Chandigarh Housing Board Vs. Naresh Kumar Gupta and Others - Court Judgment

Excerpt:
consumer protection act, 1986 - sections 2(1)(g) and 15 - case referred: chandigarh housing board v. avtar singh and ors., slp no. 2174 of 2007. (referred) [para 13] comparative citation: 2008 (3) cpj 4841. this appeal has been directed by opposite party no. 1 against order dated 6.12.2007 passed by consumer disputes redressal forum-i, u.t. chandigarh (hereinafter to be referred as district consumer forum), vide which complaint of naresh kumar gupta respondent no. 1 (complainant) was accepted and the appellant as well as silverton coop. house building society limited- respondent no. 2 was directed to refund rs. 21,300 to respondent no. 1 sh. naresh kuamr gupta within 30 days of receipt of copy of the order. if the amount was not paid within prescribed period, then they were held liable to pay it along with penal interest @ 12% p.a. with effect from the date of deposit i.e. 22.6.1999 till payment. 2. briefly stated the facts are that sh. naresh kumar gupta was enrolled as member of silverton coop. house building society ltd. and his enrolment number was 575. in accordance with the scheme framed by the chandigarh administration-respondent no. 3, issued notification dated 28.5.1991 (annexure c-1). according to it, the eligible societies were required to pay 25% of premium of land as earnest money and the premium of land was fixed at rs. 750 per sq. yard. the said scheme was challenged by some of the cooperative house building societies in the honble punjab and haryana high court by way of civil writ petition no. 1454 of 1992. the respondent no. 1 deposited a sum of rs. 9,200 for ‘b category flat with the estate officer, u.t. chandigarh through the society vide cheque dated 25.5.1992, as per interim order dated 11.5.1992, issued by honble high court in aforesaid civil writ petition. the estate officer had returned the cheque after keeping it for more than six years to the liquidator of the society and after withdrawal of the orders of liquidation, the cheque was returned to the society in july, 1999. in february 1999, the appellant- chandigarh housing board directed the society to deposit 25% of the premium of land along with 18% interest, which the society in turn demanded from the members vide letter annexure c-2 dated 8.3.1999. in compliance with the said letter.respondent no.1 deposited rs. 47,230 which included interest of rs. 21,300 vide dd no. 377166, dated 22.6.1999 with the society which in turn passed on the amount to appellant (chandigarh housing board). since, chandigarh housing board failed to allot any land to the society for construction of dwelling units/flats for the members, so on 21.4.2005, he approached the society for refund of rs. 47,230 due to financial constraints. the appellant vide letter dated 4.5.2006 refunded rs. 3,42,260 to the society on account of refund of 10 members which included his amount also vide annexure c-4. in this manner only amount of rs. 25,930 was refunded out of rs. 47,230 and an amount of rs. 21,300 was retained which was the interest amount. thus, appellant illegally retained the amount of rs. 21,300. protest was lodged but of no avail. 3. alleging deficiency in service, the complaint was filed. 4. appellant contested the complaint and stated that the amount of interest charged on the delayed payment of the earnest money was not to be refunded and, therefore, only the earnest money of rs. 25,930 qua respondent no. 1. (complainant) was refunded through society vide letter dated 4.5.2006. it denied other allegations. 5. respondent no. 2 silverton cooperative house building society did not appear despite service, hence, it was proceeded against ex parte on 11.9.2007. 6. chandigarh administration and registrar, cooperative societies i.e. respondent nos. 3 and 4 filed joint written reply and stated that the amount had been rightly refunded and respondent no.1 was not entitled to any other refund of the amount. 7. parties adduced their evidence by way of affidavits 8. after hearing counsel for the parties, district consumer forum vide order dated 6.12.2007 accepted the complaint with costs as stated in the earlier part of the judgment. 9. aggrieved by the said order, op no. 10-chandigarh housing board has filed the present appeal. 10. we have heard counsel for appellant mr. k.k. gupta, mr. s.s. khetarpal, advocate for respondent no. 1, mr. gaurav bhardwaj, advocate for respondent no. 2 and carefully gone through the file. 11. counsel for appellant-chandigarh housing board contended that there was a bunch of cases bearing revision petition no.734 of 2004 and others bearing no. 1648/2005 to 1671/2005 which were decided by three members bench of honble national commission vide order dated 12.7.2007 and the same were dismissed with costs of rs. 3,500, each by holding that by virtue of para-11 of the scheme of 1991, the rules of 1973 had been made applicable to the land allotted to the societies. neither rules, 1973, nor scheme 1991 vests in the housing board the power to forfeit the interest paid, further it was held that there seems to be no justification in forfeiting the interest amount paid on late deposit of 15% of earnest money when the entire amount of earnest money was decided to be paid to the society or its members under the memo dated 9.3.2000. the amount of interest paid by complainant would not fall in the category of interest referred to in para no. 8 of the scheme, 1991 and as such it was held that the fora below had rightly made the order of refund of interest amount. 12. against the said decision of honble national commission dated 12.7.2007, chandigarh housing board filed special leave petition in the honble apex court and the apex court vide order dated 30.11.2007 passed in petition for special leave to appeal (civil) no. 21740/2007 from the judgment in revision petition no. 734 of 2004, stayed the operation of impugned order. thus, operation of judgment of national commission dated 12.7.2007 had been stayed vide order of the apex court dated 30.11.2007. that was the order of national commission of three members bench. earlier two members bench presided over by honble mr. justice k.s. gupta vide order passed in revision petition nos. 2567/2003 and 2568/2003 set aside the order of the consumer fora below and had held that consumer fora below had acted illegally while allowing refund of the interest amount @ 18% p.a. from the date of deposit of the amounts. this point was also considered by the three members bench in the judgment dated 12.7.2007 and held that earlier the revision petition nos. 2567/2003 and 2568/2003 were not decided with reference to memo dated 9.3.2000 and as such in view of memo dated 9.3.2000 the said judgment was not applicable. 13. since, whether amount of interest was to be refunded by the chandigarh housing board or not which was recovered @ 18% p.a. as per order of the honble high court passed in cwp no. 1454 of 1992 is subject matter of s.l.p. which is pending in the apex court titled chandigarh housing board v. avtar singh and ors., bearing slp no. 2174 of 2007, so, it will be appropriate to stay proceedings of this appeal till the decision of the slp pending in the honble apex court. after the decision of the slp, the appeal could be revived by any of the parties. the file be consigned to record room. 14. counsel for respondent no. 1 (complainant) contended that stay granted by the honble apex court vide order dated 30.11.2007 in case chandigarh housing board v. col. avtar singh, etc. was not applicable as the stay was operated only in that very case. in our opinion, contention is not applicable. the honble national commission had laid a general principle that neither according to rules 1973, nor scheme framed in 1991 vested powers in chandigarh housing board to forfeit interest paid. against this decision, chandigarh housing board had filed special leave petition in honble apex court and the operation of that order passed by the national commission was stayed. therefore, till the decision of slp, it would not be wise to decide the appeal. 15. hence, the proceedings of this appeal are stayed till the decision of slp pending in the honble apex court and after the decision of slp, the appeal could be revived by any of the parties. the file be consigned to record room. 16. copies of this order be communicated to the parties, free of charge.