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CASE NO.:

Appeal (civil) 5877 of 2002

PETITIONER:

Haryana Urban Development Authority

RESPONDENT:

Saurabh Aggarwal

DATE OF JUDGMENT: 24/09/2004

BENCH:

S.N. VARIAVA & A.K. MATHUR

JUDGMENT:

J U D G M E N T

S. N. VARIAVA, J.

Before this Court a large number of Appeals have been filed by

the Haryana Urban Development Authority and/or the Ghaziabad

Development Authority challenging Orders of the National Consumer

Disputes Redressal Commission, granting to Complainants, interest at

the rate of 18% per annum irrespective of the fact of each case. This

Court has, in the case of Ghaziabad Development Authority vs. Balbir

Singh reported in (2004) 5 SCC 65, deprecated this practice. This

Court has held that interest at the rate of 18% cannot be granted in all

cases irrespective of the facts of the case. This Court has held that the

Consumer Forums could grant damages/compensation for mental

agony/harassment where it finds misfeasance in public office. This

Court has held that such compensation is a recompense for the loss or

injury and it necessarily has to be based on a finding of loss or injury

and must co-relate with the amount of loss or injury. This Court has

held that the Forum or the Commission thus had to determine that

there was deficiency in service and/or misfeasance in public office and

that it has resulted in loss or injury. This Court has also laid down

certain other guidelines which the Forum or the Commission has to

follow in future cases.

This Court is now taking up the cases before it for disposal as per

principles set out in earlier judgment. On taking the cases we find that

the copies of the Claim/Petitions made by the Respondent/Complainant

and the evidence, if any, led before the District Forum are not in the

paper book. This Court has before it the Order of the District Forum.

The facts are thus taken from that Order.

In this case, the Respondent was allotted a plot bearing No.

4/13(P) Sector, Hisar on 4th April 1986. The Respondent paid

substantial amounts but the possession was not delivered. Thus the

Respondent filed a complaint. On these facts, the District Forum

awarded interest @ 18% p.a. on the deposited amount.

The State Forum confirmed the Order of the District Forum but

reduced interest from 18% to 15%. The Appellants went in Revision

before the National Commission. The National Commission dismissed

the Revision filed by the Appellants relying upon its own decision in the

case of Haryana Urban Development Authority v. Darsh Kumar and

observing that interest @ 18% p.a. has been allowed by them under

similar circumstances. As has been stated in so many matters, the

Order of the National Commission cannot be sustained. It cannot

dispose of the matters by confirming award of interest in all matters

irrespective of the facts of that case. It must, on facts of a case, award

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compensation/damage under appropriate heads if it comes to the

conclusion that such award is justified/necessary. Accordingly the Order

of the National Commission is set aside.

We are informed that the Appellants have offered possession on

22nd July 1997. Counsel had no instructions whether Respondent had

taken possession or not. Undoubtedly the Respondent will be entitled

to take possession, if he has not already taken possession. Appellants

will deliver possession without demanding any further or other

amounts.

We are informed that the Respondent has paid a sum of

Rs.1,68,338.25. We however find from the copy of the allotment letter,

filed in this Court along with the affidavit of the Estate Officer dated 29th

July 2004, that a sum of Rs.1,68,186.50 was payable. In the affidavit

the following statement is made:

"The interest on the amounts deposited by the

respondent has been adjusted on 25.5.1998 for an amount

of Rs.2,49,829.65 at the interest rate of 15% p.a."

Counsel had no instructions and could not explain what were the

amounts due from the Respondent which are supposed to have been

adjusted. As stated above Respondent has paid more than what he was

bound to pay. Also neither before the District Forum or the State

Forum or the National Commission and even in the Appeal Memo before

this Court is there a claim that Appellants have to recover amounts

from the Respondent. When the dispute has been subjudice the

Appellants are bound to put before the Court/Forum not just their

defence but also their claim/counterclaim, if any. Without permission of

Court the Appellants cannot set at naught awards of the Forum by

raising, outside Court, demands against the Respondents. It must be

remembered that the Appellants were to deliver possession within a

reasonable time. They do not offer possession till 22nd July 1997. As

can be seen from the Order of the District Forum possession was not

being offered because development work had not taken place. As they

were not in a position to deliver possession they cannot expect parties

like the Respondent i.e. allotees to keep on paying installments to

them. In such cases i.e. where Appellants are not in position to deliver

possession they cannot charge interest on delayed payments till after

they offer possession. Clause 6 of the letter of allotment also so

provides. It reads as follows:

"6. The balance amount i.e. Rs.1,26,139/50 of the above

tentative price of the plot/building can be paid in lump sum

without interest within 60 days from the date of issue of the

allotment letter or in six equal instalments. The first

instalment will fall due after the expiry of one year of the

date of issue of this letter. Each instalment would be

recoverable together with interest on the balance price at

10% interest on the remaining amount. The interest shall,

however accrue from the date of offer of possession."

Thus, interest could only have been charged from date of offer of

possession.

As we are unable to understand and Counsel has no instructions

to be able to explain why extra payment has been collected and/or what

adjustments are purported to have been made, we direct that

Appellants shall now recalculate in the manner set out hereunder. In

this case, Appellants must pay interest at 15% from date of each

deposit till date of payment. They will not charge interest on delayed

payments prior to 22nd July 1997. If by that date the original price of

Rs.1,68,186.50 had been paid they will not be entitled to and will not

charge any interest. If anything extra is recovered they will repay that

back to the Respondent with interest thereon at 15% from the date of

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such wrongful recovery till payment. We, however, clarify that if

Appellants have a claim and feel that they have to recover such

amounts from Respondent, they are at liberty to approach this Court for

clarification/modification of the Order and if on that application they are

permitted to so recover they may. But in the absence of any such

permission, they shall not recover anything extra/over and above the

allotment price of Rs.1,68,186.50.

Further, if TDS amount is deducted they will now pay that over to

the Respondent with interest thereon at the rate of 15% from date it

was so deposited till payment. Such recalculation to be made within 15

days from today and the amounts found due and payable to the

Respondent to be paid to him within 15 days thereafter. A compliance

report to be filed in this Court within one month from date. A copy of

the recalculation to be annexed to the compliance report.

We clarify that this Order shall not be taken as a precedent in any

other matter as the order is being passed taking into account special

features of the case. The Forum/Commission will follow the principles

laid down by this Court in the case of Ghaziabad Development Authority

vs. Balbir Singh (supra) in future cases.

With these observations, the Appeal stands disposed of with no

order as to costs.