Monday, August 26, 2013

IN Interest of Equity & justice: National Consumer Court

Here is a verdict of the Apex Consumer Forum; wherein the Court ordered equitable penal interest to the complainant as was charged by the colonizer.. please go through this very useful judgement.................


(From the order dated 20.11.2009 of the Haryana State Consumer Disputes Redressal Commission, Panchkula in Appeal no. 609 of 2006)

Haryana Urban Development Authority
Through its Estate Office, Gurgaon
Haryana                                                             Petitioner


Pawan Kumar Gupta
Son of Shri C P Gupta
43 Sarojini Park                                                  Respondent
Shastri Nagar
New Delhi – 110 031

                    HON’BLE MRS REKHA GUPTA         ,   PRESIDING MEMBER

For the Petitioner                         Mr R S Badhran, Advocate
For the Respondent                      IN PERSON
Pronounced on 10th July 2013

        Revision petition no. 857 of 2010 has been filed under section 21 (b) of the Consumer Protection Act, 1986 against the order dated 20thNovember 2009 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula in First Appeal no. 609 of 2006.
        The brief facts of the case as per the respondent/complainant are as follows:
        The respondent had applied for allotment of 10 Marla Plot in Sector 9, Gurgaon to the Petitioner/ Opposite Party vide application no. 014712 dated 20.08.1992 and has deposited earnest money of 10% amounting to Rs.22,836/- in cash on 20.08.1992.
        Respondent was allotted a plot bearing no. 1184 ad-measuring 10 marlas, i.e., 220 sq mtrs, in Sector – 9, Gurgaon vide memo no. E O (G)/ ALT – 9/ 961 dated 09.07.1993 issued by the petitioner and a sum of Rs.34,924/-, i.e., 15% of the total tentative price was deposited with the petitioner vide Bank draft no. 283813 dated 24.07.1993 drawn on SBI, Laxmi Nagar, Delhi and thus 25% of the total price was paid at the time of allotment and the balance 75% sale price was payable in 6 yearly instalments. The respondent has also deposited Rs.1,51,031/- towards the cost of additional price i.e., 574/- sq. yds, as desired in notification no. 7904 dated 03.05.1999. Thus full and final payment has been received by HUDA in 1998 and escalated price also on 23.03.2002.
        The respondent has paid Rs.3,80,031/- as per the above list enclosed and the petitioner had received full and final payment but they unduly delayed the possession of plot for no fault of the respondent causing undue harassment, mental agony and irreparable loss.
        The above said plot was allotted to the respondent with a provision to offer possession of the same after completion of its full development in the area at the earnest and not later than two years. But now more than 12 years have passed since the date of allotment of the said plot and the petitioner has not bothered to offer. The possession of the said plot to the respondent till this date after completion of full development work in the area, inspite of repeated requests and personal visits to the office of the petitioner.
        Time and again, the respondent has visited the site. During long spell of 12 years, the petitioner neither developed his site well nor supply of sewage system, water supply and other amenities. Facilities like community centre, school, health centre required for the residential colony as declared by the petitioner, has yet to be provided.
        Furthermore as the possession was not given even after 12 years it has another impact, i.e., the cost of construction, cost of steel, cement, building material and labour charges etc., has increased approximately by 300%. Thereby what could have been done at a cheaper rate, will now, be done with more.
        The petitioner/ opposite party in their reply have stated that paragraph no. 4 of the complaint is wrong, baseless and hence denied. The area of this plot is fully developed and only thereafter physical possession was offered to the allottee vide this office memo no. 2749 dated 29.06.2001. As per the terms and conditions of the allotment the respondent/ allottee was given an offer of possession, but the allottee failed to even start the construction work and hence he is bound to pay the extension fee as per HUDA policy.
        Paragraph no. 7 of the complaint was also denied by stating that the area is fully developed and physical possession had already been offered to the allottee on 29.06.2001. The allottee failed to start the constructions and complete the building within two years from the date of offer of possession.
        The District Consumer Disputes Redressal Forum, Gurgaon (in short, ‘the District Forum) came to the following conclusions after going through the file and hearing the parties:
Possession has been admitted to have been delivered during the proceedings. As per application dated 16.12.2005 conveyance deed is not being executed. It is ordered that the same be executed on furnishing papers by the complainant, if any, besides the complainant is awarded interest @ 18% per annum on deposits from the dates of deposits till the delivery of possession of his plot on the spot by demarcation and this interest is being awarded keeping in view the rise in construction cost so as to compensate him as he has been waiting for the plot since, 1993. During the arguments counsel for the complainant contended that another illegal demands have been raised vide memo no. 17260 dated 15.09.2005. We have perused the said letter Rs.8,246/- have been demanded as instalments due to on 15.10.2005 and Rs.88,335/- towards enhancement which could be recovered as per terms of the allotment. However, Rs.14,565/- demanded as extension fee could not be demanded as physical possession was delivered only on 24.10.2005. This last demand is struck down and this amount is ordered to be refunded to the complainant with interest as per HUDA policy from the date of deposit till the date of refund. As regards the plea that the complainant had already paid amount of instalment and enhancement in 10/99 and March 02 respectively, he has not mentioned any receipt number or date. He can agitate the matter again with the HUDA and in case the complainant paid amount of instalment and enhancement double, respondent is liable to refund the said amount to the complainant along with interest from the date of deposit till the date of refund as per HUDA policy. There will be no other orders as to costs. Compliance of the above order be made within one month from the receipt of the copy of this order”.
        Aggrieved by the order of the District Forum, the petitioner/ opposite party filed an appeal before the State Commission.  The State Commission in their order has recorded that “none has put in appearance on behalf of the appellant. Perusal of the file shows that this appeal is old one and relates to the year 2006. No one has taken care to appear on behalf of the appellant before this Commission from the last four consecutive hearings, i.e., 11.06.2007, 29.08.2007, 17.01.2008 and 27.01.2009. Even today none has appeared on behalf of the appellant. Since this appeal is old, therefore, we do not find any justification to adjourn the case time and again. Hence we proceed to decide this appeal after going through the case file”.
        The State Commission thereafter came to the following conclusion:
We have gone through the impugned order and taken into consideration the facts and circumstances of the case and are of the view that it is a case where the plot no. 1184, Sector – 9, Gurgaon was allotted to the complainant on 09.07.1993 whereas the physical possession of the same was handed over to the complainant on 24.10.2005 during the pendency of the proceedings before the District Forum, i.e., after a period of more than 11 years, which itself shows deficiency in service on the part of the opposite party. Therefore, we do not find any ambiguity or illegality in the impugned order passed by the District Forum. No case for interference in the impugned order is made out.
        No merit. Dismissed”.
        Hence, this present revision petition.
        The main grounds for the revision petition are as follows:
-          Forums below erred in facts and law, and have misread, misconstrued and misinterpreted the documentary evidence available on record and also the mandatory provisions of law applicable on that fact while passing the orders dated 20.11.2009. In fact the counsel for the petitioner was not present at the time of deciding the matter which devoid the petitioner herein being heard and explain the position of the matter before the State Commission. The petitioner thus lost the opportunity to bring the true facts before the Commission.

