Surjit Singh (Retd.), President:
Oral:
In the present appeal under section 15 of the Consumer Protection Act, 1986, appellant has assailed the order dated 17.12.2008 of ld. District Consumer Disputes Redressal Forum, Bilaspur, whereby a complaint instituted under section 12 of the Consumer Protection Act, 1986 by the respondents has been allowed and the appellant has been ordered to refund a sum of Rs.2,28,660/- together with interest @! 12% per annum from the date of deposit of the aforesaid amount of money and also to pay Rs.3,000/- on account of cost of the litigation.
Facts relevant for the disposal of appeal may be noticed. Sometime in the year 1992, appellant advertised a scheme for construction of certain flats in Strawberry Hills area of Shimla. That was a self-financing scheme. Flats were constructed and sought to be sold in accordance with the said scheme. However, several flats remained unsold. The Board of Directors of the appellant in its 129th meeting held on 13.09.2001, passed a resolution to freeze the cost at the point of initial costing and to sell them by organizing Melas, on first-come-first-serve basis. That decision continued to be followed subsequently. On 1st July, 2003 respondents applied for allotment of one of the unsold flats. They were intimated by the appellant that flat was available and it could be allotted to them at a cost of R.11,48,000/- and that they were supposed to apply on the prescribed form together with earnest money of Rs.20,000/-. Respondents applied, as per the aforesaid advice. They were allotted a flat on 04.07.2003 on the condition of their depositing the entire amount. They deposited the entire amount of money.
Sometime in the year 2005, respondents came to know that several other persons had been allotted similar flats, subsequent to the allotment in their favour, at a lesser price of Rs.9,30,000/-. Respondent then filed a complaint under section 12 of the Consumer Protection Act, 1986 before the ld. District Consumer Disputes Redressal Forum, Shimla, seeking a direction to the appellant to refund the difference between the amount charged from them and the amount for which flats were allotted to several other persons, subsequent to allotment in their favour. Certain other allegations regarding lack of amenities etc. were also made. There is no dispute in the present appeal with respect to those allegations as it appears from the order of the ld. Forum below that no relief with respect to said allegations was granted and the respondents have not filed any cross appeal seeking relief with regard to such amenities. Therefore, these allegations need not be detailed.
Appellant, in its reply, admitted that the flat, which was allotted to the respondents, was one of the left out flats (para-4 of the reply) but it stated that decision to sell the left out flats at a lesser price of Rs.9,30,000/- was taken by the Board of Directors on 24.01.2004 in its 135th meeting, subsequent to the allotment of flat to the respondents. It was also stated that flat allotted to the respondents was better located and the locality also had better amenities compared to the flats which were sold out at the rate of Rs.9,30,000/- subsequently. Issue of limitation was also raised by the appellant. Ld. Forum concluded that flats at a lesser price than the price at which one was sold to the respondents, having been sold in the year 2004 and 2005, limitation was to be counted from these years and the complaint being within two years of such sales was not barred by time. On merits, ld. Forum concluded that respondents flat was also one of the left out flats and since there was an earlier decision of the Board of Directors taken in 129th meeting held on 13.09.2001, which was in force at the time when the allotment was made in favour of the respondents, a price higher than the frozen original cost at the time of initial costing could not have been charged and that the appellant, by charging higher price, had committed an act of unfair trade practice. Consequently, the complaint was allowed and the aforesaid order passed.
We have heard ld. Counsel for the parties and gone through the record.
In para-4 of the reply, appellant very categorically stated that the respondents applied for the left out flats. It has come on record, rather stated by the appellant itself in its reply, that at its 129th meeting held on 13th September, 2001, the Board of Directors of the appellant took the decision to freeze the original cost at the time of initial costing of the left out flats and to sell them by organizing Melas on a first-come-first-serve basis. Copy of the resolution was submitted by the appellant itself as an enclosure of Annexure:R-3. Annexure:R-3, which is a copy of decision of the Board taken at an undated meeting, according to which the procedure approved at 129th meeting of selling the left out flats at frozen original cost, had been followed till the date of the meeting at which decision, Annexure:R-3, was taken. As noticed hereinabove, Annexure:R-3 is undated, but a reading of this document shows that the meeting was held after 27.10.2003, because there is a reference to Boards review meeting held on 27.10.2003, in which Honble Chief Minister expressed concern regarding unsold inventory. That means the decision, which was taken at 129th meeting to sell the left out flats at frozen original cost, on first-come-first basis, had been followed upto the date of the meeting at which decision, Annexure:R-3, was taken and that date was subsequent to 27.10.2003.
Frozen cost of the flats can legitimately be presumed to be Rs.9,30,000/- because later on in the years 2004 and 2005, some flats were sold at such rate as per admitted case of the parties. Now, when the frozen original cost of the flats was Rs.9,30,000/-, and there was a decision of the Board of Directors to sell the flats at such rate on first-come-first-serve basis, as illustrated hereinabove, the very fact of the appellant conveying to the respondents in response to their application, Annexure:R-1, that the tentative cost of the flat was Rs.11,48,000/-, amounts to unfair trade practice, as the appellant conveyed the price to be much higher than what it actually was as per decision of the Board of Directors.
It appears that the respondents were unaware of the frozen original cost at the time, when they paid the price. They came to know, as per averment in the complaint, that the price was much lower, only when some flats were sold in the years 2004 and 2005 at the rate of Rs.9,30,000/- per flat.
In view of what has been noticed hereinabove, we are of the considered view that there is no merit in the present appeal and the same is dismissed. However, we find that ld. Forum below has assumed that the stamp duty for execution of conveyance deed already stands paid by the respondents to the appellant and has, therefore, ordered the refund of Rs.2,28,660/- with interest instead of Rs.2,18,660/-, which is the actual difference between the price charged by the appellant and the price at which the appellant sold similar flats later on to other persons. So, with the modification of reduction of the amount from Rs.2,28,660/- to Rs.2,18,660/- in the operative part of the order of ld. Forum, we dismiss the appeal.
One copy of this order be sent to each of the parties, free of cost, as per Rules.