P.S.SAWHNEY vs CHIEF EXECUTIVE OFFICER

THESE two cross appeals, no.138/ 2007 filed by Shri P.S. Sawhney and no.164/ 2007 filed by the Central Government Employees Welfare Organisation (CGEWHO) emanate from the order of the Delhi Consumer Disputes Redressal Commission in CC No.C-9/ 1999. Therefore, they are taken up for disposal together.

THE case of the Complainant, Shri P.S. Sawhney before the State Commission was that on 2.8.1994 he had registered with the OP, CGEWHO for allotment of flat in Noida and has paid the earnest money of Rs.30,000/- for the same. He had applied for C- type flat with total area of 1125 square feet and total price of Rs.5.82 lacs. An allotment letter was issued in his favour on the day next after the payment i.e. 3.8.1994, which showed that he had been allotted a HIG Flat in Noida Phase I. In order to pay further installments, he applied for house building advance to his parent department on 4.4.1995. THE loan did not materialize and in the meanwhile he got retired from Government service. It is stated by the Complainant that he wrote to the OP/ CGEWGHO offering to pay the entire price towards the cost of the flat using his retirement benefits received from the Government. In the meanwhile, the allotment was cancelled by the OP and he was advised to seek refund of the earnest money. The Complainant therefore invoked the jurisdiction of the State Commission seeking directions for :- a) Allotment of C type HIG flat at the original cost of Rs.5.82 lacs. b) Seeking interest at 20% p.a on the amount deposited. c) Award of monthly rent that the Complainant had to pay for alternative accommodation at Rs.3205 per month. d) Compensation of Rs.1,00,000/-. e) Cost of litigation Rs.1,000/-.

The State Commission came to the conclusion that the Complainant has not made any payment, beyond earnest money deposited by him and that the OP was within its right to terminate membership of the Complainant in 1997. The State Commission therefore, directed the OP to refund the earnest money of Rs.30,000/- deposited by the Complainant with 9% interest with effect from the date of its deposits till the date of this order as no more flat is available in the said scheme in which the Complainant has applied for.

DURING the course of hearing of this appeal, it was informed on 8.2.2011, that there is a possibility of amicable settlement between the parties. However, as no settlement was reported, the matter was finally heard on merits. While Shri P.S. Sawhney has conducted his case in person, the OP/CGEWHO was represented by their counsel by Sri Abhijeet Sinha. We have heard both at length and perused the relevant records. As per the records, the Complainant was allocated registration No. NACO 813, in Sector 50 Noida, as per the communication of 3.8.1994 signed on behalf of OP by Shri N.K.Wadwa, Deputy Director, Administration. According to the Complainant, while this allotment was in Sector- 50, the newspaper advertisement, in response to which his application was made, pertains to Sector -51 Noida. He had received a letter of the same date, signed by the same officer, in which payment schedule was communicated to him. The letter communicated a demand of Rs.145500/- (less the earnest money already deposited), being the 1st installment. Significantly, this letter also carried the following intimation:- It is brought to your notice that most of the other beneficiaries have already paid the first installment. Therefore, no definite date for payment of first installment is being given to you. You are advised to pay the 1st installment at the earliest. Please note that you will be required to pay interest for late payment as per CGHO rules which will be recovered from you at the time of payment of final installment. This step is necessary to bring all the beneficiaries at par.

INTERESTINGLY, this letter to the Complainant also stated that house building advance to the beneficiaries under the scheme is regulated under the relevant OM of 4.9.1991 from the Ministry of Urban Development and a certificate, as required under this OM, was also being enclosed with the letter. Even his query about the allotment being in Sector 50 Noida, as against the original advertisement of Sector 51, was clarified through the letter of 23.8.1994. This letter informed him that Sector 51 has been renumbered as Sector 50. In the course of argument before us, the appellant raised several matters, which have no bearing on the main question whether he had been able to make payment of the installments as per the schedule informed to him through the letter of 3.8.1994. The records show that eventually, on 1.11.1996 a notice was sent to him giving him one final opportunity to make the payment latest by 29.11.1996. It was clearly conveyed that in the event of non-payment the allotment would have to be cancelled. Instead of paying the installment, the Complaint entered into further correspondence on the amount payable and seeking information about the price on which allotment to other applicants had been made. Finally, a letter was issued from the respondent/OP on 26.6.1997 conveying the cancellation of the allotment and asking him to submit the necessary documents to enable them to refund the amount paid by him. A copy of this cancellation has been annexed as P-16. Despite clear communication through the letter of 26.6.1997, asking him to submit three specific documents to enable refund of the amount due to him. The appellant has made the EMD a prominent ground for appeal in the following words:- As per the law of the land, since the days of the Privy Council, it is well settled that the earnest binds the parties, and the EMD of the appellant is till with the respondent.

NO evidence has been adduced on behalf of the Appellant/Complainant to show that his request for refund had been rejected, or even ignored, by the respondent. We are therefore, unable to appreciate this attempt to take advantage of the EMD being still with the respondent/ OP. Even the claim of the appellant/complainant that the cancellation memo has not been given to him till date, cannot be accepted in view of his own averments in the appeal petition:- On the receipt of my request to make the entire payment, after my superannuation, the respondent has resorted to Unfair Trade Practice (UTP) by intimating, in back date, that my allotment has been cancelled, when the real factum is that my flat has been handed over to some one else.

WE do not see any merit in the claim of the appellant that there was no last date for payment of the 1st installment. WE have dwelt on this issue at length with reference to the letter of 3.8.1994 sent by the OP to the Complainant in which the reason for not setting down a date was detailed. The first installment was to be paid on allotment, which in his case, had been made on the same day i.e. on 3.8.1994. Further, the State Commission has referred in this behalf to the letter of 18.5.1995 addressed to the Complainant which required him to pay the second installment latest by 12.7.1995. It clearly means that the 2nd installment, together with the unpaid 1st one, had to be paid within 12.7.1995. There is no evidence to show if either was paid. After this, there should be scope for asking by what date the first installment had to be paid. The cancellation of allotment took place on 26.6.1997. We therefore, agree with the conclusion reached by the State Commission that the Complainant did not make any payment beyond the earnest money paid by him and, therefore the OP was justified in canceling the allotment. The allotment was made in 1994 and cancelled in 1997 as no installments were paid. In this background, the question of any deficiency of service on the part of the OP/Central Government Employees Welfare Housing Organisation does not arise.

In the result, First Appeal No. 138/2007, filed by the Complainant, is dismissed. In the facts and circumstances of this case, First Appeal No. 164/2007 filed by the Opposite Party, seeking orders to permit the OP to deduct 10% of the 1st installment from the earnest money of Rs.30,000, is also dismissed. The order of the State Commission is confirmed. Parties shall bear their own costs.