-          The Forums below failed to appreciate that the respondent herein is bound by the terms and condition of the allotment letter as well as provisions of Act, Rules and Regulation, policies instructions framed and issued in this regard from time to time. The respondent herein is bound by the aforementioned rules, instructions and policies of the petitioner herein and to pay the outstanding amount as demanded by the petitioner herein.

-          The Forums below have not taken into consideration that the offer of possession of the plot was made after completion of all the developments works on 29.06.2001. However, it was the respondent herein who instead of taking the possession filed the complaint with ulterior motives. The complaint was thus not maintainable. The District Forum has travelled beyond its jurisdiction in entertaining the complaint under the Act, which ought to have been dismissed.

-          The Forums below failed to appreciate that vide Memo no. 17260 dated 15.09.2005 demand of Rs.14,564/- as extension fees was rightly raised as the respondent herein has failed to construct the building as per the terms and conditions of the allotment and as per HUDA Policy. The Forums below erred in striking down the said demand even though the same was demanded as per rule and regulations of HUDA policy and as per the terms and conditions of the allotment letter.

-          The Forums below erred in awarding interest @ 18% per annum on deposits from the date of deposits till the delivery of possession of plot on the spot by demarcation. As already submitted the possession of the plot was offered on 29.06.2001 and it was the respondent who failed to take the possession of the plot, as such there is no deficiency in the service. Moreover the interest so awarded is too high.
I have heard the counsel for the petitioner and respondent in person and have gone through the record.
Nowhere in the revision petition has it been mentioned as to why no one had put in appearance on behalf of the petitioner/ appellant on the last four consecutive dates in the State Commission on 11.06.2007, 29.08.2007, 17.01.2008 and 27.01.2009. Thereafter the petitioner cannot complain that they were not given opportunity to bring the true facts before the State Commission.
The counsel for the petitioner drew my attention to the offer of possession dated 29.06.2001 and stated that it is the fault of the respondent that he did not take immediate possession. However, the respondent denied having received this communication. Counsel for the petitioner could not provide any evidence that the said communication had been received by the respondent.
Counsel for the petitioner then stated that the petitioner was objecting to pay 18% interest because as per the terms and condition of the allotment letter it was not due. He drew my attention to paragraph 7 of the allotment which states that “possession of the site will be offered to you on completion of the development works in the area, where situated”.
It is however, patently unfair that this clause is open ended with absolutely no time limit. The petitioner had taken full payment from the respondent by March 2002 with the first payment being taken in August 1992.
It is an undisputed fact that plot bearing no. 1184, Sector -9, Gurgaon was allotted by the petitioner to the respondent vide memo no. E O (G) /ALT – 9/ 961 dated 09.07.1993 at a tentative base price of Rs.22,836/-. Full and final payment including the escalated price was paid by 23.03.2002. However, the physical possession of the plot was given only on 24.10.2005. The respondent has now received both physical possession of the plot as also the conveyance deed. The petitioner is objecting to pay interest @ 18% per annum for the period upto 29.06.2001. The respondent has stated however, that since interest has not been paid till date, he should get the same even for the period beyond 2005.
In view of the above, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. However, as per the terms and conditions of the allotment letter, the interest payable by allottee in case of default is 15%. In all fairness and in the interest of equity and justice, the order of the District Forum is partially modified by reducing the rate of interest from 18to 15% per annum. Rest of the order stands as it is.
In view of the foregoing, the revision petition stands disposed of.

[Rekha Gupta]

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