the result, the complaint is allowed and the OP is directed to refund her money of Rs.66,000/- with interest @ 15% per annum from the date of deposit. Rs.2000/- is also allowed as compensation for harassment and mental torture. This order will be complied with within 45 days from the date of this order, failing which the OP will be liable to pay the interest @ 18% per annum on the above amount.

        Aggrieved by the order of the District Forum, the Respondent filed an appeal before the State Commission. The State Commission took the view that no evidence was filed by the Petitioner (Respondent in that case) that development work had not taken place. Further, the State Commission concluded that from November 1991 to 1995, Petitioner did not file any complaint about not being given possession of her house and she was also irregular and whimsical in depositing the installments of money. The State Commission, therefore, modified the order of the District Forum as under:

After considering the entire circumstances, deduction of 20% from the amount deposited would be appropriate. Since the balance amount of Rs.53,700/- after deduction was not refunded in time, the complainant will be entitled to 6% interest on the above sum of Rs.53,700/-.”

 

        Aggrieved by the order of the State Commission, Petitioner has filed this present revision petition before us. Learned Counsel for both the Parties were present and made oral submissions. Learned Counsel for the petitioner reiterated that the required documentary and other credible evidence had been filed before the learned Fora below, to support Petitioner’s contention, that apart from illegally enhancing the price of the house from Rs.1,29,000/- to Rs.1,69,000/-, Respondent had itself admitted that there was considerable delay in completing the development work and construction of the houses including that of the Petitioner. On the other hand, Petitioner never defaulted in the payment schedule as is evident from the fact that these were deposited with the Oriental Bank of Commerce, extension counter for the Agra Development Authority. It is also a fact that as per the Hire Purchase Scheme (unlike an outright Purchase Scheme) the remaining payment was to be made in installments after being given possession of the house. Learned Counsel for the Petitioner also stated that 20% from the refunded amount was wrongly deducted in the absence of any legal provisions or rules providing for such deduction. Learned State Commission had therefore erred in ordering deduction of 20% from the amount to be refunded.

 

        Learned Counsel for the Respondent has stated that Petitioner had not being paying the installments in respect of the remaining Rs.96,941/- and this is one of the reasons for the delay in construction of the house. She had also not made any demand or approached the Respondent for early possession of the house. In fact, she did not appear to be interested in taking the house which would also explain why she had stopped making payments after May 1992. It was also averred that the State Commission had rightly ordered deduction of 20% from the amount, since, the Petitioner had suo-motu, without justification opted out of the scheme.

 

        We have considered the averments made by the learned Counsel for both the Parties and have also gone through the entire evidence on record. The fact that Petitioner was allotted an MMIG House under the Scheme and that the rate was enhanced by the Respondent from Rs.1,29,000/- to 1,69,000/- is not in dispute. It is further established as per the records, that the Petitioner had adhered to the installment schedule of payments as laid down in the allotment letter dated 03.12.1990 and paid Rs.66,000/- in this connection. So far as the payment of the remaining amount is concerned, these were to be paid in installments as per the Scheme on receiving the allotment of the house. Hence, the Petitioner was fully justified in opting out of the scheme and demanding refund of the money that she had paid along with interest. It is also an admitted fact by the Respondent Authority itself that it took quite long to complete the development work and construction of the houses, because of various factors which include litigation with contractors removing of unauthorized encroachments etc. As a result, even after several years, the project could not be fully completed. Specifically, the house to be allotted to the Petitioner was one of the 12 houses that was not constructed.

 

In fact, the learned Fora below, had also accepted that the Petitioner had the right to get the refund for the amount she had paid. Therefore, what now remains to be decided is with regard to deduction of 20% from the said amount by the Respondent as ordered by the State Commission. Learned Counsel for the Respondent on a pointed query from us was unable to show any law/ Rule or Regulation either of the Agra Development Authority or under the present Scheme by which this deduction could be made. The State Commission has also not given any specific reasons for ordering 20% deduction of the refunded amount.

 

        On the other hand, keeping in view, that the Petitioner had adhered to the payment schedule as stipulated by the Respondent; the fact that the Respondent had erred in not giving the possession of the house to the petitioner as envisaged under the Scheme and in the absence of any Rules and Regulations by which 20% could be deducted from the refunded amount, we are unable to uphold the order of the State Commission and therefore set it aside.

 

        We hereby direct that Rs.66,000/- along with 15% interest be paid to the Petitioner by the Respondent, as ordered by the District Forum, within six weeks from the date of this order alongwith Rs.2000/- as cost of litigation. Counsel for the Respondent has stated before us that Respondent had deposited the entire amount before the District Forum. If that be so, the amount deposited with the District Forum be released in favour of the Petitioner. In case there is a difference between the money deposited and to be paid to the Petitioner as per our directions, suitable adjustments, if any, be made to ensure compliance of this order. Ordered accordingly.

Sd/-
…………………….
[ Ashok Bhan., J ]
President
 
 
Sd/-
 
………………………..
[ Vineeta Rai ]

                                                                                                                 Member

 
Satish –
 
 


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